Elissa Motelson,, et al., Appellants,v.Ford Motor Company, et al., Respondents. (And Another Action.)BriefN.Y.October 22, 2014APL-2013-00299 Richmond County Clerk’s Index Nos. 12660/01 and 13545/01 Appellate Division, Second Department Docket Nos. 2009-04215 and 2009-06707 Court of Appeals STATE OF NEW YORK Action No. 1 – Index No. 12660/01 MATTHEW MOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, ELISSA MOTELSON, as Administratrix of the Estate of infant BRIAN MOTELSON, Deceased, EVAN MOTELSON, an infant by his parents and natural guardians, ELISSA MOTELSON and MATTHEW MOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, MATTHEW MOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, individually, and ELISSA MOTELSON, individually, Plaintiffs-Appellants, against FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. >> >> To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes BRIEF FOR PLAINTIFFS-APPELLANTS IN ACTION NO. 1 THE LAW FIRM OF ALLEN L. ROTHENBERG Attorneys for Plaintiffs-Appellants in Action No. 1 By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Of Counsel: Marc J. Rothenberg Brian J. Isaac Date Completed: January 10, 2014 (Additional Caption On the Reverse) Action No. 2 – Index No. 13545/01 MICHAEL J. MOTELSON, as Administrator of the Estate of STEVEN MOTELSON, Deceased, and ENID MOTELSON, Plaintiffs-Appellants, against FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 JURISDICTIONAL STATEMENT ..................................... 4 INTRODUCTION ................................................. 4 STATEMENT OF THE CASE ........................................ 9 The accident; the litigation ............................ 9 Gary and Ewan’s injuries ............................... 12 Charge and Verdict ..................................... 15 Motions; Decisions ..................................... 17 Appeal ................................................. 18 QUESTIONS PRESENTED ......................................... 20 DISCUSSION .................................................. 21 POINT I THE TRIAL COURT’S INSTRUCTIONS TO THE JURY AND THE INTERROGATORIES ESTABLISH AS A MATTER OF LAW THAT ZONE OF DANGER INJURIES WERE LITIGATED; THE APPELLATE DIVISION’S HOLDING TO THE CONTRARY SHOULD BE REVERSED ............................................ 21 POINT II GRANDCHILDREN SHOULD BE ABLE TO RECOVER ZONE OF DANGER INJURIES UNDER BOVSUN ........................... 35 CONCLUSION .................................................. 43 ii TABLE OF AUTHORITIES State Cases Abramovich v. BOE, 46 NY2d 450 [1979]......................... 31 Alison D. v. Virginia M., 77 NY2d 651 [1991].................. 41 Alvord & Swift v. Muller, 46 NY2d 276 [1978].................. 23 Amin v. Soliman, 67 AD3d 835 [2d Dept. 2009].................. 37 Ayala v. V&O Press, 126 AD2d 229 [2d Dept. 1987].............. 23 Baker v. Shepard, 276 AD2d 873 [3d Dept. 2000]................ 38 Battalla v. State, 10 NY2d 237 [1961]......................... 36 Bichler v. Eli Lilly, 55 NY2d 571 [1982]...................... 31 Bolm v. Triumph Corp., 33 NY2d 151 [1973]...................... 7 Bovsun v. Sanperi, 61 NY2d 219 [1984]..................... passim Braschi v. Stahl Assoc., 74 NY2d 201 [1989]................... 41 Brennan v. Bauman & Sons, 107 AD2d 654 [2d Dept. 1985]........ 38 Broadnax v. Gonzalez, 2 NY3d 148 [2004]....................... 37 Calderon v. Irani, 296 AD2d 778 [3d Dept. 2002]............... 38 Calfus v. Margolies, 88 AD3d 528 [1st Dept. 1982] ............. 38 Caprara v. Chrysler, 71 AD2d 515 [3d Dept. 1979], affd., 52 NY2d 114 [1981] ................................... 31 Champion v. Gray, 478 SO2d 17 [Fla. 1995]..................... 42 Collesides v. Westinghouse Electric, 125 Misc.2d 413 [Sup. Ct. 1984] ............................................. 37 Culbert v. Sampsons, 444 A2d 433 [Me. 1982]................... 42 Cullen v. Naples, 31 NY2d 818 [1972].......................... 31 Dana v. Shopping Time, 76 AD3d 992 [2d Dept. 2010]............ 23 DeVito v. Katsch, 157 AD2d 413 [2d Dept. 1990]................ 39 iii Diaz v. NYCHHC, 289 AD2d 365 [2d Dept. 2001].................. 23 Dittmar Explosives v. AE Ottavanio, 20 NY2d 498 [1967]........ 22 Echavarria v. Cromwell Assoc., 232 AD2d 347 [1st Dept. 1996]............................................. 39 Endresz v. Friedberg, 24 NY2d 478 [1969]...................... 36 Fazzone v. Gourley, 1 AD3d 678 [3d Dept. 2003]................ 38 Feizi v. Second Russian Ins. Co., 199 AD 775 [1st Dept. 1922]............................................. 22 Ferrara v. Bernstein, 81 NY2d 895 [1993]...................... 36 Ferrara v. Galluchio, 5 NY2d 16 [1958].................... 35, 36 Fonzi v. Beishline, 270 AD2d 912 [4th Dept. 2000] ............. 37 Ford v. Martino, 281 AD2d 587 [2d Dept. 2001]................. 23 Garcia v. Rivera, 160 AD2d 274 [1st Dept. 1990], lv. den., 77 NY2d 981 [1991] ................................. 7 GMC v. Grizzle, 642 SW2d 837 [Tex. Ct. App. 1982]............. 42 Group House of Port Washington v. Board of Zoning, 45 NY2d 266 [1978] .......................................... 41 Guan v. Tuscan Dairy, 24 AD3d 725 [2d Dept. 2005]...... 9, 16, 39 Guggenheimer v. Ginzburg, 43 NY2d 268 [1977].................. 21 Howard v. Lecher, 42 NY2d 109 [1977].......................... 36 Hull v. Littauer, 162 NY 569 [1900]........................... 38 In Re: Jacob, 86 NY2d 651 [1995].............................. 41 In Re: Lackawanna & Western RR, 98 NY 447 [1885].............. 31 John Wm. Costello v. Standard Metals, 99 AD2d 227 [1st Dept. 1984]............................................. 23 Johnson v. State, 37 NY2d 378 [1975].......................... 36 Jorgenson v. BF Yenney Constr., 255 AD2d 1008 [4th Dept. 1998]............................................. 39 iv Kelly v. Burroughs, 102 NY 93 [1886].......................... 38 Kennedy v. McKesson, 58 NY2d 500 [1983]....................... 29 Knobloch v. Royal Globe Ins., 38 NY2d 471 [1976].............. 31 Lando v. State, 39 NY2d 803 [1976]............................ 36 Leon v. Martinez, 84 NY2d 83 [1994]........................... 22 Lomer v. Meeker, 25 NY 361 [1862]............................. 38 Martin v. Cohoes, 37 NY2d 162 [1975].......................... 31 Matter of Nowakowski, 2 NY2d 168 [1957]....................... 38 McDermott v. Coffee Beanery, 9 AD3d 195 [1st Dept. 2004] ...... 38 McDougald v. Garber, 73 NY2d 246 [1989]....................... 30 Mejia v. JMM Autobahn, 1 AD3d 261 [1st Dept. 2003] ............ 38 Mitchell v. NY Hospital, 61 NY2d 208 [1984]................... 31 Moliterno v. Community General, 282 AD2d 441 [2d Dept. 2001] ............................................. 39 Murray v. NYC, 43 NY2d 400 [1977]............................. 22 National Bank v. Rogers, 166 NY 380 [1901].................... 22 Nonnon v. NYC, 9 NY3d 825 [2007].............................. 22 Nussbaum v. Gibstein, 73 NY2d 912 [1989]...................... 30 NY Bankers v. Duncan, 257 NY 160 [1931]....................... 38 Oknubi v. NYC, 109 AD3d 888 [2d Dept. 2013]................... 39 Ornstein v. NYCHHC, 10 NY3d 1 [2008].......................... 35 Pizarro v. 421 Port Assoc., 292 AD2d 259 [1st Dept. 2002] ..... 39 Punsky v. NYC, 129 AD 558 [2d Dept. 1908]..................... 38 Rosario v. NYC, 261 AD2d 380 [2d Dept. 1989].......... 23, 26, 27 Rovello v. Orofino Realty, 40 NY2d 633 [1976]................. 22 Sanchez v. NYC, 97 AD3d 501 [1st Dept. 2012] .................. 38 v See, McDougald v. Garber, 73 NY2d 240 [1989]................... 8 See, Woodson v. NYCHA, 10 NY2d 30 [1961]...................... 38 Shappard-Mobley v. King, 4 NY3d 637 [2005].................... 37 Shiang v. Bears Estates, 194 AD2d 914 [3d Dept. 1993]......... 22 Shipley v. Williams, 14 Misc.3d 682 [Sup. Ct. 2006]........... 39 Sokol v. Leader, 74 AD3d 1180 [2d Dept. 2010]................. 21 St. Andrassy v. Mooney, 262 NY 368 [1933]..................... 38 Tebbett v. Virostek, 65 NY2d 931 [1985]....................... 36 Tobin v. Grossman, 24 NY2d 609 [1969]..................... 36, 38 Travelers Ins. v. General Accident, 28 NY2d 458 [1971]........ 31 Trombetta v. Conkling, 82 NY2d 549 [1993]..................... 39 Tsamasiros v. Hughes, 5 AD3d 377 [2d Dept. 2004].............. 30 TW Oil v. Con Ed, 57 NY2d 574 [1982].......................... 31 Upfront Industries v. US Industries, 63 NY2d 1004 [1984]...... 