Carmen Battalla, an Infant, by Her Guardian ad Litem, Carmen Battalla, Appellant, v. State of
New York, Respondent
Claim No. 35621
Court of Appeals of New York
10 N.Y.2d 237; 176 N.E.2d 729; 219 N.Y.S.2d 34; 1961 N.Y.
LEXIS 1092
May 25, 1961, Argued July 7, 1961, Decided
PRIOR HISTORY:
Battalla v.
State of New York , 11 A D 2d 613.
Appeal from a judgment, entered August 26, 1960 in the Court of Claims, upon an order of the
Appellate Division of the Supreme Court in the Third Judicial Department which (1) reversed an order of the Court of Claims (Alexander Del Giorno, J.; opinion 17 Misc 2d 548) denying a motion to dismiss the claim, and (2) dismissed the claim.
DISPOSITION:
Judgment reversed and order of the Court of Claims reinstated, with costs in this court and in the
Appellate Division.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL:
Leon Segan , for appellant. I. Where the necessary elements of a traditional tort action -- foreseeable duty, breach, proximate cause and injury -- coalesce in a fact pattern brought about by a party's act which results in emotional disturbance with residual physical manifestations to another, a cause of action in common-law negligence comes into existence. ( Woods v.
Lancet , 303 N. Y. 349; Drobner v.
Peters ,
232 N. Y. 220; Mitchell v.
Rochester Ry. Co ., 151 N. Y. 107; Palsgraf v.
Long Is. R. R. Co ., 248 N. Y.
339; Comstock v.
Wilson , 257 N. Y. 231; Moch Co. v.
Rensselaer Water Co ., 247 N. Y. 160; Schuster v.
City of New York , 5 N Y 2d 75; Williams v.
State of New York , 308 N. Y. 548; Steitz v.
City of Beacon ,
295 N. Y. 51; Murrain v.
Wilson Line , 270 App. Div. 372, 296 N. Y. 845; Ferrara v.
Galluchio , 5 N Y 2d
16.) II. The argument of precedent advanced by this court in Mitchell v.
Rochester Ry. Co . (151 N. Y. 107) in the year 1896 no longer has validity as a majority rule. ( Boyce v.
Greeley Sq. Hotel Co ., 228 N. Y. 106;
Sider v.
Reid Ice Cream Co ., 125 Misc. 835; Cohn v.
Ansonia Realty Co ., 162 App. Div. 791; Tracy v.
Hotel Wellington Corp ., 188 App. Div. 923; Kelly v.
Lowney & Williams , 113 Mont. 385; Lewis v.
Woodland , 101 Ohio App. 442; Resavage v.
Davies , 199 Md. 479; Pankopf v.
Hinkley , 141 Wis. 146;
Colla v.
Mandella , 1 Wis. 2d 594; Houston Elec. Co. v.
Dorsett , 145 Tex. 95; Strazza v.
McKittrick , 146
Conn. 714; Browning v.
Slenderella Systems of Seattle , 54 Wn. [2d] 440.) III. Emotional disturbance without impact can produce a mental injury which can be proven and demonstrated. Therefore, this is a matter of proof to be determined at trial, not to be determined on the pleadings. ( Sloane v.
Southern Cal.
Ry. Co ., 111 Cal. 668; Bowman v.
Williams , 164 Md. 397; Simone v.
Rhode Is. Co ., 28 R. I. 186.)
Louis J. Lefkowitz, Attorney-General ( Edwin R. Oberwager, Paxton Blair and Jean R. Coon of counsel), for respondent. Under New York Law mental disturbances proceeding from negligence without impact do not give rise to a cause of action in which damages may be recovered. ( Mitchell v.
Rochester Ry. Co ., 151 N. Y. 107; Comstock v.
Wilson , 257 N. Y. 231; Myers v.
U. S. Camera Pub. Corp .,
9 Misc 2d 765; Dixon v.
New York Trap Rock Corp ., 293 N. Y. 509; Boyce v.
Greeley Sq. Hotel Co ., 228
N. Y. 106; Sawyer v.
Dougherty , 286 App. Div. 1061, 309 N. Y. 1032; Hugo v.
Wade , 5 Misc 2d 451;
Bosley v.
Andrews , 393 Pa. 161; Colla v.
Mandella , 1 Wis. 2d 594.)
JUDGES:
2

Judges Fuld, Froessel and Foster concur with Judge Burke; Judge Van Voorhis dissents in an opinion in which Chief Judge Desmond and Judge Dye concur.
OPINIONBY:
BURKE
OPINION:
[*238] [**729] [***35] The question presented is whether the claim states a cause of action when it alleges that claimant was negligently [*239] caused to suffer "severe emotional and neurological disturbances with residual physical manifestations".
The appellant avers that in September of 1956, at Bellayre Mountain Ski Center, the infant plaintiff was placed in a chair lift by an employee of the State who failed to secure and properly lock the belt intended to protect the occupant. As a result of this alleged negligent act, the infant plaintiff became frightened and hysterical upon the descent, with consequential injuries.
The Court of Claims, on a motion to dismiss the complaint, held that a cause of action does lie. The
Appellate Division found [**730] itself constrained to follow Mitchell v.
Rochester Ry. Co . (151 N. Y.
107) and, therefore, reversed and dismissed the claim. The Mitchell case decided that there could be no recovery for injuries, physical or mental, incurred by fright negligently induced.
