In a recently published opinion, Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513 (2021), the Court of Appeals addressed the issue of whether a grandparent can assert a claim for emotional distress for witnessing a grandchild’s accident. Under New York case law, a bystander who is in close proximity to a harm, or the “zone of danger,” can recover for the infliction of emotional distress caused by witnessing the death or injury of their family member—e.g. spouses, parents and children. Although unwilling to fix permanent boundaries for the classification of an “immediate family,” the Court of Appeals held that the grandparent relationship fell within those family members who may recover under the “zone of danger” rule.
In Greene, Susan Frierson and her two-year-old granddaughter were standing in front of a building when they were both struck by falling debris. Tragically, Frierson’s granddaughter subsequently died as a result of her injuries. Plaintiffs, Frierson and Stacy Greene (the Decedent’s mother), commenced an action in New York Supreme Court, asserting claims for negligence and wrongful death only. Plaintiffs subsequently moved to amend the complaint to assert a claim for negligent infliction of emotional distress (NIED). Plaintiffs argued the cause of action was appropriate given the “unique and special” relationship of a grandparent. The trial court agreed and permitted the grandmother to assert the claim. On appeal, the Appellate Division reversed the order, denying Plaintiffs’ leave to amend the complaint, on the grounds that only spouses and their children constituted an “immediate family” member under the existing case law.
In reversing the Appellate Division’s decision, the Court of Appeals relied upon their prior decision in Bovsun v. Sanperi, 61 NY2d 219 (1984), and focused on the unsettled outer limits of the term “immediate family,” as Boysun purposefully did not list or enumerate what constituted an immediate family member. In doing so, the Court “blended” decades of jurisprudence with a “recognition of reshaped societal norms and everyday common sense.” While not specifically establishing an “outer boundary” of the immediate family member under the “zone of danger” rule, the Court concluded a grandchild indeed fell within their classification of the requisite familial relationship. Integral in the Court’s decision was the 2003 amendment to the Domestic Relations Law which permitted grandparents to seek custody of their grandchildren due to the special role grandparents play in the lives of their grandchildren.
As presently constituted, the decision serves to expand the definition of “immediate family” to the grandparent-grandchild relationship only, as it relates to bystander claims under the “zone of danger” rule. However, the defense bar and insurance carriers must take note that although this expansion may be deemed limited, it is likely that the “outer limits” of a familial relationship will be tested further for inclusion of additional classes of persons following the Court’s reliance on societal norms and the evolving definition of “family.” In fact, a concurring opinion proposed completely eliminating the familial relationship as being archaic and arbitrary. As a result, in contesting the inclusion of additional classes to the “zone of danger” rule, defense efforts to limit any future challenges should focus on the Court’s unwillingness to expand the classification of a family member beyond a grandparent and its refusal to eliminate the familial relationship requirement when seeking to recover for the infliction of emotional distress claims.
 Rey O. Villanueva, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Rey can be reached at RVillanueva@grsl.com.
 David A. Visco, Esq. is an Associate in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New York State Courts. David can be reached at DVisco@grsl.com.