31 Valenti v. Camins, 95 AD3d 519 [1st Dept. 2012] ............... 23 Williams v. NYC, 71 AD3d 1135 [2d Dept. 2010]................. 38 Other Authorities PJI 2:284................................................. passim 1 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X MATTHEW MOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, ELISSA MOTELSON, as Administratrix of the Estate of infant BRIAN MOTELSON, Deceased, EVAN 2009-04215 MOTELSON, an infant by his parent and 2009-06707 natural guardian, ELISSA MOTELSON and ELISSA MOTELSON, individually, PLAINTIFFS-APPELLANTS’ BRIEF Plaintiffs-Appellants, -against- FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. ----------------------------------------X MICHAEL J. MOTELSON, as administrator of The Estate of STEVEN MOTELSON, Deceased, And ENID MOTELSON, Plaintiffs-Appellants, -against- FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. ----------------------------------------X PRELIMINARY STATEMENT Plaintiffs-appellants Matthew Motelson as administrator of the Estate of Gary Motelson, deceased (“Gary”), Elissa Motelson, as administratrix of the Estate of infant Brian Motelson, deceased (“Brian”), Evan Motelson, an infant (“Evan”), by his parent and natural guardian Elissa Motelson, and Elissa Motelson individually (“plaintiff[s]”), submit this brief in connection 2 with their appeal from the order of the Appellate Division, Second Department dated December 19, 2012 (1422-26)1 reversing the March 26, 2009 order of the Supreme Court, Richmond County (Maltese, J.) (26a-45a) which denied in part the post-trial motion of defendants-respondents Ford Motor Company (“FMC” or “Ford”) and Ford Motor Credit Company (“FMCC”) (“defendant[s]”) to set aside the jury verdict of March 22, 2008, but which granted plaintiff’s cross-motion to set aside the verdict and award plaintiffs damages they proved as a matter of law, but which the jury failed to award. This case arises from a multi-fatality crash that raises undecided substantive and procedural questions regarding the scope and intent of New York’s “zone of danger” law. On July 1, 2000, a 1988 Ford Explorer SUV suddenly went out of control and rolled over several times, killing the driver, Steven Motelson, and his nine-year-old grandson, Brian Motelson. Gary Motelson, Steven’s son, and Evan Motelson, Brian’s brother, sued, inter alia, for zone of danger damages in the Supreme Court, Richmond County. Following a lengthy trial, the jury found that Steven Motelson, the driver, was free of negligence, and awarded damages to his estate. It awarded no zone of danger damages to Gary or Evan, but the trial court (Maltese, J.) found that they were entitled to same as a matter of law. The Appellate Division 1 Numbers in parentheses refer to pages of the Appendix. 3 found that these injuries were not compensable because emotional injuries were not tried under this Court’s seminal decision in Bovsun v. Sanperi, 61 NY2d 219, 229-30 [1984]. Plaintiff moved for reargument or leave to appeal to this Court; the motion was denied; thereafter, on October 22, 2013, this Court granted plaintiff’s motion for that relief (1396-97). Essentially, the Motelsons’ contend that the Appellate Division’s denial of zone of danger injuries is contrary to the evidence; the Appellate Division, in overruling the trial court’s finding on what amounts to a pleading defect, undermined both the letter and the spirit of New York’s zone of danger law. The pivotal issue here is whether the Appellate Division committed reversible errors of fact and law when it found that the zone of danger injuries suffered by Gary and Evan were not compensable because the issue of emotional injuries was not tried under Bovsun. It is respectfully submitted that the Appellate Division’s decision in dismissing plaintiff’s case on what amounts to a pleading defect is not congruent with the facts, the case law, or common sense. The order should be reversed, with this matter being remitted to the Appellate Division, Second Department for 4 a determination of those issues not decided by virtue of that court’s decision.2 JURISDICTIONAL STATEMENT On October 22, 2013, after the Appellate Division, Second Department denied plaintiff’s motion seeking, in part, leave to appeal to this Court, this Court granted plaintiffs’ application for such relief (1396-7). This matter is in final repose, and the issues presented set forth pure questions of law within the jurisdiction of this Court. Plaintiffs complied with all deadlines for seeking leave to appeal, and have filed an appropriate brief and record in accordance with this Court’s scheduling order. This appeal is therefore properly before this Court. INTRODUCTION On July 1, 2000, Steven Motelson was driving a 1998 Ford Explorer SUV, which accelerated suddenly, swerved, and rolled over several times on New York Route 17 South. Gary, his son, was sitting in the front passenger seat; Gary’s sons, Brian (age 9) and Evan (age 5) were sitting in the rear with a family friend, Mitchell Slepian (age 21). As reflected in the Appellate Division decision (1422-26), the trial court’s extended order on 2 Michael Motelson and Enid Motelson are not parties to this matter, having received compensation pursuant to the Second Department’s order; they will be referred to herein as “co-plaintiff[s].” 5 the post-trial motion (26a-45a), and the motion papers (1041- 1392), Steven and Brian died, and it is undisputed that Gary and Evan Motelson suffered only profound psychological injuries (353-55).3 Gary was suspended by his seat belt and he watched the roof crush his father’s head (445-52). Evan was thrown from the vehicle and was emotionally traumatized in various ways, including witnessing the death of his grandfather (504). The Appellate Division found that there was sufficient evidence to support the roof design defect claim, and that it was not inconsistent to accept that claim while rejecting the breach of warranty claim, or to reject the speed control cable claim while finding that Steven did not operate the vehicle negligently. The Appellate Division, however, also found that the trial court should not have added awards for Gary and Evan’s claims because they were not pled, proven or litigated. The jury, however, was instructed specifically that if it found that plaintiffs were entitled to recover from the defendant, it “must also include…damages for any mental suffering; emotional and psychological injuries” (990). There is, we submit, no basis under New York law to bar recovery for zone of danger damages based on being belted or for any other unrelated conduct – yet the Appellate Division held that zone of danger injuries were 3 Evan’s pediatrician, Dr. Purow, testified that the seatbelt made visible marks on his body; otherwise he found no physical injury from the accident (353-4); all the other doctors who testified for Evan and Gary described psychological injuries only. 6 “subsumed into the pain and suffering questions” because “no separate causes of action sounding in infliction of emotional distress or zone of danger damages…were submitted to the jury” (1425-26), since the verdict sheet asked whether the roof defect caused Steven’s death (1090, 1092) and not whether it “caused injuries to any other plaintiff” (1425-26). But these were the only claims that Gary and Evan did litigate at trial and which defendants did not contest. The jury’s complicated verdict and the manner in which the case was tried and litigated simply does not, we submit, support the Appellate Division’s order and decision. As we alluded to previously, the Motelsons claimed at trial that a defectively designed speed control cable caused the Explorer to suddenly accelerate; that defective seatbelts unlatched during the rollovers, launching Evan and Brian from the Explorer; and that the Explorer was not crashworthy because its roof support system was inadequate to protect the driver during a rollover. The jury found that Ford was negligent in designing, inspecting and testing its roof support system and that this defect was “a substantial factor in causing Steven Motelson’s injury and death.” It awarded his estate $1,500,000 for lost earnings and $5 million to Enid Motelson for economic loss on the wrongful death claim. However, contrary to physical evidence that Brian and Evan were belted, the jury attributed 100% of 7 their injuries to their