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April 20, 2021

Grandparent in the Zone of Danger May Bring Negligent Infliction of Emotional Distress Claim

In a recent decision, the New York Court of Appeals held that a grandparent is considered an “immediate family member” who may assert a cause of action for negligent infliction of emotional distress under New York’s “zone of danger” doctrine.

Under New York law, a cause of action for negligent infliction of emotional distress may be asserted by an “immediate family member” who was within the “zone of danger”—the area in close proximity to where the physical harm to a victim occurred. In Greene v. Esplanade Venture Partnership, the plaintiff-grandmother, who was with her two-year-old granddaughter when the child tragically lost her life after debris fell from the façade of the defendant’s building, brought a motion for leave to file an amended complaint with an additional cause of action for negligent infliction of emotional distress. Although the trial court originally granted the motion, the Appellate Division reversed, reasoning that the Court of Appeals’s 1984 decision in Bovsun v. Sanperi limited “immediate family” to spouses and their children.

On review, the Court of Appeals held that a grandparent is indeed an “immediate family member.” Noting that its decision in Bovsun did not list or enumerate “immediate family members” eligible to invoke the “zone of danger” doctrine, the court based its holding on reshaped societal norms and the “special status” attributed to the grandparent-grandchild relationship under New York family law.

Consequently, grandparents are now “immediate family members” eligible to assert a cause of action for negligent infliction of emotional distress. In light of the Court of Appeals’s reasoning, there may be room for additional classes of persons to further test the bounds of the “zone of danger doctrine” based upon the continued evolution of family structures, family law, and societal norms.

As a result, there should be an uptick in negligent infliction of emotional distress claims throughout New York. While the limits upon the scope of “immediate family” was settled law for 27 years, practitioners evaluating such claims must be mindful of the potential for the courts to expand upon the class of persons eligible to make them.

If you have any questions regarding the content of this alert, please contact David Fulvio, associate, at, or another member of the firm’s Torts & Products Liability Defense Practice Area.


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