Jun Chi Guan v. Tuscan Dairy Farms

In a consolidated action, inter alia, to recover damages for personal injuries and wrongful death, etc., the defendants Tuscan Dairy Farms, doing business as Dellwood Dairies, and William Piro appeal from so much of an order of the Supreme Court, Kings County (Douglas, J.), dated September 16, 2004, as denied that branch of their motion which was for summary judgment dismissing the third cause of action in the complaint interposed in the action originally commenced under index No. 25874/98 insofar as asserted against them. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the third cause of action in the complaint interposed in the action originally commenced under index No. 25874/98 is granted, that cause of action is dismissed insofar as asserted against the appellants, and that cause of action is severed insofar as asserted against the remaining defendants. This consolidated action, inter alia, to recover damages for personal injuries and wrongful death arises.from an accident wherein a delivery truck owned by the defendant Tuscan Dairy Farms, doing business as Dellwood Dairies, and driven by the defendant William Piro (hereinafter referred to collectively as the appellants), allegedly struck the plaintiff Shao Zhen Kwan (hereinafter the plaintiff) as she was pushing a stroller conveying her two-year-old grandson, the decedent Jackie Guan (hereinafter the infant). The impact allegedly caused the plaintiff to sustain serious physical injuries and caused the infant’s death. The Supreme Court denied that branch of the appellants’ motion which was for summary judgment dismissing the third [726] cause of action in the complaint interposed in the action originally commenced under index No. 25874/98 insofar as asserted against them, which sought to recover damages for injuries the plaintiff allegedly sustained from observing the accident in which the infant was killed. We reverse. It is now settled that “where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family—assuming, of course, that it is established that the defendant’s conduct was a substantial factor bringing about such injury or death” (Bovsun v Sanperi, 61 NY2d 219, 230-231 [1984]). Here, the plaintiff argues that, given the culture of the Chinese family, which resulted in her being the person who was with the infant during most of his waking hours, the infant was within the infant’s “immediate family.” However, we are not writing on a clean slate. The Court of Appeals has exercised its prerogative to balance the competing interests and announce the public policy of this state to limit liability to the class of persons identified as “immediate family” in Bovsun (supra at 230-231). This class of persons does not include a plaintiff’s grandson, and it is not appropriate for this Court to expand the class absent further direction from the Court of Appeals or the New York State Legislature. In Bovsun v Sanperi (supra), the Court of Appeals announced the availability of bystander recovery in this state in two cases brought by the spouses, parents, and/or children of the injured or deceased person. In a footnote, the Court stated: “Inasmuch as all plaintiffs in these cases were married or related in the first degree of consanguinity to the injured or deceased person, we need not now decide where lie the outer limits of ‘the immediate family.’ ” (Id. at 234 n 13.) In Trombetta v Conkling (82 NY2d 549 [1993]), the Court of Appeals was asked to find that an aunt was within the “immediate family” of the plaintiff niece. The plaintiff in Trombetta was seeking to recover damages for emotional injuries she allegedly suffered witnessing her aunt being run over and killed by a tractor-trailer. The plaintiff argued that her aunt should be considered her “immediate family” given their familial relationship and the close emotional bond she had shared with her aunt, who had become her maternal figure after her mother died. In rejecting this argument, the Court of Appeals noted that Bovsun “opened a narrow avenue” to a “very circumscribed right of recovery” (Trombetta, 82 NY2d 549, 552 [1993]). The Court [727] held: “On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond.” (Id. at 553.) The Court continued: “It remains part of this Court’s important common-law tradition and responsibility to define the orbits of duty. Sound policy and strong precedents justify our confinement and circumscription of the zone of danger rule to only the immediate family as surveyed in Bovsun” (id. at 553). Finally, the Court noted: “As a policy matter, we continue to balance the competing interests at stake by limiting the availability of recovery for the negligent infliction of emotional distress to a strictly and objectively defined class of bystanders. In addition to the prevention of an unmanageable proliferation of such claims—with their own proof problems and potentiality for inappropriate claims—the restriction of this cause of action to a discrete [and] readily determinable class also takes cognizance of the complex responsibility that would be imposed on the courts in this area to assess an enormous range and array of emotional ties of, at times, an attenuated or easily embroidered nature.” (Id. at 554-555.) The case at bar is analogous to Trombetta, and the expansion of the class sought must be denied on the same rationale. Here, as in Trombetta, the plaintiff is arguing that a blood relationship, coupled with a significant emotional attachment and intimate, immediate familial bond, gave rise to an “immediate family” relation in the form of a de facto maternal figure (albeit here the status of the plaintiff is that of the de facto maternal figure, whereas in Trombetta it was the contrary). This argument was rejected in Trombetta and must be rejected here. Indeed, the argument is even less compelling in the case at bar. Here, unlike in Trombetta, the infant’s mother was not deceased at the time of the accident. In sum, the class of persons in a plaintiff’s “immediate family” does not include his or her grandchild. Ritter, Goldstein and Lifson, JJ., concur.