failure to wear seatbelts, and awarded no damages to Gary (who was belted and seated next to his father, Steven) or to his wife Elissa on her derivative claim. Ford moved to set aside the verdict for Steven Motelson’s estate; Gary, Elissa and Evan Motelson moved to set aside the verdict insofar as it failed to include “zone of danger” damages to Gary and Evan. Extensive motions and arguments ensued; on March 26, 2009, the trial court affirmed the award to Steven’s estate based on the roof defect under a “second collision” theory (31a-33a),4 but reduced the award to Enid to $3,673,000 and the lost earnings award to $1,327,000. And it found that Gary and Evan, as a matter of law, suffered profound “zone of danger” injuries, which Ford did not oppose or contradict at trial. Accordingly, the court held that Gary was entitled to $529,027 for prescriptions and medications, $2,160,028 for psychiatric care over 43.86 years, $250,000 for past pain and suffering and $250,000 for future pain and suffering and emotional distress over 43.86 years (36a-45a). Evan was awarded $1,558,440 for prescription medications, $3,149,500 for psychiatric treatment over 62.8 years, $250,000 for past pain and suffering and $500,000 for future pain and suffering (id.). Elissa was entitled to $150,000 for loss of services of Gary. 4 See, Garcia v. Rivera, 160 AD2d 274 [1st Dept. 1990]; lv. den., 77 NY2d 981 [1991]. See also, Bolm v. Triumph Corp., 33 NY2d 151 [1973]. 8 In this regard, it is important to note that multiple psychiatrists gave unrefuted testimony regarding Gary and Evan’s catastrophic psychological injuries, and an economist gave undisputed testimony as to the cost of their future psychiatric care and medications. In addition, as we will show in this brief infra, the verdict sheet was carefully tailored to preclude injuries for general grief or loss of a loved one, which are not, ordinarily, independently compensable under New York law. In fact, the verdict sheet clearly required proof that the defective condition of the roof was “a substantial factor in causing Steven Motelson’s injuries and death” consistent with Bovsun. In this regard, the Second Department itself recognized that there is no separate charge for “zone of danger injuries.” Consequently, PJI 2:284 represents the standard charge for emotional injuries of all kinds, and there is no legal basis to sub-divide psychiatric injuries. Indeed, such a practice tends to improperly inflate plaintiff’s compensation and is generally disfavored by the courts. See, McDougald v. Garber, 73 NY2d 240 [1989]. Accordingly, it was error for the Appellate Division to hold that Gary and Evan did not litigate the only claims for which they sought damages on every one of the three causes of action. 9 Also raised on this appeal is the question of whether, under New York law, a grandparent is an “immediate family member”, such that a child can recover damages for zone of danger injuries where he witnesses the horrific death of a grandparent. Although the Second Department in Guan v. Tuscan Dairy, 24 AD3d 725 [2d Dept. 2005], held that witnessing injuries to a grandchild did not give rise to a cognizable cause of action on behalf of a grandparent, this Court has never precisely defined the term “immediate family member,” and we submit that Guan is inconsistent with Bovsun, and with public policy, especially where a close family relationship is involved. Accordingly, this Court should reverse that portion of the Appellate Division’s order which held that plaintiffs could not recover for the emotional injuries they suffered as a result of being within the zone of danger of Steven because the zone of danger claim was not litigated.5 Subheadings are used herein for ease of reference. STATEMENT OF THE CASE The accident; the litigation On July 1, 2000, a clear and sunny day, Steven drove Gary, his adult son, and Steven’s grandchildren, Brian and Evan, and Mr. Slepian, to a Boy Scout camp; they put on their uniforms and 5 Unfortunately, the jury’s finding that Brian and Evan were unbelted precluded Brian’s estate from recovering any damages for his horrific death. 10 enjoyed the festivities. On the return home, Steven parked in a Dairy Queen so his passengers could have ice cream and shakes; Gary testified that after they returned to the car, Steven would not start until everyone was belted (436-48). They went onto New York Route 17 South; Steven and Gary listened to a Mets game on the radio (447-48). According to Gary, “All of a sudden for some reason the engine...raced”; the vehicle sped out of control and Steven was unable to brake; he was “straining” with “both hands on the wheel”, conduct Gary had never seen before (448-49). The SUV then veered to the left, brushed a reflector, returned to the road, and rolled over. Brian, Evan and Mr. Slepian were thrown from the vehicle, which landed on the driver’s side. Gary was suspended above his father by his seat belt and saw his father’s head crushed by the roof as life slipped away from him (448-51). Plaintiffs served a summons and complaint dated July 20, 2011 (1428-83), asserting three relevant liability claims: defective design of the speed control system of the vehicle, which caused the sudden acceleration; that the rear seatbelts unlatched without being manually disengaged because they were defectively designed and manufactured; and that the roof support system was defective because it was not crashworthy (9a). Emotional injuries were explicitly pled based on the fact that 11 Evan and Gary were within the “zone of danger” (1463-64, 1471- 72). Paragraphs 162-168 of the complaint (1463-64) set forth causes of action on behalf of Evan for intentional and negligent infliction of emotional distress because defendants “knew or should have known their acts and omissions, detailed above, could result in catastrophic physical injury and/or death, or the reasonable threat of physical injury or death, to the operators and passengers of its vehicles, causing emotional distress to such persons” (1464). Paragraphs 162 and 166 state: “Plaintiffs reassert each allegation set forth above as if fully rewritten herein.” Accordingly, these causes of action are not limited to plaintiff’s sudden acceleration/defective belt claims, but encompass the crashworthiness/roof defect claims pled in Paragraphs 12e, 22e, 33d, 39, 46e, 50e, 59, 60d and 132-46 (1431, 1434, 1436, 1438, 1440-41, 1443, 1458-60). The same claims on behalf of Gary are set forth in Paragraphs 203-09 of the complaint (1471-72). Paragraph 207 states, “Plaintiffs reassert each allegation set forth above as if fully rewritten herein” (1472). Accordingly, these causes of action are not limited to plaintiff’s sudden acceleration/ defective belt claims, but encompass the crashworthiness/roof defect claims pled in Paragraphs 12e, 22e, 33d, 39, 46e, 50e, 12 59, 60d and 171-187 (1431, 1434, 1436, 1438, 1440-41, 1443, 1466-68). It is not true, then, that plaintiffs did not plead or prove an emotional damage claim. In fact, the only claims asserted by Gary and Evan were for psychological injuries, which were indeed devastating. Gary and Evan’s injuries As the trial court noted (8a-9a), Gary saw his father’s head being crushed by the roof of the car; he saw his father’s head “swollen” with blood streaming “out of his ears and out of his nose”; when he was rescued from the seatbelt, he was told by passersby that his father was “gone” (450-51). Gary testified that his wife accused him of mourning for his father and not his son; he had nightmares and cried every night; he could not sleep; his relationship with his family was strained; he had problems with concentration and short term memory. He was under psychiatric care with Dr. Dorothy Ortiz-Tulla and took Paxil for depression, Clonazepan for anxiety, and Ambien to help him sleep (460-68). Family members testified to the effect of the accident on Gary. His brother Michael stated that while he had been a “people person, a schmoozer”, he had now become combative and difficult to deal with (631-32). His sister Gail Lietel said the Gary she knew prior to the crash “no longer exists – the last 13 time I saw that Gary was before June 1. That Gary no longer is here. Now he’s very impulsive. He is just anxious all the time, just very angry, and it’s not the same Gary” (314). His mother Enid said Gary “couldn’t concentrate, he couldn’t focus, and he couldn’t even really be in the same building where all those memories were, his best friend, which was his father…He had no direction, no focus, nothing. And it was killing him to try to be there all the time when we knew he couldn’t. And that was it, he just couldn’t cope with it” (668). Dr. Ortiz-Tulla testified that in her opinion Gary suffered “catastrophic mental symptoms from that injury. One being the diagnoses of post-traumatic stress disorder, major depressive disorder, generalized anxiety disorder, and symptoms of obsessive compulsive disorder” as a result of the accident and deaths (417). His ability to sleep, “get through daily activities” and care about himself and others was destroyed. He could not work with people and had no hobbies or interests. He was a “dead man walking” and a “time bomb” (416-19). His nightmares were “always about the loss of his father and loss of his son Brian” (411-12). His condition was permanent. He would require lifelong therapy to avoid further deterioration (419- 25). Reports of other doctors supported Dr. Ortiz-Tulla’s testimony. 