Grandma Seeking Emotional-Distress Damages May Break Ground in NY Law

New York’s highest court could soon expand the definition of “immediate family” beyond parents in emotional-distress cases after hearing the tragic case of a woman who watched her granddaughter crushed to death by falling masonry. 

Screenshot of oral arguments Wednesday at the New York Court of Appeals. (Image via Courthouse News)

ALBANY, N.Y. (CN) — New York State’s high court, almost to a judge, seemed inclined to expand the definition of “immediate family” Wednesday after hearing the tragic case of a 2-year-old girl who was crushed to death by falling debris in front of her grandmother.

In May 2015, falling stucco and concrete fell from a commercial building at 305 West End Avenue in Manhattan. The debris struck and killed Greta Devere Greene and injured her 60-year-old grandmother, Susan Frierson, while they were walking on the sidewalk.

The girl’s mother sued the building owner, contractor and engineer for negligence and wrongful death, seeking damages for emotional distress as well as for the knee and ankle injuries sustained by Frierson. Frierson claimed she sustained “severe shock” and “severe mental anguish” in witnessing the accident that killed her granddaughter.

In fighting liability, however, the defendants in the case argued that Frierson could not make the case for emotional distress as she was not an “immediate family member.”

Though a trial court ruled that Frierson provided enough information about her relationship with Greta to persuade a jury she was an immediate family member, a midlevel appeals court reversed in a split decision.

In doing so, the majority relied on the 1993 case Trombetta v. Conkling, where emotional-distress damages were denied to a woman who witnessed the death of her aunt. State courts in other states have expanded the definition of “immediate family” to include other members besides the parents of a child, but New York has so far failed to do so.

During oral arguments on Wednesday before the New York Court of Appeals, attorney Ben Rubinowitz argued that his client had a strong bond with her granddaughter, and that times have changed since 1993. 

“You would go through metaphysical gymnastics trying to separate what she is feeling, the emotional trauma in witnessing the granddaughter’s death, and separating that from her own emotional damages,” Rubinowitz told the court. “Certainly, a grandmother should be someone who is in the immediate family.”

Rubinowitz noted there are fewer and fewer stay-at-home mothers these days, and in many cases grandparents play an increased role as caretakers. Grandparents are considered immediate family members in several other areas, including domestic-relations laws, penal law and rent-stabilization codes, he added.

Using television as a barometer, Judge Eugene Fahey seemed to agree. “My experience with family in my lifetime is that it’s changed a great deal,” the 69-year-old judge said. “When I was a young man, it was June Cleaver. Now it’s ‘Modern Family.’”

Fahey asked for some guidance for future cases, which Rubinowitz said could be tackled using a qualitative approach instead of looking at the family member’s title.

“I think the way to do it is to get away from the title,” Rubinowitz answered. “Instead of saying the title, let’s look at the quality of that relationship and the integrity of that relationship.”

Judge Michael Garcia worried about the potential of a larger scope of plaintiffs in future cases if the definition of “immediate family” were expanded, and he expressed concerns that a potential wave of lawsuits could result from a change. “We’re looking to make a rule here, so we have to consider the landscape well beyond the facts,” Garcia said.

The slippery slope argument was also made by Jonathan Schaub, an attorney for the building owner who noted that parents enjoy a unique relationship with their children that is not matched by grandparents. 

“I do not disagree that grandparents play an important role in modern society. In fact my parents are watching my children right now,” Schaub said. “[But] if we start going down the road of looking at the statutes … it will not be very long until the next plaintiff comes along pointing to some piece of legislation or some language in the decision saying there is a special relationship.”

Most of the judges seemed unconcerned about a flood of litigation, and Fahey dismissed that argument that extended family members could drum up fake charges of emotional distress under a new standard.

“Emotional damages can be faked, that’s a 19th century notion that is really outside of our jurisprudence,” he said. 

Judge Leslie Stein also noted that New York courts have previously bestowed grandparents with special status in their relationship grandchildren.

The attorney for the engineer and contractor, Katherine Herr Solomon, also said the current legal framework should remain limited. “This ruling shouldn’t be used as a statement of the importance of a particular family member,” she argued, but that it should be about policy limits.

Solomon said, under the current rubric, that step-children, in-laws and domestic partners could not seek emotional damages in many cases. “I understand that it’s arbitrary, but that’s a product of the analysis.”

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