Tort Law

Grandparents can recover emotional distress damages under 'zone of danger' rule, top state court rules

  • Print.

family law words and gavel

Image from

A grandparent who saw her 2-year-old granddaughter get hit by falling debris, causing her death, can recover emotional distress damages as a bystander under the “zone of danger” rule, New York’s top court has ruled.

The New York Court of Appeals ruled for Susan Frierson, who was close by her granddaughter at the time of the May 2015 incident. The Feb. 18 opinion is here.

The court ruled that Frierson was entitled to seek damages under a tort rule that allows a person, when in a zone of danger for injury, to receive damages for the emotional distress of seeing the death or serious injury of an immediate family member.

The court said the grandmother’s grandchild is “immediate family” under the zone of danger rule. The decision is consistent with “our increasing legal recognition of the special status of grandparents, shifting societal norms and common sense,” the court said in an opinion by Judge Eugene Fahey.

The court noted that grandparents in New York are now entitled to seek visitation with their grandchildren and even custody in some circumstances. Given legislative recognition of the special status of grandparents, it is “more than warranted” to include grandparents as immediate family under the tort rule, the court said.

A concurring judge, Judge Jenny Rivera, said the court should have gone further.

In a 1968 opinion, California allowed emotional distress damages for witnessing the injury or death of a relative, even when the plaintiff is not in the zone of danger. New York didn’t follow California’s lead, although many other jurisdictions did, Rivera said.

“Our rule should be that a person may recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond,” Rivera said. “Alternatively, a person may 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.”

Hat tip to Courthouse News Service and, which covered the opinion.

Give us feedback, share a story tip or update, or report an error.