14 Conrad Berenson testified in detail about the costs of future medical care and medications (533-36). Defendant declined to dispute the testimony of either Dr. Ortiz-Tulla or Dr. Berenson. As to Evan’s injuries, Dr. Richard DiTuri, his treating physician, stated that he treated him more than 150 times in four years, and described in detail the psychotherapy and medications he required (485-88, 496). Evan suffered from attention deficit hyperactivity disorder, was impatient, fidgety, overly talkative, and could not maintain any semblance of calm (490-91). He is forgetful, careless, dreamy, disorganized and easily distracted; he often loses things, and must concentrate hard to perform relatively mundane activities (491-92). He saw his grandfather die at the scene of the accident (495, 700) and had recurrent nightmares and dreams about his grandfather (497). He felt he was scarred and damaged for life and would always be unhappy (498). All this resulted from the accident and seeing his grandfather and his brother die (504). His disorders and impaired level of functioning were permanent and he would require further psychotherapy, medications and treatment for the rest of his life; he had suicidal ideation (505-511). Reports in evidence detailed these injuries. Defendants did not dispute this testimony and evidence. 15 Conrad Berenson estimated the costs of future psychiatric case at $3,149,500 to $7,442,681 (539). Future medicines would cost $1,558,440 to $3,521,652 (537). Defendants chose not to dispute this testimony in any way. Charge and Verdict The court charged emotional injuries as set forth in PJI 2:284 without objection (990). The verdict sheet is on pages 1082-1109 of the record. The court, in its charge, remarked that there was no separate line item in the PJI for emotional injuries, and none was indicated in the case law. Plaintiff’s counsel agreed, and defense counsel did not protest (990-91). The jury in its verdict rejected the sudden acceleration claim and the defective seatbelt claim; it did find for plaintiff on the roof design defect claim (1020-21, 1090-92). Specifically, the jury answered yes to Questions 7b and 9b, which asked whether the roof defect was “a substantial factor in causing Steven Motelson’s injuries and death” (1090-92). Thus, it went on to instruct the jurors to assess damages for Evan, Gary and Elissa (1101). We submit that given the undisputed testimony as to Gary and Evan’s injuries, the jury was required to award damages to them, including damages for emotional injuries. We note that defense counsel in both his opening and his summation conceded that Gary suffered terrible emotional 16 injuries as a result of the accident (118-19, 767, 1407); this is why the jury verdict sheet did not include a separate proximate cause question. Not only plaintiff (115-17, 870, 944- 45, 946-47) but also defendant (119) acknowledged these injuries. FMC’s counsel in summation stated, “No one is denying Gary suffered a horrible loss, the Motelson family, no one is disputing that. You saw when they put witnesses up to talk about how this family suffered, we didn’t ask them any questions. I told you during jury selection we do not dispute that...Now am I saying Gary’s lying? No, I am not saying that...We know he’s not functioning. We know, as his psychiatrist told us, he blames himself for the accident...it’s always on his mind” (767). “They didn’t prove a thing in this case except it was a tragedy for the Modelsons, and that we don’t disagree with” (id.). Evan’s psychiatrist testified that all his injuries resulted from his being in the car and witnessing the deaths of his grandfather and brother (504). He had devastating psychological injuries and an undisputed need for future medical care (506). As stated previously, the jury found that Evan and Brian were not wearing their seatbelts, and that the seatbelt and speed control cable systems of the vehicle were not defective; the jury attributed 100% of the injuries of Brian and Evan to their failure to wear seatbelts; it awarded no damages to Evan or Gary Motelson or to Gary’s wife Elissa on her derivative 17 claim. Michael Motelson, as administrator of Steven Motelson’s estate, was awarded $1,500,000 for Steven’s loss of earnings, and Enid Motelson was awarded $5 million for economic loss on the wrongful death claim (1018-34). Motions; Decision All parties moved and cross-moved to set aside some portion of the jury’s verdict. Defendants moved to set aside the verdict in plaintiff’s favor as being infected by error, legally insufficient or against the weight of the evidence. Gary, Elissa and Evan cross-moved to set aside the verdict based on the failure to award any damages to Gary and Evan for emotional distress, pain and suffering, need for future psychiatric care, and cost of future prescription medications, and to Elissa Motelson for loss of services. The trial court, after hearing argument and reviewing the extensive motion papers, issued a comprehensive opinion in which it found that plaintiffs established a proper basis for the imposition of liability for Steven Motelson’s wrongful death based on the roof defect, as the injuries would otherwise have been less severe under the “second collision doctrine” (31a- 33a). As to plaintiff’s cross-motion, the trial court believed the jury erred in finding that Brian and Evan were unbelted, but declined to set aside that finding (369-79). It did not set 18 aside the award as to Brian, finding that had he been belted he would not have suffered the brain injuries which resulted in his death (18a), but it found that the jury’s failure to award zone of danger damages “shocks the conscience” and therefore ordered an award to Gary in the amount of $529,027 for prescriptions and medications, $2,160,028 for future psychiatric care over 43.86 years, $250,000 for past pain and suffering and $500,000 for future pain and suffering and emotional distress over 43.86 years (40a-42a). Evan was awarded $1,558,440 for prescription medications, $3,149,500 for psychiatric treatment over 62.8 years, $250,000 for past pain and suffering and $500,000 for future pain and suffering (42a).6 The court took note of the $1,750,000 settlement defendants made with Mr. Slepian, who was thrown out of the car but did not witness the death of family members. Elissa was held entitled to $150,000 for loss of services of Gary. No award was made to Steven’s children for loss of guidance (42a-43a). Appeal On appeal to the Appellate Division, Second Department, plaintiffs prevailed on most issues (1422-26). The Appellate Division found that there was sufficient evidence to support the roof design defect claim (1425), that it was not inconsistent to accept that claim while rejecting the breach of warranty claim, 6 This was based on the undisputed testimony of plaintiff’s medical expert and economist. 19 that it was not inconsistent to reject the speed control cable claim while finding that Steven did not operate the vehicle negligently. The court denied defendant’s evidentiary claims, but found that the issue of whether Gary and Evan suffered emotional distress “was not submitted to the jury” as “The jury was instructed that, if it found that the plaintiffs were entitled to recover from the defendants it ‘must also include in [the verdict] damages for any mental suffering; emotional, psychological injuries.’