A grandmother who saw her 2-year-old granddaughter gravely injured by falling debris from a crumbling Manhattan building façade in 2015 has the same legal rights as a parent when it comes to witnessing a horrific death or injury, the New York Court of Appeals ruled this month in a unanimous decision.
The court did not change the legal definition of “immediate family,” instead using the “recognition of reshaped societal norms and everyday common sense” in ruling for Susan Frierson, the grandmother who has filed a lawsuit against the building owner and the engineering company that had inspected the façade, as required in New York City.
“We have not established an outer boundary for ‘the immediate family’ element of the zone of danger rule,” Judge Eugene Fahey wrote in the majority opinion. “Here, we simply conclude that a grandchild is within our understanding of what is meant by ‘immediate family.’”
Frierson, who was also injured, said she additionally suffered “severe shock” and mental anguish after seeing her granddaughter, Greta Devere Greene, struck by the debris. Greta died the next day.
According to news reports, the family first sued for negligence and wrongful death but eventually expanded the claims to include infliction of emotional distress. The building owner and engineering company argued the grandmother could not recover damages because she is not an immediate family member.
Greta’s family challenged that, talking about the girl’s overnight stays at her grandmother’s apartment, saying Frierson and Greta’s had built a powerful bond, and that entitled Frierson to seek emotional distress damages otherwise reserved for a child’s legal guardians.
Judge Fahey said today’s families have more complex relationships than in the past. “What once was accepted as a basic social premise must be carefully examined in a way that reflects the realities of both our changing legal landscape and our lives,” Fahey wrote.
A excerpt from the Court of Appeals decision:
We have applied the settled “zone of danger” rule to “allow one who is … threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress” flowing only from the “viewing [of] the death or serious physical injury of a member of [that person’s] immediate family.” (Bovsun v Sanperi, 61 NY2d 219, 228 
Unsettled at this juncture, however, are “the outer limits” of the phrase “immediate family” (id. at 233 n 13). Once again, we are not asked to fix permanent boundaries of the “immediate family.” Instead, our task simply is to determine whether a grandchild may come within the limits of her grandparent’s “immediate family,” as that phrase is used in zone of danger jurisprudence.
We conclude that the grandchild comes within those limits. Consistent with our historically circumspect approach expanding liability for emotional damages within our zone of danger jurisprudence, our increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense, we conclude that plaintiff’s grandchild is “immediate family” for the purpose of applying the zone of danger rule.
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