Awarding Grandma Damages, Top NY Court Cites Ever-Evolving Modern Families

New York’s high court brought grandparents under the immediate-family umbrella for emotional distress damages, urging what it called “common sense.”

Greta Devere Green was 2 when she was struck and killed by falling debris from a building in Manhattan. (Image courtesy of Gair Gair Conason via Courthouse News)

ALBANY, N.Y. (CN) — A grandparent has the same rights as a parent when it comes to witnessing horrific injury or death, New York’s high court ruled on Thursday.

In the unanimous decision, the Court of Appeals carefully avoided any change to legal definitions, instead using the “recognition of reshaped societal norms and everyday common sense” in ruling for Susan Frierson, who horrifically saw her 2-year-old granddaughter crushed by falling debris while walking on a Manhattan sidewalk in 2015.

“We have not established an outer boundary for ‘the immediate family’ element of the zone of danger rule,” Judge Eugene Fahey wrote in the majority opinion. “Here, we simply conclude that a grandchild is within our understanding of what is meant by ‘immediate family.’”

In addition to suffering her own injuries in the 2015 accident, Frierson, who was 60 years old at the time, claimed she sustained “severe shock” and mental anguish after seeing firsthand what happened to her granddaughter. The child, Greta Devere Green, died from her injuries one day later. 

Initially the family sued for negligence and wrongful death, but they later added infliction of emotional distress to the claims. As the building owner and engineering company argued, however, the grandmother could not recover those damages because she was not an immediate family member.

The family shot back with accounts of the infant’s various overnight stays at her grandmother’s apartment, saying Frierson and Greta’s “powerful” bond entitled her to emotional distress damages otherwise reserved for a child’s legal guardians.

Thursday’s ruling in their favor follows oral arguments last month in which most of the judges seemed inclined to expand the definition of what constitutes “immediate family.”

That proved to be true, as the high court unanimously ruled for Frierson, though it ultimately sidestepped redefining the outer limits of who counts as immediate family under the law. 

As he did during oral arguments, Fahey noted that unmarried, same-sex partners could fall under the definition, and that modern families had more complex relationships than the law allowed. 

“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,” Fahey wrote, adding in a footnote that New York was on the fringe among states when it came to permitting grandparents to recover bystander damages.

The 15-page ruling delves into the centuries-old history of tragic lawsuits, with Fahey pointing to one case in the late 1800s where the high court blocked recovery for “injuries sustained by fright.” In the years to come, applicable laws changed dramatically. By the late 1960s, one could recover for “negligently induced mental trauma without physical impact.”

Fahey also added that a crucial 1984 ruling, Bovson v. Sanperi, did not elucidate who counted as “immediate family” for the purposes of recovering damages as a bystander, leaving the court in a gray area on which family members were within the outer limits of the phrase.

While the court was unified in favor of the family, several judges suggested going further in concurring opinions.

Judge Jenny Rivera suggested, for example, eliminating the immediate-family requirement altogether in such cases. Saying the majority opinion “repeats the errors of the past,” Rivera argued that state courts “are well-equipped to apply a functional mode of analysis in order to identify strong and caring bonds.”

Rivera also noted how the nuclear family has changed in recent decades, with the percentage of children living with unmarried, cohabitating parents more than doubling since 1997. Marriage is no longer, and should not be, the basis to preclude or grant damages, she said.

“Marriage and blood relationships have served for too long as the primary measure for a strong human bond based on affection and connectedness,” the 31-page concurring opinion states. “The real problem is that this limitation is underinclusive because it assumes that only spouses and certain relatives have the type of emotional attachment to the third-party victim that justifies recovery.”

Rivera cited several hypothetical cases, including one in which a parent a block away could not recover because they were not in the zone of danger even if they are an immediate family member. “Where is the fairness in this outcome?” she asked.

Judge Michael Garcia, one of the more conservative members of the New York Court of Appeals, agreed with his colleagues, despite raising concerns about expanding the pool of potential plaintiffs in future cases. 

Some experts say the ruling could pave the way for greater damages in wrongful-death cases.

“The Court of Appeals is recognizing the change in American society and recognizing the changing definition of immediate family,” Andrea Alonso, an attorney at Morris Duffy Alonso & Faley, said in an interview. She noted an estimated 2.4 million grandparents raise their grandchildren today.

While the ruling won’t likely affect too many lawsuits, as zone-of-danger suits are not terribly common, they could open the floodgates to more damages, Alonso said. She pointed to a pending bill in the New York state Legislature that would expand wrongful-death damages to include sorrow and loss of services. “This could lead to an underwriting revolution for insurance companies,” she said.

Ben Rubinowitz, an attorney with Gair Gair Conason for the family, did not immediately return an email seeking comment. Neither did attorneys Jonathan Shaub of Citrin & Spratt, who represents building owner Esplanade Venture Partnership, nor Katherine Herr Solomon of Mauro Lilling Naparty, who represents Blue Prints Engineering.

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