...These are subsumed into the pain and suffering question” (1425-26). Because “no separate causes of action sounding in infliction of emotional distress or zone of danger damages resulting from Steven Motelson’s injuries and death were submitted to the jury”, Gary and Evan never litigated the one claim for which they sought damages. The verdict sheet “asked whether the negligent design of the roof was ‘a substantial factor in causing Steven Motelson’s injuries and death’ and not whether that defect ‘caused injuries to any other plaintiff’” (1426). Thus, the Supreme Court “should not have ruled that they were entitled to damages on that theory” (1426). But in fact, these were the only claims asserted and litigated by Gary and Evan. There is no separate line item interrogatory to distinguish “zone of danger injuries” from others of the same ilk; as the Appellate Division noted, PJI 2:284 represents the standard charge for emotional injuries of 20 all kinds. Accordingly, it was error for the Appellate Division to hold that Gary and Evan did not litigate the only claims for which they sought damages. Based upon the foregoing, this Court should reverse and remand, and hold that zone of danger injuries were litigated, and that plaintiffs are entitled to the damages awarded by the trial court. Moreover, it should hold that a grandchild may recover for injuries caused by being in an accident of this type and witnessing the death of a grandparent. QUESTIONS PRESENTED 1. Are members of the same family who survive a catastrophic automobile crash that causes the death of a parent/grandparent due to a defect in the vehicle entitled to “zone of danger” damages as a matter of New York law? This question should be answered in the affirmative. 2. Can a grandchild recover “zone of danger” damages under New York law for witnessing the death of a grandparent? This question should be answered in the affirmative. 3. Does a defendant’s decision not to oppose undisputed testimony and evidence regarding “zone of danger” injuries mean they have not been litigated at trial? This question should be answered in the negative. 4. Does a verdict sheet, submitted without objection, that directs jurors to award damages despite not containing a 21 proximate cause question because defendants have conceded the proximate cause issue, bar plaintiffs from entitlement to damages? This question should be answered in the negative. 5. Under New York law, what is the proper scope of appellate review of a trial court’s rulings based on undisputed testimony and evidence? This Court should hold that same must be accepted absent a compelling reason to reject it. DISCUSSION POINT I THE TRIAL COURT’S INSTRUCTIONS TO THE JURY AND THE INTERROGATORIES ESTABLISH AS A MATTER OF LAW THAT ZONE OF DANGER INJURIES WERE LITIGATED; THE APPELLATE DIVISION’S HOLDING TO THE CONTRARY SHOULD BE REVERSED The summons and complaint (1428-83) alleges zone of danger damages for Gary (1471-72) and Evan (1463-64) specifically, and also contains general zone of danger emotional injury claims. Accordingly, under the liberal pleading rules of New York, defendants knew and defended against emotional injury claims resulting from a zone of danger argument. The Appellate Division’s holding that plaintiffs did not litigate or prove those claims was simply wrong. A complaint is sufficient under New York law if it indicates that plaintiff possesses a cause of action – whether or not the document actually pleads one. See, Sokol v. Leader, 74 AD3d 1180 [2d Dept. 2010]; Guggenheimer v. Ginzburg, 43 NY2d 22 268, 275 [1977]. Dismissal is not warranted where evidentiary facts establish the propriety of the claim. See, Nonnon v. NYC, 9 NY3d 825 [2007]; Rovello v. Orofino Realty, 40 NY2d 633, 636 [1976]; Leon v. Martinez, 84 NY2d 83 [1994]. As this Court observed in 1901 in National Bank v. Rogers, 166 NY 380, 387-8 [1901], “If the question were presented upon demurrer, we should probably hold the admission of the allegation of non-payment to be fatal to the complaint [cits.], but in such case an amendment upon terms would be permitted. Where the defendant reserves the objection until the trial is moved, if the objection is sustained, it is no error for the court to refuse to dismiss the complaint; it may permit the amendment. Such amendment supplies ‘an allegation material to the case.’ The omission of the allegation was so obvious in inadvertence that its correction could not have misled the defendants.” See, Dittmar Explosives v. AE Ottavanio, 20 NY2d 498, 502-3 [1967] (Complaint could be amended even after trial to add Lien Law claim); Murray v. NYC, 43 NY2d 400, 405-6 [1977] (Court has discretion to grant leave to amend “on a sui generis basis” where “no prejudice is shown” at any time, even “after judgment”); Feizi v. Second Russian Ins. Co., 199 AD 775 [1st Dept. 1922]. See generally, Shiang v. Bears Estates, 194 AD2d 914 [3d Dept. 1993]. 23 “With the advent of modern principles underlying the CPLR”, application of the “archaic rule” that judgment as a matter of law should be granted to a defendant where plaintiff’s “submissions but not his pleadings made out a cause of action” is “dead hand” (Alvord & Swift v. Muller, 46 NY2d 276, 281 [1978]); where any viable cause of action is alleged and supported by admissible evidence, an action should not be dismissed for pleading defects (Ayala v. V&O Press, 126 AD2d 229, 234 [2d Dept. 1987]; Dana v. Shopping Time, 76 AD3d 992 [2d Dept. 2010]). In fact, judgment as a matter of law may be granted on an unpled cause of action or defense given adequate proof and lack of prejudice (John Wm. Costello v. Standard Metals, 99 AD2d 227 [1st Dept. 1984]). Motions to amend may be made after trial or even after judgment has been entered, and should be granted in the absence of prejudice or surprise from delay (Diaz v. NYCHHC, 289 AD2d 365 [2d Dept. 2001]; Ford v. Martino, 281 AD2d 587 [2d Dept. 2001]). An unpled issue may be raised in a summary judgment motion in the absence of surprise or prejudice (Valenti v. Camins, 95 AD3d 519 [1st Dept. 2012]; Rosario v. NYC, 261 AD2d 380 [2d Dept. 1989]). Here, the pleadings, especially when supplemented by the proof, stated an appropriate claim for injuries based on Gary’s and Evan’s being within Steven’s “zone of danger” as his head 24 was crushed by the roof of the car. Defendants, in fact, evidenced their awareness of the claim in statements that are part of the record. In his opening statement to the jury (118- 19), defense counsel stated: “We’re here today because of a tragic accident; two people lost their lives, Brian and Steven Motelson, and two others in the vehicle, Evan and Gary Motelson, suffered significant injuries” (118-19). In summation, defendants told the jury (767, 1407): “No one is denying that Gary suffered a horrible, horrible loss... No one is disputing that; you saw that when witnesses got up to talk about how this family has suffered, we didn’t ask them any questions. I told you during jury selection that we do not dispute that.” As we have shown, on the facts there is no question that plaintiffs suffered horrific psychological injuries during the subject accident due to seeing the roof collapse and Steven’s skull being crushed as a result of the design defect. Gary was suspended by his seat belt at the time and saw his father die while in his immediate vicinity (448-52), and the evidence of his and Evan’s resulting personality changes is undisputed. Dr. Ortiz-Tulla, Gary’s treating psychiatrist, testified to this effect, stating that he is disabled for life and has little hope of substantive improvement (388-425). Dr. Berenson, a well- credentialed economist, projected the costs of Gary’s care (533- 25 36), which were undisputed, as noted in the trial court’s order. Ellen Conover, a witness, testified that Evan saw everything – he even saw Steven being taken out of the vehicle, placed on the macadam and covered with a sheet (700). Dr. DiTuri testified that all Evan’s psychiatric injuries and overlays resulted, in part, from witnessing the death of his grandfather (504) in the subject accident (479-735); Dr. Berenson gave undisputed testimony as to the cost of his psychiatric treatment (535-39). Thus, treating physicians and an economist confirmed the injuries, all psychiatric in nature, and the costs of treatment, without