Is New York ready to include pets as part of the “immediate family” class for purposes of zone of danger liability?
A Brooklyn Supreme Court justice has set the stage for a battle between the plaintiff’s negligence bar and the negligence defense bar with a July 15 decision on a motion to dismiss in Deblase v. Hill, 2024 NY Slip Op 50901(U).
The issue is whether it is time for New York to expand the zone of danger doctrine to include a situation where a person is nearly injured by a vehicle driver while witnessing the family dog being killed.
Brooklyn Supreme Court Justice Aaron Maslow determined that prior to deciding the motion it was necessary to have groups not involved in the litigation weigh in, by invitation:
“[T]his Court believes it appropriate to enumerate the bar and other associations to whom notification concerning amicus curiae briefs was sent:
- Albany County Bar Association
- American Association of Insurance Services
- American Property Casualty Insurance Association
- Asian American Bar Association
- American Society for the Prevention of Cruelty to Animals
- Better Together Animal Alliance
- Bronx Bar Association
- Brooklyn Bar Association
- Casualty Actuarial Society
- Dominican Bar Association
- Human Animal Bond Association
- Insurance Brokers’ Association of the State of New York
- Insurance Federation of New York, Inc.
- Latino Lawyers Association of Queens County
- LANA Law Group
- LGBT Law Association of Greater New York
- Nassau County Bar Association
- National Association of Social Workers
- New York City Bar Association
- New York County Lawyers Association
- New York State Bar Association
- New York State Insurance Association
- New York State Trial Lawyers Association
- Paws NY
- Pet Advocacy Network
- Queens County Bar Association
- Richmond County Bar Association
- Rockland County Bar Association
- Suffolk County Bar Association
- Women’s Bar Association of the State of New York”
Compressed Facts
Nan Deblase was walking the family dog in Brooklyn when, tragically, while crossing the street the dog was struck by a car. It was July. The dog’s actual owner was Nan’s son, Trevor. They both sued the driver, and the case is being litigated in Brooklyn Supreme Court.
Although Nan was not physically injured, she claims that she was present in the zone of danger, observed the striking of the dog and was herself in danger of being struck; therefore, she is now entitled to damages.
Path of Emotional Injury Law in New York
On a spring day in Rochester in 1891, a pregnant woman who was waiting to board a horse-drawn trolleys when another came charging wildly down the street at her. The rearing horses were stopped inches from the petrified woman. When the horses stopped, she was between the heads of the two lead horses. The woman fainted, was hospitalized and suffered a miscarriage. Those are the facts of Mitchell v. Rochester Ry., 151 N.Y. 107 (1896).
The Court of Appeals held there that, since she had not been touched but only frightened by the negligent operation of the trolley, she had no cause of action. Put simply, recovery prohibited for emotional disturbance without physical injury.
Then Mitchell was overruled in Battalla v. State of New York (10 NY2d 237, 242 (1961). The court, explaining that that “a rigorous application of” the rule articulated in Mitchell “would be unjust, as well as opposed to experience and logic,” first recognized a claim for damages based on mental distress without physical injury.
In Battalla, an infant that was placed in a chairlift by an employee of a ski resort and not properly secured. The infant “became frightened and hysterical” while riding on the chairlift and suffered severe emotional disturbance with residual physical manifestations as a result. In finding that the plaintiff had stated a legally cognizable claim, the court noted the well-understood principle, “fundamental to our common-law system[,] that one may seek redress for every substantial wrong.”
Current Law
But it was not until 1984 that New York jurisprudence permitted recovery of “damages for injuries suffered in consequence of the observation of the serious injury or death” of another in certain circumstances.
The controlling law in the Deblase case was pronounced by the Court of Appeals in Bovsun v. Sanperi, 61 N.Y.2d 219, 228 (1984), which settled the “zone of danger” rule to include someone threatened with bodily harm because of the defendant’s negligence to recover for emotional distress flowing from watching the death or serious physical injury of a member of that person’s immediate family.
Then, pulling back, the Court of Appeals, in Trombetta v. Conkling, 82 N.Y.2d 549 (1993), held that an aunt who witnessed a young niece struck by a truck was not entitled to recover under the Bovsun even though the niece was raised and resided with her. According to the court, the aunt was not the child’s immediate family.
Finally, again tackling the scope of what is meant by “immediate family,” the Court of Appeals decided Greene v, Esplanade Venture, 36 N.Y3d 513 (2021), which sets the parameters of the zone of danger doctrine in the law concerning infliction of emotional distress to include a grandparent who witnesses a grandchild being killed.
To date, Bovsun, Trombetta and Greene sets the outer limits of the zone of danger to extend no further than human observing human; therefore, what we are looking at in this case with a nonhuman component, is a new tort.
Condensed Arguments in Deblase
In response to defendant’s legal arguments concerning New York law governing infliction of emotional distress, which presently bars recovery for psychological injuries sustained in connection with the death of animals, the plaintiffs “advocate that a change in the law is necessary as this principle is antiquated and not in line with both common societal views and trends in the law.”
Question of Efficiency
No matter the outcome on the Deblase motion to dismiss, because of the novelty and significance of the issue, the matter will be moving up through the appellate pipeline, at lease to the Appellate Division.
So why the clarion call for amici involvement at the motion court level?
The parties acknowledge the controlling law. The lower court, under the law of judicial precedent, must apply that controlling law. The thought of briefs submitted by the invitees, the possibility reply briefs and additional briefing by the parties seems daunting and will only have to be repeated on appeal.
Final Thoughts on the New Tort
Throughout the development of tort law in New York, the core concern has been to make the injured person whole, as best as possible, and to disincentivize harmful behavior in society. The zone of danger doctrine in New York, until now, only involved psychic injury suffered by one human who observes severe or fatal injury to another human who is part of a defined class: immediate family (so far, parents, grandparents).
Is New York ready to include pets as part of the “immediate family” class for purposes of zone of danger liability? Or, is New York ready to create a new tort for causing owner-observed pain, suffering or death to their chattel?
These are questions that practitioners know can only be answered by the Legislature or the Court of Appeals, keeping in mind that “reexamination of the common law of torts is properly approached with ‘circumspect[ion]’”. Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513, 520 (2021).