It is our opinion that Mitchell should be overruled. It is undisputed that a rigorous application of its rule would be unjust, as well as opposed to experience and logic. On the other hand, resort to the somewhat inconsistent exceptions would merely add further confusion to a legal [***36] situation which presently lacks that coherence which precedent should possess. "We act in the finest common-law tradition when we adopt and alter decisional law to produce common-sense justice. * * * Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule." ( Woods v.
Lancet , 303 N. Y.
349, 355.)
Before passing to a resume of the evolution of the doctrine in this State, it is well to note that it has been thoroughly repudiated by the English courts which initiated it, rejected by a majority of American jurisdictions, abandoned by many which originally adopted it, and diluted, through numerous exceptions, in the minority which retained it. Moreover, it is the opinion of scholars that the right to bring an action should be enforced. n1 n1 For excellent studies see 1936 Report of N. Y. Law Rev. Comm., pp. 379-450; McNiece,
Psychic Injury and Tort Liability in New York, 24 St. John's L. Rev. 1; see, also, Smith, Relation of Emotions to Injury and Disease; Legal Liability for Psychic Stimuli, 30 Va. L. Rev. 193 (1944);
Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033 (1936);
Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260 (1921); Wilson, The New York Rule as to Nervous Shock, 11 Cornell L. Q. 512 (1926); Edgar, Foreseeability and Recovery in Tort, 9 St.
John's L. Rev. 84 (1934); Prosser, Torts (2d ed.), pp. 38-47, 178, 192; for others, see 1936 Report of N. Y. Law Rev. Comm., p. 448; see, also, 15 Am. Jur., Damages, § 188; 25 C. J. S., Damages,
§ 70; Restatement, Torts, § 436, subds. (1), (2).
[*240] It is fundamental to our common-law system that one may seek redress for every substantial wrong. "The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left for the determination of the jury." ( Ehrgott v.
Mayor of City of N. Y ., 96 N. Y. 264, 281.) A departure from this axiom was introduced by Mitchell ( supra ), wherein recovery was denied to plaintiff, a pregnant woman, who, although not physically touched, was negligently caused to abort her child. Defendant's horses were driven in such a reckless manner that, when finally restrained, plaintiff was trapped between their heads. The court indicated essentially three reasons for dismissing the complaint. It stated first that, since plaintiff could not recover for mere fright, there could be no recovery for injuries resulting therefrom. It was assumed, in addition, that the miscarriage was not the proximate result of defendant's negligence, but rather was due to an accidental or unusual combination of circumstances. Finally, the court reasoned that a recovery would be contrary to public policy because that type of injury could be
3

feigned without detection and it would result in a flood of litigation where damages must rest on speculation.
With the possible exception of the last, it seems "[all] these objections have been demolished many times, and it is threshing old straw to deal [***37] with them." (Prosser, Torts [2d ed], § 37, pp.
176-177.) Moreover, we have stated that the conclusions of the Mitchell case ( supra ) "cannot be tested by pure logic" ( Comstock v.
Wilson , 257 N. Y. 231, 234 [1931]). Although finding impact and granting recovery, the unanimous court [**731] in Comstock rejected all but the public policy arguments of the
Mitchell decision.
We presently feel that even the public policy argument is subject to challenge. Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason [*241] for a court to eschew a measure of its jurisdiction. "The argument from mere expediency cannot commend itself to a
Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one." ( Green v.
Shoemaker & Co ., 111 Md. 69, 81.)
In any event, it seems that fraudulent accidents and injuries are just as easily feigned in the slight-impact cases n2 and other exceptions n3 wherein New York permits a recovery, as in the no-impact cases which it has heretofore shunned. n4 As noted by the Law Revision Commission: "The exceptions to the rule cannot be said to insure recovery to any substantial number of meritorious claimants and there is good ground for believing that they breed dishonest attempts to mold the facts so as to fit them within the grooves leading to recovery." (1936 Report of N. Y. Law Rev. Comm., p. 450.)
The ultimate result is that the honest claimant is penalized for his reluctance to fashion the facts within the framework of the exceptions. n2 For example, Jones v.
Brooklyn Heights R. R. Co ., 23 App. Div. 141, wherein plaintiff was hit on the head by a small incandescent light bulb which fell from a lamp attached to the roof of defendant's car in which plaintiff was a passenger. Plaintiff was allowed to recover for a miscarriage brought on by the shock stimulated by the injury. See, also, Buckbee v.
Third Ave. R.
R. Co ., 64 App. Div. 360 (slight electric shock); Powell v.
Hudson Val. Ry. Co ., 88 App. Div. 133
(slight burn); Comstock v.
Wilson , 257 N. Y. 231, supra (fright induced by prior collision caused passenger to faint and fracture skull); Sawyer v.
Dougherty , 286 App. Div. 1061 (blast of air filled with glass). n3 Injuries from fright are also recoverable generally in: "the burial right cases, the contract relationship cases [innkeeper and common carrier cases], the immediate physical injury cases * *
*, the Workmen's Compensation cases, the food cases, the wilful or wanton injury cases, and the right of privacy cases" (brackets mine; McNiece, 24 St. John's L. Rev., pp. 33-65). n4 No recovery: Newton v.
New York, N. H. & H. R. R. Co . 106 App. Div. 415 (plaintiff passenger in train collision); Hutchinson v.
Stern , 115 App. Div. 791 (plaintiff could not recover for loss of wife's services when she gave birth to a stillborn child while witnessing an attack on plaintiff); O'Brien v.
Moss , 220 App. Div. 464 (passenger in car collision).