objection by the defendant. The Appellate Division’s decision found that the jury’s affirmative finding as to causation of Steven Motelson’s death “was supported by legally sufficient evidence and the weight of the credible evidence” based on “evidence of a safer and feasible design” for the roof, which “would have avoided” Steven Motelson’s “life-threatening injuries” (1425-26). The Second Department also rejected defendant’s contention that the jury verdict was inconsistent, noting that the roof could be fit for ordinary purposes “but not crashworthy due to a design defect.” It rejected the assertion that Steven’s non-negligence was inconsistent with a finding that the speed cable system was not defectively designed, as the two issues were not inextricable 26 (id.). How then could the Appellate Division hold that the zones of danger injuries were not submitted to the jury? Apparently, the Appellate Division, unlike the trial court, misunderstood the verdict sheet, which certainly did not evince an intention to omit zone of danger emotional injuries, but merely took into account that they required proof of causation as to Steven’s death and its effect on Gary and Evan with respect to the roof design claim. Since defense counsel conceded in his opening and summation that Gary and Evan sustained significant psychological injuries (118-19, 767, 1407), no proximate cause question was submitted to the jury once it found the roof defect was a proximate cause of Steven Motelson’s death. In Bovsun, this Court held that a bystander may recover damages for emotional distress caused by observing serious physical injury or death to an immediate family member, if such observation is contemporaneous, if the plaintiff is in the zone of danger due to the defendant’s negligence, if defendant’s conduct was a “substantial factor in bringing about such injury or death”, and if the emotional distress is “serious, verifiable [and was] tied, as a matter of proximate causation, to the observation of the serious injury.” In its brief to the Second Department, Ford specifically pointed out that plaintiff must be “threatened with bodily harm” 27 “in consequence of defendant’s negligence”, and both defendants criticized the trial court for failing to distinguish between “emotional distress and psychological injuries resulting from the accident (for which Ford was not liable) and those resulting from a fear of injury from the defective roof (the only basis of liability)” (Brief at 21). We believe the Appellate Division was misled by that argument, or misunderstood it. The trial court’s focus on the fact that the roof crush had to cause the death of Steven Motelson satisfied the requirements set forth in Ford’s brief – the jury found that Ford was “negligent in failing to use reasonable care in designing, inspecting and testing the roof support system” of the vehicle (1021, 1092), and that such negligence was “a substantial factor in causing Steven Motelson’s injuries and death” (id.), and that the roof system was “defectively designed” and was a “substantial factor in causing Steven Motelson’s injuries and death” (1020, 1040). Plaintiff’s proposed verdict sheet (1485-1504) asked whether any negligence in designing, inspecting and testing the roof support system of the vehicle was a “substantial factor in causing plaintiffs’ injuries and/or deaths” (Questions 3a-b, 7a- B, 10a-b, 1489, 1492-93, 1495-06). Thus, in focusing on Steven Motelson as the only one physically injured by the roof, the trial court in the wording of its charge, in effect, took note 28 of Ford’s assertion that zone of danger damages must be “in consequence of defendant’s negligence.” In this regard, Page 16 of the trial court’s verdict sheet (1097) instructed the jury to continue answering damage questions concerning Evan Motelson if it answered “Yes” to any of the following liability questions: 1b, 2b, 3b, 4b, 5b, 6b, 7b, 8b, 9b, 10b, 11b, 12b or 13b. Page 20 of the verdict sheet (1101) instructed the jury to continue answering damage questions concerning Gary and Elissa Motelson if it answered “Yes” to any of the following liability questions: 4b, 5b, 6b, 7b, 8b, 9b, 10b, 11b, 12b or 13b. Because the jury did answer, “Yes” to questions 7b and 9b, it was required to compensate Evan, Gary and Elissa Motelson pursuant to the court’s verdict sheet and charge. The record clearly shows that the jury verdict sheet and charge, to which defendant proffered no timely objections, properly incorporated all the theories of liability, and, in conformity with defendants’ argument, limited zone of danger claims with respect to the roof to a finding by the jury that the roof was defective and that such defect caused the death of Steven Motelson, thus setting forth the predicate for zone of danger damages for Evan and Gary under Bovsun. In this regard, the trial court specifically recognized this when it found the jury’s failure to issue damages to Gary and Evan for emotional 29 distress and to Elissa for loss of services “shocks the conscience” (40a). In addition, we note that there were no objections to the verdict sheet in respect to these questions (Trial record, pp. 2942-44). Also pertinent to this issue is the fact that the jury was charged, pursuant to PJI 2:284, as follows: If you find that plaintiffs/decedents are...entitled to recover from the defendants, you must also include in your verdict damages for any mental suffering, emotional and psychological injuries. These are subsumed in emotional distress into the pain and suffering questions (990). The Appellate Division justified its non-suit of plaintiffs on pleading grounds, asserting that psychological damages were “subsumed into the pain and suffering questions”, such that the damages are not itemized. This was plainly erroneous because there is no separate charge for zone of danger damages in the Pattern Jury Instructions. PJI 2:284 bases the charge on Bovsun and Kennedy v. McKesson, 58 NY2d 500 [1983]. The trial court’s charge, therefore, correctly reflected how juries under New York law are directed to compute emotional injuries, whether based on zone of danger claims or some other emotional injury claim. Gary and Evan were thus entitled to damages from being within the zone of danger and from witnessing Steven’s injury and death due to the defective design of the roof – the only claims being made on their behalf with respect to the roof defect theory upon 30 which they prevailed. In particular, no evidence was submitted and no expert testified regarding orthopedic, neurological or other physical injuries suffered by Gary or Evan – rather, Dr. Puro testified regarding seatbelt marks he found on Evan’s abdomen. Thus, no special verdict sheet or special charge was necessary. The trial court’s jury charge recognized that the PJI contains no separate charge for zone of danger injuries, which are included within PJI 2:284 (1143-44). When the court stated that mental, emotional and psychological injuries were compensable and were “subsumed...into the pain and suffering questions”, plaintiff’s counsel responded, “Correct”; the court added, “There’s not a separate question for that” (1144). Defense counsel took no issue with these statements. Plaintiffs should not be penalized for not requesting a charge that does not exist, or for seeking sub-species of the same injuries without making unnecessary distinctions. See, McDougald v. Garber, 73 NY2d 246 [1989] (Loss of enjoyment of life not a separate element of pain and suffering and should not be listed as such); Nussbaum v. Gibstein, 73 NY2d 912 [1989] (Accord). Yet, had plaintiff made such requests, same would in all probability have been denied under the relevant case law. See, Tsamasiros v. Hughes, 5 AD3d 377 [2d Dept. 2004]). 