Zone of Danger

Last year this website wrote a blog that touched on the issue of negligent infliction of emotional distress. The Court of Appeals recently wrote an opinion clarifying an issue surronding these claims: Green v Esplanade Venture Partnership, 2021 NY Slip Op 01092.

This sad story occurred May 17, 2015 when two year old Devere Green was a pedestrian killed by debris that fell from the front of a building owned by defendant. Devere Greene was in the company of her grandmother, Susan Frierson, at the time of this accident. Frierson wanted to make her own claim for damages against the defendant for emotional distress. The Court had previously held that Frierson could make such a claim if she was in the “zone of danger” and she was in the “immediate family” of the injured party.

There was no issue that Frierson was in the “zone of danger” since she was right next to her grandaughter when the debris struck. But prior cases limited recovery to a parent as part of the “immediate family.” This Court in Greene, found that a grandparent could be part of the injured party’s “immediate family.” However, the Court also mentioned there was an “emotional bond” between Frierson and Greene. Frierson was activerly involved in the child’s life with frequent visits and sleepovers at Frierson’s home.

So now this opens additional questions regarding negligent infliction of emotional distress (or “zone of danger”) cases. If an injured party is accompanied by an aunt, or a cousin, or close friend at the time of an accident, could that uninjured person that witnessed the accident make a claim for emotional distress if they have an “emotional bond” with the injured party?

Excess Insurance

“My son was seriously injured in a bicycle accident, but I was disappointed with the recovery he received because my lawyer told me there was a problem with insurance coverage. What can I do to help my son?”

All cars are required by law to carry minimun liability coverage for all accidents. Excess insurance is a term used to describe additional insurance coverage for motor vehicle accidents. If the owner/operator of a car purchased an “umbrella” policy, then the “umbrella” policy would afford additional coverage for a motor vehicle accident. If the owner of a vehicle is different than the operator, then the operator may have his or her own insurance coverage in addition to the policy covering the vehicle. If a tractor/trailor was involved in the accident, then sometimes trailors have their own policies different than the tractor which could provide additional coverage for your accident.

If your son’s case is settled, then there is nothing anybody can do.

But if your son’s case is not settled, your attorney must look for all of the available insurance covering an accident to maximize your son’s recovery. Many defendants simply do not have assets worth attaching to collect a judgment. If your son did obtain a large monetary judgment against the driver that struck him, bankruptcy laws will allow the defendant to discharge that debt through bankruptcy. Your son may be in better position if he had settled his case for the available insurance coverage. But your attorney must look for all available insurance coverage.

A Tale of Crossing Guards

“My child was struck by a car while walking home from school.  Shouldn’t the City also be responsible for the accident as well as the driver of the car that struck my child for failing to provide crossing guards so children can get home safely on busy New York Streets?”

As with most questions presented, the answer really lies with the details of the accident if the City is negligent for failing to provide crossing guards. The lead case with crossing guard accidents is probably Florence v Goldberg, 44 NY2d 189 (1978).  This was a 1978 case in which a jury found the City responsible for failing to replace a civilian crossing guard assigned to a busy Brooklyn intersection who called in sick.  The 6 year old plaintiff was struck walking home.  The key fact in the case was the intersection was protected by a crossing guard for the first two weeks of school.  The plaintiff’s mother accompanied the plaintiff for the first two weeks of school.  She then accepted a job after two weeks and relied on the crossing guard to help her child get home safely.

The Court found that the crossing guard created a special duty of the police to insure the child would get home safely.  But the Court repeated the rule that there is no general duty to insure citizens are never the victims of accidents or crimes. Municipalities have limited resources so they are not responsible for every act violating its citizens.  A mugging victim cannot claim the City should have had more of a police presence to prevent a crime from occurring.  Similary, if an adult was struck in that busy Brooklyn intersection, there would be no claim because there was no special relationship between the vicitim and the police force.  Similarly, if the young victim in the Florence case was injured by a bandit who beat the child up or by a friend who pushed him down, there would be no claim.  The civilian crossing guard was only there to insure safety against cars in the intersection, not against all tragedies that can occurr on a City street.

The question, as it is written, never states if the intersection in question was normally covered by crossing guards or not. If the intersection in question never had a crossing guard to begin with, then the City would not be responsible because no special duty existed bewteen the City and your child.

Notice to Insurance Carrier

“I received a letter from an attorney notifying me that someone fell outside my home when I wasn’t there. The letter is asking me to turn it over to my homeowner’s insurance carrier.  But why should I do that if I don’t even know if the accident really took place? Won’t my homeowner’s insurance rate go up?”

Yes, you should turn the letter over to your homeowner’s insurance carrier. The whole point of having homeowner’s insurance is to cover you for losses that arise on your property, even if you are not there. The insurance carrier has an entire claims department, eager to investigate the claim against you. The carrier also have attorneys that they are paying that will defend if the case against you goes to court. And, if you have a damages judgment entered against you, the carrier will indmenify you for your loss.

You should not worry about your insurance rate, you should worry about giving your insurance carrier timely notice of the claim against you. If you do not turn the letter over to your insurance carrier, you may lose the right to have the carrier investigate and defend the claim against you. All policies insist that the carrier receive timely notice of any potential claims against you covered by the policy. If you fail to turn over that letter from the attorney to your insurance company, and then, you receive a summons a year later, you could be facing a disclaimer.  A disclaimer means, you pay for your own lawyer and investigator and you pay any judgments against you.

The risk is not worth it.  It is much easier to fight a rate hike assesed against you for a bogus claim, than it is to fight the insurane carrier to defend you in a lawsuit because you failed to give it timely notice.

Rideshare from Hell

“I had hired a rideshare to take me home after I went out with friends. This crazy 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 and he left me about a half mile from my house when he pulled over and told me to get out. I left on foot as quickly as I could because 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?”

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 familty member.

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!