Not only, therefore, are claimants in this situation encouraged by the Mitchell disqualification to perjure themselves, but the constant attempts to either come within an old exception, or establish a new one, lead to excess appellate litigation (see Gulf, C. & S. F. Ry. Co. v.
Hayter , 93 Tex. 239). [***38] In any event, even if a flood of litigation were realized by abolition of the [*242] exception, it is the duty of the courts to willingly accept the opportunity to settle these disputes.
The only substantial policy argument of Mitchell is that the damages or injuries are somewhat speculative and difficult to prove. However, the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions, and "it is beside the point * * * in determining sufficiency of a pleading". ( Woods v.
Lancet , 303 N. Y. 349, 356, supra ). In many instances, just as in impact cases, there will be no doubt as to the presence and extent of the damage and the fact that it was proximately caused by defendant's negligence. In the difficult cases, we must look to the quality and genuineness of proof, n5 and rely to an extent [**732] on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims. Claimant
4

should, therefore, be given an opportunity to prove that her injuries were proximately caused by defendant's negligence. n5 See New York County Supreme Court Special Rule for Medical Examinations in
Personal Injury Actions which permits the trial court to appoint an impartial expert when necessary for a just determination of the case.
Accordingly, the judgment should be reversed and the claim reinstated, with costs.
DISSENT:
Van Voorhis, J. (dissenting). In following the Massachusetts rule, which corresponded to that enunciated in this State by Mitchell v.
Rochester Ry. Co . (151 N. Y. 107), Mr. Justice Holmes described it as "an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone. Spade v.
Lynn & Boston Railroad , 168 Mass. 285,
288. Smith v.
Postal Telegraph Cable Co ., 174 Mass. 576." ( Homans v.
Boston El. Ry. Co ., 180 Mass.
456, 457-458.) Illogical as the legal theoreticians acknowledge this rule to be, it was Justice Holmes who said that the life of the law has not been logic but experience. Experience has produced this rule to prevent the ingenuity of special pleaders and paid expert witnesses from getting recoveries in negligence for nervous shock without physical injury, which was stated as well as possible in Mitchell v.
Rochester
Ry. Co . ( supra , p. 110) as follows: "If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury [*243] complained of may be [***39] easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims.
To establish such a doctrine would be contrary to principles of public policy."
The opinion likewise points out (p. 109) the speculative nature of the usual evidence of causation where it is contended that mere fright has resulted in "nervous disease, blindness, insanity, or even a miscarriage".
These statements in the Mitchell opinion are not archaic or antiquated, but are even more pertinent today than when they were first stated. At a time like the present, with constantly enlarging recoveries both in scope and amount in all fields of negligence law, and when an influential portion of the Bar is organized as never before to promote ever-increasing recoveries for the most intangible and elusive injuries, little imagination is required to envision mental illness and psychosomatic medicine as encompassed by the enlargement of the coverage of negligence claims to include this fertile field. In
Comstock v.
Wilson (257 N. Y. 231), Mitchell v.
Rochester Ry. Co . ( supra ) is not overruled, but the opinion by Judge Lehman (p. 238) cites it as well as the Massachusetts rule of Spade v.
Lynn & Boston R.
R. Co . (168 Mass. 285), as holding that "for practical reasons there is ordinarily no duty to exercise care to avert causing mental disturbance, and no legal right to mental security." Judge Lehman's opinion continues: "Serious consequences from mere mental disturbance unaccompanied by physical shock cannot be anticipated, and no person is bound to be alert to avert a danger that foresight does not disclose.
The conclusion is fortified by the practical consideration that where there has been no physical contact there is danger that fictitious claims may be fabricated. Therefore, where no wrong was claimed other than a mental disturbance, [**733] the courts refuse to sanction a recovery for the consequence of that disturbance" (pp. 238-239).
The problem involved in enlarging the scope of recovery in negligence, even in instances where, as here, an enlargement [*244] might be justified on purely theoretical grounds, is that, when once the door has been opened, [***40] the new and broader rule is in practice pressed to its extreme conclusion. *
Courts and juries become prone to accept as established fact that fright has been the cause of mental or physical consequences which informed medical men of balanced judgment find too complicated to trace.
Once a medical expert has been found who, for a consideration, expresses an opinion that the relationship of cause and effect exists, courts and juries tend to lay aside critical judgment and accept the fact as stated.
5

* In an article on this subject written in 1944, 30 Va. L. Rev. 193, 217-220, the following are listed as clinical disorders probably related to emotional stimulation, in addition to the more familiar psychiatric disorders, to which liability would be extended by overruling the principle of
Mitchell v.
Rochester Ry. Co., supra : bronchial asthma, hyperventilation tetany, DaCosta's syndrome, angina pectoris, hypertension, neurocirculatory asthenia, rheumatoid arthritis, tremors and contractures, mucous colitis, peptic ulcer, dyspepsia and gastritis, retention of urine, enuresis, impotence, dysmenorrhoea, thyrotoxicosis, diabetes mellitus, anorexia nervosa, neurodermatitis, psoriasis. A medical authority is cited in each instance supporting the emotional nature of each of these disorders.
This is the practical reason mentioned by Judges Holmes and Lehman. The Pennsylvania Supreme
Court has recently decided that to hold otherwise "would open a Pandora's box." ( Bosley v.
Andrews ,
393 Pa. 161, 168.)
In my view the judgment dismissing the claim should be affirmed.
