holding that the plaintiff was in the zone of danger because the "evidence demonstrated that plaintiff feared for her safety" and "was exposed to unreasonable risk of injury"Summary of this case from RIVERA v. LETO
May 24, 1994
Appeal from the Supreme Court, New York County (Martin Stecher, J.).
The jury reasonably determined that plaintiff should recover for her emotional injuries as a result of being within the "zone of danger" when she witnessed her daughter's fatal accident (see, Bovsun v. Sanperi, 61 N.Y.2d 219). Pursuant to the rule explicated in Bovsun, a defendant is subject to liability for a plaintiff's immediate emotional distress from viewing bodily harm to an immediate family member where the defendant's negligent conduct also threatens bodily harm to the plaintiff. This rule applies even when the plaintiff's shock or fright is not due to any fear for her own safety but to fear for the safety of spouse or child (supra, at 230, n 8). Here, in any event, the evidence demonstrated that plaintiff feared for her safety as well as her daughter's life. In addition, plaintiff was exposed to unreasonable risk of injury as she knelt down and reached under the moving bus to help her daughter who had just been run over by the rear wheel of the bus, due to the bus's defective interlock-brake system.
The trial court's charge to the jury regarding the "zone of danger" doctrine was proper. The fact that the court also inferentially mentioned the doctrine that "danger invites rescue" did not affect the propriety of the "zone of danger" concept, nor did it create, as defendant maintains, a "new cause of action for tort recovery." Notably, the two doctrines are not mutually inconsistent and can be contemporaneously applicable in situations, such as this one, where an immediate relative attempts to rescue a loved one and is thereby placed in the "zone of danger" (see, e.g., DiMarco v. Supermarkets Gen. Corp., 137 A.D.2d 651, 652).
Concur — Sullivan, J.P., Ellerin, Ross, Asch and Tom, JJ.