New York and the Zone of Danger Rule

Photo of yellow and black arrows indicating hazard.

Can you sue for psychiatric injuries from witnessing an accident? In New York, one can sue for mental pain and suffering and psychological injuries, as a result of witnessing the injury of an immediate family member caused by the negligence of another. To recover for injuries as a result of witnessing an accident, one must both be in the “Zone of Danger” and an “Immediate Family Member”.

The “Zone of Danger” rule allows one who is threatened with bodily harm in consequence of the defendant’s negligence, to recover for emotional distress flowing merely from the viewing of the death or the serious physical injury of that person’s immediate family. Bovsun v. Sanperi (1984).

How close one must be to the person who was injured (i.e. how big is the physical “zone” which puts one in danger), and exactly who is considered a member of one’s immediate family, are questions not fully settled.

In the case of Greene v. Esplanade Venture Partnership (2021), New York’s highest Court was asked to decide whether a grandparent is an immediate member of a grandchild’s family.

In the Greene case, two-year-old Greta Greene was with her grandmother, Susan for an overnight visit. They were in front of a building when they were suddenly struck by debris that fell from the façade of it. Despite emergency efforts, Greta died the next day.

Greta’s mother commenced a lawsuit for the injuries and wrongful death of Greta. Grandmother Susan asked the court’s permission to bring a case under the zone of danger doctrine, seeking recovery for her own emotional distress from witnessing the death of her granddaughter. There was no question as to whether Susan was in the zone of danger of being struck by the falling debris. However, there was a question as to whether the court would consider granddaughter Greta and grandmother Susan immediate family members.

Previously, New York’s Court of Appeal had held that an aunt and niece would not be considered immediate family member under the zone of danger doctrine. In the case of Trombetta v. Conkling (1993) the aunt and niece, had a close emotional bond. In fact, the aunt had cared for the niece and acted as her mother since the niece’s mother died when the niece was 11 years old. However, their familial relationship was not close enough in the court’s opinion to allow the niece to recover for emotional injuries as a result of witnessing her aunt’s death; the two were crossing the street when the aunt was run over by a truck.

The court in the Greene case concluded, however, that a grandchild and grandparent are immediate family members for the purpose of the zone of danger rule. The court held that such was consistent with increasing legal recognition of the special status of grandparents in society.

In deciding that grandparents and grandchildren are immediate family members under the zone of danger doctrine, the court recognized that “concepts of the creation and composition of family units have evolved beyond traditional legal notions of blood relation and consanguinity. 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.”

The court claimed that they had “not established the outer boundary for the immediate family element of the zone of danger rule.”However, the court did make clear that recovery for emotional distress by bystanders, may be had by only a “strictly defined class” of immediate family members which have been held to include spouses, grandparents, parents, children, and grandchildren. The familial relationship is the key, not the emotional bond between the family members. Further, the Court did not overrule its prior holding that aunts and nieces (and by comparison uncles and nephews) are not immediate family members for the purpose of this rule.

Judge Fahey wrote the majority decision in the Greene Case from which there was no dissents. In a concurring opinion, Judge Rivera would have had the Court go further, and do away with the immediate family member requirement altogether. In Judge Rivera’s opinion, a person should be allowed to recover “if they contemporaneously observed the serious injury or death of another, regardless of their relationship, if they were at risk of immediate and serious physical harm from the defendant’s conduct.”Judge Rivera’s more permissive proposed rule is in accordance with the majority of other states on this issue, including neighbor New Jersey, which takes a more permissive expansive position on allowing recovery by bystanders.

As Judge Rivera wrote, While the majority holding in Greene allows this plaintiff to recover, if she had stood in a slightly different relationship or was a stranger to the deceased child, the defendants would not have to compensate her for a part of the harm caused by their inexcusable negligence.


The law firm of Zalman, Schnurman, & Miner is experienced in handling zone of danger claims. All consultations are free and each case is handled on a contingency fee basis. For a free consultation call 1-800-LAWLINE (1-800-529-5463) or email info@1800lawline.com.

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