6

Cynthia Johnson et al., Respondents, v. Jamaica Hospital, Appellant
[NO NUMBER IN ORIGINAL]
Court of Appeals of New York
62 N.Y.2d 523; 467 N.E.2d 502; 478 N.Y.S.2d 838; 1984 N.Y.
LEXIS 4413
May 1, 1984, Submitted July 3, 1984, Decided
PRIOR HISTORY:
Appeal, by permission of the Appellate Division of the Supreme Court in the Second Judicial
Department, from an order of said court, entered October 17, 1983, which affirmed an order of the
Supreme Court at Special Term (Joseph J. Kunzeman, J.), entered in Queens County, denying a motion by defendant to dismiss the complaint for failure to state a cause of action. The following question was certified by the Appellate Division: "Was the order of this court dated October 17, 1983 properly made?"
Plaintiffs, Cynthia Johnson and Percy Williams, are the parents of a daughter, Kawana, born June 8, 1981 in defendant Jamaica Hospital. After Cynthia's discharge, the infant remained in the hospital nursery for further treatment. When Cynthia visited on June 16, 1981 -- a day on which defendant had received two bomb threats -- it was discovered that Kawana was missing. She apparently had been abducted from the nursery that day. She was recovered by the police and returned to her parents approximately four and one-half months later. A separate action for damages has been commenced against defendant on her behalf, which is not a part of this appeal. Prior to Kawana's recovery, plaintiffs instituted the present action. In their first cause of action, plaintiffs allege that they are Kawana's parents, that she was in defendant's care and custody for treatment, that she disappeared during that time and defendant had been unable to account for her disappearance, and that they have suffered grief, mental torment, pain and anguish as a result of defendant's negligence in failing "to exercise due and proper care and caution in its custody, care and treatment of * * * Kawana." Plaintiffs' second cause of action, based upon the doctrine of res ipsa loquitur , repeats these averments and concludes that "the occurrence alleged would not have taken place in the ordinary course of things if the defendant had not negligently failed to use proper care in the direction, control, management and maintenance of said hospital nursery, which was under the exclusive control, direction, management and maintenance of the defendant." Special Term denied defendant's motion to dismiss the complaint for failure to state a cause of action, and the Appellate
Division affirmed by a divided court.
The Court of Appeals reversed the order of the Appellate Division, dismissed the complaint, and answered the question certified in the negative, holding, in an opinion by Judge Kaye, that the parents of a newborn infant abducted from a hospital nursery may not recover damages from the hospital for their own emotional distress resulting from the hospital's negligence in its care of their child or in the management of its nursery.
Johnson v Jamaica Hosp ., 95 AD2d 598.
DISPOSITION:
Order reversed, with costs, complaint dismissed and question certified answered in the negative.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL:
Howard S. Davis and Barry M. Hoffman for appellant. An alleged failure of hospital security which causes the unexplained disappearance of an infant from a hospital nursery does not create a direct duty on the part of the hospital to the parents of the infant so as to allow the parents to recover for their mental distress. ( Palsgraf v Long Is. R. R. Co ., 248 NY 339; Pulka v Edelman , 40 NY2d 781; Tobin v Grossman ,
24 NY2d 609; Lafferty v Manhasset Med. Center Hosp ., 54 NY2d 277; Rainnie v Community Mem.
Hosp ., 87 AD2d 707; Aquilio v Nelson , 78 AD2d 195; Howard v Lecher , 53 AD2d 420; Becker v
7

Schwartz , 46 NY2d 401; Vaccaro v Squibb Corp ., 52 NY2d 809; Kennedy v McKesson Co ., 58 NY2d
500.)
Jacob Firester for respondents. I. Defendant hospital cannot assert that it owes no duty to the parents of a nine-day-old infant entrusted to its care for medical treatment. ( Pickle v Page , 252 NY 474.)
II. Appellant's contention that the law does not afford a remedy for mental pain and anguish and the line of cases it cites in support of its contention, is not applicable to the facts of the case at bar. ( Johnson v
State of New York , 37 NY2d 378; Becker v Schwartz , 46 NY2d 401; Tobin v Grossman , 24 NY2d 609.)
JUDGES:
Chief Judge Cooke and Judges Jones, Wachtler and Simons concur with Judge Kaye; Judge Meyer dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.
OPINIONBY:
KAYE
OPINION:
[*525] [**502] [***838] OPINION OF THE COURT
The parents of a newborn infant abducted from a hospital nursery may not recover damages from the hospital for their own emotional distress resulting from the hospital's negligence in its care of their child or in the management of its nursery. Plaintiffs' complaint for such damages should have been dismissed for failure to state a cause of action.
Plaintiffs, Cynthia Johnson and Percy Williams, are the parents of a daughter, Kawana, born June 8,
1981 in defendant Jamaica Hospital. After Cynthia's discharge, the infant remained in the hospital nursery for further treatment. When Cynthia visited on June 16, 1981 -- a day on which defendant had received two bomb threats -- it was discovered that Kawana was missing. She apparently had been abducted from the nursery that day. She was recovered by the police and returned to her parents approximately four and one-half months later. A separate action for damages has been commenced against defendant on her behalf, which is not a part of this appeal.
Prior to Kawana's recovery, plaintiffs instituted the present action. In their first cause of action, plaintiffs allege that they are Kawana's parents, that she was in defendant's care and custody for treatment, that she disappeared during that time and defendant had been unable to account for her disappearance, and that they have suffered grief, mental torment, pain and anguish as a result of defendant's negligence in failing "to exercise due and proper care and caution in its custody, care and treatment of * * *
Kawana." Plaintiffs' second cause of action, based [*526] upon the doctrine of res ipsa loquitur , repeats these averments and concludes that "the occurrence alleged would not have taken place in the ordinary course of things if the defendant had not negligently failed to use proper care in the direction, control, management and maintenance of said hospital nursery, which was under the exclusive control, direction, management and maintenance of the defendant."