31 Indeed, the Appellate Division penalized plaintiffs for defendant’s failure to request separate interrogatories if it wanted such a distinction made. The charge that was given thus became the law of the case under which the sufficiency of the evidence was to be judged. See, Upfront Industries v. US Industries, 63 NY2d 1004 [1984]; Bichler v. Eli Lilly, 55 NY2d 571 [1982]; Knobloch v. Royal Globe Ins., 38 NY2d 471, 477 [1976]; Martin v. Cohoes, 37 NY2d 162 [1975]. Failure to object to a question on the jury verdict sheet leaves the issue unpreserved for appellate review (Caprara v. Chrysler, 71 AD2d 515 [3d Dept. 1979], affd., 52 NY2d 114 [1981]). Here, defendants charted their own course in litigation (Travelers Ins. v. General Accident, 28 NY2d 458 [1971]; In Re: Lackawanna & Western RR, 98 NY 447 [1885]); they waived their right to object to the jury verdict on emotional damages (Abramovich v. BOE, 46 NY2d 450 [1979]) by fashioning the basis upon which this controversy would be resolved (Mitchell v. NY Hospital, 61 NY2d 208, 214 [1984]; Cullen v. Naples, 31 NY2d 818, 820 [1972]). The parties’ agreements as to how damages were to be determined must “control on appeal” (TW Oil v. Con Ed, 57 NY2d 574, 587 [1982]). The charge and interrogatories made it perfectly clear below that Gary’s and Evan’s emotional damages were not to be based on general grief over the crash or the death of family 32 members. The trial court inquired whether the jury must include damages for “mental suffering, emotional, psychological injuries” and whether those damages were “subsumed” into “the pain and suffering questions”; the court specifically asked Mr. Rothenberg, plaintiff’s counsel, whether this thesis was “correct”, to which he stated, “That’s correct, Your Honor”; the court then stated, “There’s not a separate question [on the jury verdict sheet] for that” (1143-45). Defense counsel offered no objection to that ruling. Furthermore, the charge itself does not contain specific language from Bovsun on “zone of danger” damages because the PJI contains no such language or commentary and “zone of danger” damages are, by definition, identical to emotional damages that are compensable in a personal injury case which is not based on Bovsun. Defendants, in this regard, no doubt recognized that these plaintiffs’ claims were entirely psychological in nature and that Gary and Evan sought no damages for physical injuries. But even if they were not, the charge, which became the law of the case and determines the basis for review of the damage award, fully supports the trial court’s award. It is plaintiff’s position that the jury verdict sheet and charge properly incorporated all the theories of liability, and limited zone of danger claims with respect to the roof to a finding by the jury that the roof was defective and that such 33 defect caused the death of Steven Motelson, thus setting forth the predicate for zone of danger damages for Evan and Gary under Bovsun. Defendants concession that Gary and Evan sustained “significant” psychological injuries (118-119; 767), eliminated the need for a proximate cause question on the verdict sheet concerning Gary and Evan once the jury found the Explorer’s roof defective and the proximate cause of Steven Motelson’s death. Defendants may also argue that the zone of danger issue was not tried in the trial court because the injuries plaintiffs sustained as a result of being within the zone of danger were not distinguished from injuries relating to general grief resulting from the accident itself. However, the interrogatories in this case carefully precluded testimony on emotional injuries occasioned by the deaths generally, permitting zone of danger injuries only in connection with Steven’s death due to the defectively designed roof. The jury verdict sheet was submitted to the jury without objection. Defense counsel did not cross-examine plaintiff’s psychiatrists or challenge any testimony regarding psychological injuries or future costs. Jurors were instructed to calculate damages for Gary and Evan upon a finding that the roof defect was a proximate cause of the death of Steven Motelson, which was within the zone of danger (1148-66). 34 Defendants may also assert that zone of danger injuries were unavailable because Gary and Evan were not endangered – a specious argument under Bovsun. Gary and Evan were in the car; the roof was above the heads of all the occupants; the jury found that the roof support system was negligently designed, inspected and tested. How can it be said that Gary and Evan were not threatened with injury? In Bovsun, the plaintiffs were in a vehicle with their husband and father, and did not actually see him being injured because he was outside the vehicle when he was struck by defendant’s automobile. However, they immediately knew he had been injured, and saw him in that condition; accordingly, this Court held their claims “sufficient, if substantiated by the evidence, to entitle plaintiffs to recover for their asserted emotional distress damages.” Here, plaintiff’s claim is stronger, because Gary and Evan were in the vehicle with their father/grandfather and saw him crushed and killed by the roof, which was above their own heads. For all these reasons, it was error for the Appellate Division to find that plaintiffs never tried or proved a claim for zone of danger injuries, and its ruling on this issue should be reversed in all respects. 35 POINT II GRANDCHILDREN SHOULD BE ABLE TO RECOVER ZONE OF DANGER INJURIES UNDER BOVSUN Plainly, the goal of tort law is to fully compensate individuals for injuries they sustain as a result of another’s breach of a duty of care (Ornstein v. NYCHHC, 10 NY3d 1 [2008]). A review of this Court’s evolving law on emotional injuries indicates that under Bovsun a child should be able to recover for being within the zone of danger when he or she witnesses the death of his grandparent. “Freedom from mental disturbance is now a protected interests in this State. [The] only valid objection against recovery for mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle…Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence, and deny it when there is nothing to corroborate the claim, or to look for some guarantees of genuineness in the circumstances of the case…It is not necessary to deny a remedy in all cases because some claims may be false… The tendency of the recent cases is to refuse to admit incompetence to deal with such a problem, and to find some basis for redress in a proper case (Ferrara v. Galluchio, 5 NY2d 36 16, 21 [1958]). The Ferrara court admitted a claim for “exceptional mental suffering over the possibility of developing cancer” (id. at 22). Physical injury is not always necessary to recover for emotional injuries (Battalla v. State, 10 NY2d 237 [1961]; Johnson v. State, 37 NY2d 378 [1975]; Lando v. State, 39 NY2d 803 [1976]). The same is true of a special duty to the party claiming an emotional injury. But see, Tobin v. Grossman, 24 NY2d 609 [1969]. Emotional damages may also be recovered where it arises out of physical injury to a third person. But see, Howard v. Lecher, 42 NY2d 109 [1977]. Emotional injuries may be recoverable based on harm to a fetus. In Endresz v. Friedberg, 24 NY2d 478 [1969], this Court declined to recognize a wrongful death claim for a stillborn fetus, but did hold that the mother could recover for physical and mental injuries, including emotional distress attending the stillbirth, because the medical defendants owed a duty to her and she was also physically injured. See also, Ferrara v. Bernstein, 81 NY2d 895 [1993] (Plaintiff advised she might still be pregnant, had unsuccessful abortion and miscarriage, required psychiatric care; viable claim for emotional distress). And where medical malpractice results in a stillbirth, parents may still be able to recover emotional damages even where the mother suffered no injuries of her own (Tebbett v. 37 Virostek, 65 NY2d 931 [1985]). In Broadnax v. Gonzalez, 2 NY3d 148 [2004] (See also, Amin v. Soliman, 67 AD3d 835 [2d Dept. 2009]), this Court held that no independent physical injury need occur for a mother to recover for emotional distress associated with the stillbirth of her child caused by medical malpractice. Later, this Court held that she could recover for such distress even where the child was born alive after an in utero injury. See, Shappard-Mobley v. King, 4 NY3d 637 [2005]. In Bovsun, this Court expressly adopted the “zone of danger rule”, under which an uninjured bystander can recover damages for emotional distress if he observes a member of his immediate family suffering serious physical injury or death as a result of the defendant’s conduct, experiences shock or fright, and is exposed to an unreasonable physical risk. The plaintiffs here were part of the accident and were certainly in the zone of danger. See, Fonzi v. Beishline, 270 AD2d 912 [4th Dept. 2000] (Couple walked into street because of construction barricade; wife was struck and killed by