Stepfather Not “Immediate Family” for “Zone-of-Danger” Claim

            A recent Appellate Division, Second Department decision highlights the law for bringing an emotional distress claim caused by witnessing a family member's serious injury or death as a result of another person's negligent act.  In Thompson v. Dhaiti, et al (2^nd Dept 2013) (Index No. 24951/09), the plaintiff, the decedent’s stepdaughter, was standing in front of a barbershop when cars driven by defendants Dhaiti and Pacific collided.  One of the vehicles jumped onto the sidewalk, struck the decedent, who had been walking on the sidewalk, and crashed through the front window of the barbershop, pushing the decedent through the window and pinning him against a chair in the shop.  The decedent later died of his injuries.  The plaintiff then brought a lawsuit against the defendants, seeking damages for emotional distress caused by having witnessed the decedent’s death while being in the “zone-of-danger.”

            The Appellate Division ultimately held that the plaintiff was not entitled to recover damages under this claim, and as a result her lawsuit was dismissed (by way of defendants’ motion for summary judgment) as the decedent was not the plaintiff’s “immediate family.”  The Court notes that although the decedent was plaintiff’s stepfather, and the plaintiff lived with him since she was four years old and he had financially supported her for the majority of her life and acted as her father, he was not her biological father and therefore not considered to be her "immediate family" member (citing Bovsun v. Sanperi, 61 NY2d 219 and Trombetta v. Conkling, 82 NY2d 549).  The Court stated the following: “There is no blood relationship, even if the plaintiff and the decedent had the same quality of relationship that a parent has with his or her biological child.  In light of the strong public policy limiting liability under the zone-of-danger rule and favoring an objectively defined class of individuals who fall within ‘immediate family’ for purposes such as liability, we concluded that stepchildren are not immediate family members.  Thus, the Supreme Court properly granted the motion of the moving defendants for summary judgment dismissing the complaint insofar as asserted by [plaintiff] against each of them.” 

Salvatore R. Marino, Esq.