After interposing an answer, defendant moved to dismiss the complaint for failure to state a cause of action. Special Term denied defendant's motion, and the Appellate [***839] Division affirmed by a divided court. [**503] Defendant was granted leave to appeal to this court by the Appellate Division, which certified the question whether its order affirming the denial of defendant's motion was properly made. We now reverse.
Assuming the allegations of plaintiffs' complaint to be true ( Cohn v Lionel Corp ., 21 NY2d 559,
562), no cause of action is stated. Plaintiff parents may not recover damages from defendant hospital for any mental distress or emotional disturbances they may have suffered as a result of the direct injury inflicted upon their daughter by defendant's breach of its duty of care to her. ( Howard v Lecher , 42
NY2d 109, 113; Becker v Schwartz , 46 NY2d 401, 413; Vaccaro v Squibb Corp ., 52 NY2d 809, 810.)
Although in Bovsun v Sanperi (61 NY2d 219) we recently decided that damages may be recovered for such indirect "psychic injuries" in limited circumstances, plaintiffs have stated no basis for recovering under the standard set forth in Bovsun in that they have not alleged that they were within the zone of danger and that their injuries resulted from contemporaneous observation of serious physical injury or death caused by defendant's negligence.
8

Plaintiffs contend, and the courts below concluded, that their complaint states a cause of action because the defendant hospital owed a duty directly to them, as parents, to care properly for their child, and that it was or should have been foreseeable to defendant that any injury to Kawana, such as abduction, would cause them mental distress. There is no basis for establishing such a direct duty. This court has refused to recognize such a duty on the part of a [*527] hospital to the parents of hospitalized children
( Kalina v General Hosp ., 13 NY2d 1023), and there is no reason to depart from that rule here.
In Kalina , the plaintiffs, an observant Jewish couple, gave express instructions to the defendant hospital that their newborn son was to be ritualistically circumcised on his eighth day by a mohel in accordance with the tenets of their religion. Instead, due to the alleged negligence and malpractice of the hospital, the baby was circumcised on his fourth day by a physician. The plaintiff parents sought recovery for their mental pain and suffering caused by the assault and battery upon their son. Special
Term granted defendants' motion to dismiss the complaint (31 Misc 2d 18) and we ultimately affirmed on
Special Term's opinion. In that opinion, the parents of the hospitalized child were held to be "interested bystanders" to whom no direct duty was owed.
"Both of the pleadings are insufficient because the plaintiffs as individuals, apart from their status as representatives of their son, do not have a legally protected interest under these circumstances ( Palsgraf v.
Long Is. R. R. Co ., 248 N. Y. 339). To paraphrase the language of Palsgraf , at page 341 -- the conduct of the defendants, if a wrong in relation to the son, was not a wrong in its relation to the plaintiffs, remote from the event. Rights are not abstractions but exist only correlatively with duties. Everyone who has been damaged by an interruption in the expected tenor of his life does not have a cause of action. The law demands that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him.
"The defendants here in accepting a relationship with the son assumed the risk of liability for a tortious performance to him. They did not assume any risk of liability that their acts might violate the personal sensibilities of others, be they the son's parents, his coreligionists or the community at large."
( Kalina v General Hosp ., 31 Misc 2d 18, 19, affd 18 AD2d 757, affd 13 NY2d 1023.)
[**504] [***840] Jamaica Hospital owed no more of a direct duty to the plaintiff parents to refrain from causing them psychic [*528] injury than did the defendants in Kalina, Howard, Becker and
Vaccaro . The direct injury allegedly caused by defendant's negligence -- abduction -- was sustained by the infant, and plaintiffs' grief and mental torment which resulted from her disappearance are not actionable. The foreseeability that such psychic injuries would result from the injury to Kawana does not serve to establish a duty running from defendant to plaintiffs ( Albala v City of New York , 54 NY2d 269,
273; Pulka v Edelman , 40 NY2d 781, 785), and in the absence of such a duty, as a matter of law there can be no liability ( De Angelis v Lutheran Med. Center , 58 NY2d 1053, 1055). That sound policy reasons support these decisions is evident here, for to permit recovery by the infant's parents for emotional distress would be to invite open-ended liability for indirect emotional injury suffered by families in every instance where the very young, or very elderly, or incapacitated persons experience negligent care or treatment.
There is, similarly, no basis for establishing such a duty in the contractual relationship between plaintiffs and defendant, or in the assertion that defendant was standing in loco parentis , or in our prior decisions in Johnson v State of New York (37 NY2d 378) and Lando v State of New York (39 NY2d 803).
There is no foundation for the alleged duty in the contractual relationship between plaintiffs and defendant, wherein plaintiffs agreed to compensate defendant for services rendered to their daughter.
The general rule in contract cases is that "absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty." ( Wehringer v
Standard Security Life Ins. Co ., 57 NY2d 757, 759.) Although some exceptions to this rule have been recognized, such as wrongful and abusive ejection by a hotel or innkeeper ( Boyce v Greely Sq. Hotel Co .,
228 NY 106; DeWolf v Ford , 193 NY 397), indignant expulsion or removal from a public facility ( Aaron v Ward , 203 NY 351; Smith v Leo , 92 Hun 242), or ejection by a common carrier ( Gillespie v Brooklyn
Hgts. R. R. Co ., 178 NY 347; Hamilton v Third Ave. R. R. Co ., 53 NY 25), they are not applicable here.
