I had hired a rideshare to take me home after I went out with friends. This driver was cutting in and out of traffic at an excessive rate of speed all the way home. To make things even worse, his car started smoking. He left me about a half mile from my house when he pulled over and told me to get out. I didn’t want to see if his car was going to catch on fire. I didn’t sustain any physical injuries, but I was car sick and shaken after the ride. Do I have a case for emotional distress?
The short answer is no. Although some jurisdictions recognize a claim for “negligent infliction of emotional injury,” New York is not one of them. There may be a case someday when the New York Court of Appeals will recognize this type of claim, but New York requires the victim be in the “zone of danger” and to have actually witnessed physical harm to a family member. Since there were no physical injuries, you, as the victim, meet neither the “zone of danger” test nor the witness to physical harm of a family member.
There are some exceptions for emotional distress claims other than “zone of danger” claims. Johnson v State of New York, 37 NY2d 378, 372 NYS2d 638 (1975). But your case does not fit into any exception.
Intentional Tort
The best a clever lawyer could do under these circumstances would be to bring a claim alleging the driver intentionally wanted to cause you emotional distress by driving so erratically in a poorly maintained vehicle. However, such a clever lawyer who would think of this, would also be clever enough to tell you that intentional acts are not covered by car insurance policies. Thus, most attorneys would only take this case if the victim paid all the legal fees and expenses up front. Those fees and costs would be difficult to recoup against an individual and would probably result without any compensation to the victim!
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.