motorcycle); Collesides v. Westinghouse Electric, 125 Misc.2d 413 [Sup. Ct. 1984] (Daughter injured by escalator; mother was near escalator and could have been injured herself). At bar, Gary saw Steven’s head crushed; Steven was his father. Evan was six years old and saw his grandfather die. The Bovsun court did not have occasion to discuss the scope of the 38 term “immediate family” because, as noted in footnote 13, all the plaintiffs were “married or related in the first degree of consanguity to the injured deceased person.” But the tenor and tone of the opinion strongly suggest7 that Evan would come within the ambit of “immediate family.” The Bovsun court recognized that the notion of zone of danger injuries “involves a broadening of the duty concept” (61 NY2d at 229); it was approved by the authors of the Restatement of Torts (id. at 229- 30) and the “circumscribed” relief requiring physical presence in the zone of danger and the witnessing of serious injury or death to an immediate family member comports with the requirements set forth in Tobin v. Grossman, supra (id. at 230). The situation, after all, is not very common (id. at 229). The rule is not “overly susceptible to fraudulent claims” and the emotional injuries are not “incapable of acceptable proof” (id. at 231). 8 7 There can be no dispute that Gary has an “immediate” family relationship with his father, Steven. 8 A jury, of course, need not accept undisputed testimony (Matter of Nowakowski, 2 NY2d 168 [1957]; NY Bankers v. Duncan, 257 NY 160 [1931]; see also, Brennan v. Bauman & Sons, 107 AD2d 654 [2d Dept. 1985]; Punsky v. NYC, 129 AD 558-9 [2d Dept. 1908]; McDermott v. Coffee Beanery, 9 AD3d 195 [1st Dept. 2004]); it may accept an expert’s opinion in part (Mejia v. JMM Autobahn, 1 AD3d 261 [1st Dept. 2003]). But there must be a reason for rejecting such testimony. See, Woodson v. NYCHA, 10 NY2d 30, 32 [1961]; St. Andrassy v. Mooney, 262 NY 368 [1933]; Hull v. Littauer, 162 NY 569 [1900]; Sanchez v. NYC, 97 AD3d 501, 506 [1st Dept. 2012]; Williams v. NYC, 71 AD3d 1135 [2d Dept. 2010]; Fazzone v. Gourley, 1 AD3d 678 [3d Dept. 2003]; Calderon v. Irani, 296 AD2d 778 [3d Dept. 2002]; Baker v. Shepard, 276 AD2d 873, 875 [3d Dept. 2000]; Calfus v. Margolies, 88 AD3d 528 [1st Dept. 1982]). That a witness is interested in the event does not alone establish a basis to reject the testimony (Kelly v. Burroughs, 102 NY 93 [1886]; Lomer v. Meeker, 39 As we noted above, the injuries here were, as required, directly tied to the death of Steven and the conduct of the defendant (id. at 231-32). This Court in Bovsun remarked that its ruling could be viewed as constituting “an enlargement of the scope of recoverable damages” (id. at 233). On the whole, then, Bovsun supports plaintiff’s position at bar. This is not a case of the type where zone of danger rules were specifically held not to apply. See, Trombetta v. Conkling, 82 NY2d 549 [1993] (Aunt); Pizarro v. 421 Port Assoc., 292 AD2d 259 [1st Dept. 2002] (Stranger in elevator); Moliterno v. Community General, 282 AD2d 441 [2d Dept. 2001] (Unrelated fellow mental patient); Jorgenson v. BF Yenney Constr., 255 AD2d 1008 [4th Dept. 1998] (Non-related persons killed by construction blast). True, in Guan v. Tuscan Dairy, supra, a grandparent was denied recovery for zone of danger injuries, but there is also authority to the contrary. See, Shipley v. Williams, 14 Misc.3d 682 [Sup. Ct. 2006] (Siblings). We ask this Court to hold that a grandparent or grandchild can be an immediate family member. The relationship can be very tender and may even be more sensitive 25 NY 361 [1862]). Here, defendant did not set forth any alternative cause for the plaintiffs psychological injuries – in fact, counsel conceded that they were caused by what they saw at close range during the accident (See, DeVito v. Katsch, 157 AD2d 413 [2d Dept. 1990]). Counsel’s concessions established that the accident caused the injuries (Oknubi v. NYC, 109 AD3d 888 [2d Dept. 2013]; Echavarria v. Cromwell Assoc., 232 AD2d 347 [1st Dept. 1996]. 40 than the parent-child relationship since often grandparents are not required to administer discipline. In the Tribune of India on May 25, 2003, Sanskriti Khanna described the relationship as follows: “Grandparents are the best friends a child can have. It is needless to say that there is a strong and natural bond of affection between grandparents and grandchildren that remains without any parallel. It is no wonder, then, that as children our lives are greatly influenced by our grandparents. Our future, too, is fashioned by them to a great extent.” A study by Moorman and Stokes presented at the 108th Annual Meeting of the American Sociological Association in New York City found that the impact of grandparents persists into adulthood. See, Moorman & Stokes, “Does Solidarity in the Grandparent- Grandchild Relationship Protect Against Depressive Symptoms?” See, Fogarty, “The Protective Role of Grandparents”, Univ. Florida, Family Youth & Consumer Sciences Newsletter [2007]; see generally, Gavin, “Bonding With Grandparents”, http://kidshealth.org. “It is my belief that grandparenting is the most important family role of the new century... Today, there is a growing alliance of grandparents who will positively influence the lives of their grandchildren, and the younger generations in their society, some by providing urgently needed daily care, others by building deep emotional connections with their grandchildren” (Roma Hanks, 41 “Connecting the Generations: The New Role of Grandparents”, Harbinger, Mobile, AL [1997]). Age only intensifies the relationship (Kemp, “Dimensions of Grandparent-Adult Grandchild Relationships: From Family Ties to Intergenerational Friendships”, Can. Jnl. Aging, 24:2:161-77 [Summer 2005]). The relationship is “magical” (Coall, Hertwig, “Grandparental Investment: Past, Present and Future”, Behavior Brain Science, 33:1-9, 19-40 [February 2010]), unique and irreplaceable (Barranti, “The Grandparent-Grandchild Relationship: Family Resource in an Era of Voluntary Bonds”, Family Relations: Journal of Applied Child and Family Studies, 34[3], 343-52). A functional analysis of the idea of family comports with decisions in other areas of law. In Group House of Port Washington v. Board of Zoning, 45 NY2d 266 [1978], a group of unrelated individuals were considered a family for purposes of a statute where they lived together in a manner that was the “functional equivalent” of family. In Braschi v. Stahl Assoc., 74 NY2d 201 [1989], a rent control statute was construed to include as family a person whose relationship to the leaseholder was the equivalent of family. In Re: Jacob, 86 NY2d 651 [1995], the unmarried partner of a child’s biological parent was held entitled to adopt it because he actually functioned in a parental role. Decisions to the contrary in Trombetta and in Alison D. v. Virginia M., 77 NY2d 651 [1991] (Former homosexual 42 partner not a parent for visitation purposes) are not conclusive since there is a biological link in this case. Some states have increased the geographic area in which zone of danger injuries can be sought (GMC v. Grizzle, 642 SW2d 837, 844 [Tex. Ct. App. 1982]), expanded the definition of family member (Champion v. Gray, 478 SO2d 17, 20 [Fla. 1995]), or eliminated the requirement of a physical manifestation (Culbert v. Sampsons, 444 A2d 433, 438 [Me. 1982]). For all these reasons, we believe this Court should hold that a child who witnesses the horrific death of his grandfather while within the zone of danger has a cognizable emotional damages claim under the zone of danger theory ratified in Bovsun. This rule should apply even if this Court finds that a grandparent cannot recover for witnessing the death of a grandchild, given the closeness of grandchildren to their grandparents. 43 CONCLUSION Based upon the foregoing, it is respectfully submitted that the order of the Appellate Division should be reversed and this matter should be remanded to the Second Department for a consideration of issues raised but not decided in its decision, and that this Court should issue any other relief it deems just and proper. Respectfully submitted, THE ROTHENBERG LAW FIRM LLP Attorneys for Plaintiffs-Appellants By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DECICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Marc J. Rothenberg, Esq. Brian J. Isaac, Esq. Of Counsel