[*529] In nearly every case where such damages have been awarded, the breach has been wilful; and in many of them the ejection of the plaintiff was accompanied by wanton conduct, such as foul language, abuse of the plaintiff, accusations of immorality, and special circumstances of humiliation and indignity. Where there were no such accompanying facts, damages for mental suffering have usually been refused." (5 Corbin, Contracts, § 1076, p 432; see, also, 36 NY Jur 2d, Damages, § 102;
Restatement, Contracts 2d, § 353.)
9

A similar contractual duty was suggested by the Appellate Division dissenter in Kalina v General Hosp .
(18 AD2d 757, 758, supra ), but was not adopted by this court.
Nor can a duty to refrain from causing plaintiffs emotional distress be predicated on any notion that defendant stood in loco parentis while caring for the infant. First, there is no basis for a finding that defendant stood in loco parentis . That status requires more than mere temporary care and custody; an intent to support and care for the child on a permanent basis must be shown. ( Rutkowski v Wasko , 286
App Div 327, 331-332; 15 NY Jur [rev 1972], Domestic Relations, § 336.) A finding that one stands in loco parentis cannot be based solely upon a relationship where, as here, one is compensated for providing services to a child. (See Miller v Davis , 49 Misc 2d 764 [***841] [Jasen, J.].) There are no allegations in plaintiffs' complaint to support the conclusion that defendant, at the time of the [**505] abduction, stood in loco parentis . Second, one in loco parentis assumes duties to the child, not to the child's parents.
Third, it is doubtful that even the child involved would have a cause of action against one in loco parentis for action that, as alleged here, amounted to negligent supervision. (See Holodook v Spencer , 36 NY2d
35.) In short, the contention that defendant Jamaica Hospital stood in loco parentis to Kawana -- not even asserted by plaintiffs in their complaint, but made by the Appellate Division -- adds nothing to plaintiffs' claims.
Finally, our prior holdings in Johnson v State of New York (37 NY2d 378, supra ) and Lando v State of New York (39 NY2d 803, supra ) provide no basis for recovery. In neither case was liability based upon a hospital's breach of care to its patient causing direct injury to the patient [*530] resulting in emotional injury to relatives of the patient. In Johnson the defendant hospital negligently sent a telegram to plaintiff notifying her of her mother's death when in fact her mother had not died, and in Lando the defendant hospital negligently failed to locate a deceased patient's body for 11 days, when it was found in an advanced state of decomposition. Each case presented exceptional circumstances in which courts long ago recognized liability for resultant emotional injuries: a duty to transmit truthfully information concerning a relative's death or funeral ( Johnson v State of New York , 37 NY2d 378, 381-382, supra ), which the hospital assumed by sending the message ( Lafferty v Manhasset Med. Center Hosp ., 54 NY2d
277, 280), and the mishandling of or failure to deliver a dead body with the consequent denial of access to the family ( Finley v Atlantic Transp. Co ., 220 NY 249; Darcy v Presbyterian Hosp ., 202 NY 259).
Neither exception is applicable here.
In summary, Jamaica Hospital, even if negligent in caring for Kawana and directly liable to her, is not liable for emotional distress suffered by plaintiffs as a consequence of the abduction. This is in accord with the majority rule in this country. (Recovery for Mental or Emotional Distress Resulting From Injury to, or Death of, Member of Plaintiff's Family Arising From Physician's or Hospital's Wrongful Conduct,
Ann., 77 ALR3d 447.) There is no duty owing from defendant to plaintiffs to refrain from negligently causing such injury. To hold otherwise would be to invite the very sort of boundless liability for indirect emotional injury that we have consistently rejected.
The dissent would reach the opposite result, based on its own policy determination that defendant rather than plaintiffs should be required to bear the burden of plaintiffs' psychic injury. The dissent argues that our prior decisions have recognized that an action should lie for any infringement of parents' right to custody "if liability could but be circumscribed", and that this case presents such an opportunity, as this is not a common occurrence and the class of persons permitted to recover is sufficiently limited
(dissent, at pp 533, 534). While disagreeing with the dissent's policy determination, we additionally point out that the cited authorities do not support the proffered result.
[*531] This court did not recognize a parent's interest in custody as deserving of protection or suggest that one could be liable in appropriate circumstances for any infringement of that interest in either Howard v Lecher (42 NY2d 109) and Tobin v Grossman (24 NY2d 609) -- which concerned liability for injuring, or failing to prevent, disease in children -- or De Angelis v Lutheran Med. Center
(58 NY2d 1053) and Johnson v State of New York (37 NY2d 378, supra ) -- which were actions by children to recover for injury to, and the false report [***842] of the death of, parents. Also, as shown above, decisions such as Darcy v Presbyterian Hosp . (202 NY 259), Gostkowski v Roman [**506]
Catholic Church (262 NY 320) and the numerous out-of-State cases dealing with death notifications and the mishandling of dead bodies have long been confined to their peculiar subject matter, and lend no support to plaintiffs' claims. Finally, in citing Pickle v Page (252 NY 474), McGrady v Rosenbaum (62
Misc 2d 182, affd 37 AD2d 917) and Lisker v City of New York (72 Misc 2d 85), the dissent recognizes, as it must, that those cases dealt with intentional torts such as violent abduction, willful disobedience of a court custody order, and wrongful detention, hardly the situation here. The dissent would argue that, whether defendant's act be intentional or negligent, there is no difference in plaintiffs' injury, and consequently should be no difference in defendant's liability. But this statement ignores the fact that, as
10

a matter of settled law, tort liability is predicated on the nature of the act of the tort-feasor, not simply the injury of the victim.
The suggestion that liability would be severely limited is also without foundation. Just as it is now suggested that Bovsun v Sanperi (61 NY2d 219, supra ) marks the beginning of a rationale (dissent, at p
532), any right to recover for emotional injury sustained by plaintiffs because of defendant's negligence in the "care, custody and management" of their child cannot rationally be refused to other parents, relatives or custodians of persons to whom caretakers of various types, such as schools and day care centers, are alleged to have breached a similar duty. In considering a new duty, the court's concern for its ramifying consequences should hardly be disparaged (dissent, at [*532] p 532). Not every injury can be compensated, and "[the] problem for the law is to limit the legal consequences of wrongs to a controllable degree." ( Tobin v Grossman , 24 NY2d 609, 619, supra .)
Accordingly, the order of the Appellate Division should be reversed, the certified question answered in the negative, and the complaint dismissed.
DISSENTBY:
MEYER
DISSENT:
Meyer, J. (dissenting). I had thought that the fear of "open-ended liability for indirect emotional injury" (majority opn, at p 528) had long ago been laid to rest ( Battalla v State of New York , 10 NY2d
237, 240: "'[all] these objections have been demolished many times, and it is threshing old straw to deal with them.' [Prosser, Torts (2d ed), § 37, pp. 176-177.]"; Tobin v Grossman , 24 NY2d 609, 615) and that
Bovsun v Sanperi (61 NY2d 219), with its recognition that serious and verifiable emotional disturbance
( id ., at p 231) suffered by an immediate family member ( id ., at p 233) was a compensable injury, marked the beginning of a rationale for determining just when "[freedom] from mental disturbance is * * * a protected interest in this State" ( Ferrara v Galluchio , 5 NY2d 16, 21). Tobin recognized that "[the] impact on a mother of a serious injury to her child of tender years is poignantly evident" (24 NY2d, at p
615) but declined to extend the duty of a negligent actor to cover the mother ( id ., at p 617), largely because the court could discern no logical way to draw a limiting line among siblings, parents, grandparents, relatives or other in loco parentis ( id ., at pp 615, 616, 617, 618, 619).
The zone of danger concept rejected by Tobin ( id ., at p 616) was accepted by Bovsun , in part because it limited recovery not only to those within the zone of danger, but also to members of the immediate family of the [***843] person injured or killed (61 NY2d, at pp 229, 230, 231, 232) who had themselves suffered a serious and verifiable emotional disturbance [**507] ( id ., at p 231). But Bovsun's adoption of the zone of danger concept need not, and should not, be read as barring recovery by parents who suffer serious and verifiable emotional injury as the result of the negligent infringement by a hospital of the parents' right to custody of their child, even though the parents are not within the zone of danger when the infringement occurs. In my view the [*533] parental right to custody is sufficiently distinct from physical injury to or death of a child, the class of persons permitted to recover sufficiently limited, and the psychological trauma to the parents resulting from infringement of their custodial rights is direct rather than consequential and sufficiently probable in human experience that they should be permitted to recover upon proof of a serious and verifiable emotional disturbance. I, therefore, respectfully dissent.
The question to be decided on a motion to dismiss for failure to state a cause of action is whether any valid cause of action can fairly be gathered from the allegations of the complaint ( Condon v Associated
Hosp. Serv ., 287 NY 411, 414). The "sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275; accord 219 Broadway Corp. v Alexanders, Inc ., 46 NY2d 506, 509). It is, therefore, irrelevant that the complaint is framed in terms of negligence rather than negligent infringement of the parents' right to custody.
The majority finds no direct duty on the part of the hospital to plaintiffs to refrain from causing them psychic injury. But, as Professor Prosser pointed out (and as we in De Angelis v Lutheran Med. Center ,
58 NY2d 1053, 1055, agreed), duty "is a shorthand statement of a conclusion, rather than an aid to analysis itself. It * * * is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection"
11

(Prosser, Torts [4th ed], pp 325-326). The policy determination to be made may be stated as whether the interests of plaintiffs and defendant and the relationship between them are such that defendant rather than plaintiffs should be required to bear the burden of plaintiffs' psychic injury. n1 n1 The effect on the courts of recognition of such a right is not considered, it being "the business of the law to remedy wrongs that deserve it, even at the expense of a 'flood of litigation'"
(Prosser, Torts [4th ed], p 51; Battalla v State of New York , 10 NY2d 237, 241, 242). But the burden should not be great, interference with the right to custody not being a common occurrence
(cf. Bovsun , 61 NY2d 219, at p 229), possible plaintiffs being limited to parents and it being required under Bovsun's rule that there have been serious and verifiable emotional injury.
[*534] The parents' interest in the care, custody and management of their child is recognized as not only a constitutional fundamental ( Santosky v Kramer , 455 U.S. 745, 753) and as a statutory imperative
(Social Services Law, § 384-b, subd 1, par [a], cl [ii]), but also by our prior decisions as a real and genuine interest deserving of protection if liability could but be circumscribed in a manner consistent with reason and practicality ( Howard v Lecher , 42 NY2d 109, 112; Tobin v Grossman , 24 NY2d 609,
615, supra ; see De Angelis v Lutheran Med. Center , 58 NY2d 1053, 1055, supra; Johnson v State of New
York , 37 NY2d 378, 382-383; Pickle v Page , 252 NY 474, 477).
The hospital's interest is in not being burdened with unwarranted controls in order [***844] to avoid liability and not having to pay damages for what may be a feigned injury or to so large a group of plaintiffs as to impose upon it a burden disproportionate to its negligent act. Because the matter [**508] arises on a motion to dismiss for failure to state a cause of action, plaintiffs' allegations of negligence on defendant's part must be accepted as true. There is, therefore, nothing before the court to indicate what, if any, change in hospital procedures would be required were there imposed upon it a duty to exercise reasonable care not to permit a newborn baby to be removed from the hospital by someone other than the parents or a person having the parents' permission to do so, or how great a burden in time or cost such a duty would impose. Clearly, however, it cannot simply be presumed that the burden would be so great as to foreclose imposition of liability, the more particularly so in view of the fact that it is a matter of common knowledge that hospitals already have a checkout procedure.
From the hospital's side, then, the policy considerations are reduced to the amorphous character of mental distress and the limitation of the class of plaintiffs. The first is, however, answered by Bovsun's requirement of serious and verifiable emotional disturbance, n2 and the second by the [*535] limitation of the right of recovery to the parents, the only persons with whom the hospital has a relationship from which springs the duty of reasonable care. n3 n2 ( Bovsun does not speak to the presentation of that standard to a jury; but see Rodrigues v
State of Hawaii , 52 Hawaii 156, 173; Damages In Tort Actions [Matthew Bender, 1982], §
5.12[1], p 5-18; Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging
From Chaos, 33 Hastings LJ 583, 616; Brody, Negligently Inflicted Psychic Injuries: A Return to
Reason, 7 Villanova L Rev 232, 260.) n3 Thus, the fear, so many times expressed in Tobin , that the class of plaintiffs was limitless, or at least could not be reasonably contained, is not present in the situation of the instant case. It is, moreover, worth noting that in Gostkowski v Roman Catholic Church (262 NY 320, 325) we upheld a husband's cause of action against a cemetery for mental distress resulting from removal of his wife's body from its place of burial, but held the son of decedent to have no cause of action, simply because "In the multitude of such actions there is injustice."
With respect to the relationship between plaintiffs and defendant hospital, the majority acknowledges the contract relationship between the parties but concludes that it provides no foundation for recovery for mental distress. Yet there is ample authority that interference by third persons with the parents' custody of their child is an actionable tort for which damages for mental distress may be recovered ( Pickle v Page , 252 NY 474, supra; Lisker v City of New York , 72 Misc 2d 85; see McGrady v
Rosenbaum , 62 Misc 2d 182, affd 37 AD2d 917). Recovery by parents for mental distress has also been
12

sanctioned when a hospital entrusted with the care of a child refuses to deliver to the parents the body of the child after its death ( Darcy v Presbyterian Hosp ., 202 NY 259; Hassard v Lehane , 143 App Div 424;
Lubin v Sydenham Hosp ., 181 Misc 870), for the hospital's method of informing the parents of the death of their baby and its failure to locate the baby's body or confirm its death for a period of three weeks
( Muniz v United Hosps. Med. Center Presbyt. Hosp ., 153 NJ Super 79), for the hospital's refusal to release a child to the parents until the hospital's bill had been paid ( Bedard v Notre Dame Hosp ., 89 RI
195), n4 and for the loss by a cemetery association of the body of a still-born baby entrusted to it for burial ( Klumbach v Silver Mount Cemetery Assn ., 242 App Div 843, affd 268 NY 525). n4 Bedard recognized the cause of action but held plaintiff's complaint insufficient to permit recovery for mental anguish because it did not allege that physical ills followed and that the mental anguish was caused by defendant's willful and wrongful action.
It is not a sufficient answer to suggest that such holdings can be differentiated on the basis that the conduct involved was [***845] intentional rather than negligent, for that is but a result-oriented distinction. Prosser (Torts [4th ed], pp 329-330) notes that the older cases required "circumstances of
[*536] aggravation" in addition to negligence but that the majority of modern cases allow recovery without such circumstances and [**509] concludes that "What all of these cases appear to have in common is an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. There may perhaps be other such cases. Where the guarantee can be found, and the mental distress is undoubtedly real and serious, there is no essential reason to deny recovery." There is no difference in plaintiffs' injury whether defendant's act be negligent or intentional ( Schultz v Barberton Glass Co ., 4 Ohio St 3d 131, 135-136;
Rodriguez v State of Hawaii , 52 Hawaii 156, 171; Goodrich, Emotional Disturbance as Legal Damage,
20 Mich L Rev 497, 504-505; McNiece, Psychic Injury and Tort Liability In New York, 24 St John's L
Rev 1, 63; Note 21 Cornell L Q 166, 170).
Furthermore, the purpose of awarding compensatory damages for a tort is not to punish the wrongdoer but to compensate the person injured. "Punitive damages and damages for wounded feelings, though similar, are not the same" ( Gostkowski v Roman Catholic Church , 262 NY 320, 324, supra ; see, also, Pickle v Page , 252 NY, at p 475), and moral culpability has nothing to do with the policy considerations which formed the basis of Tobin's denial of recovery for emotional disturbance
("foreseeability of the injury, proliferation of claims, fraudulent claims, inconsistency of the zone of danger rule, unlimited liability, unduly burdensome liability, and the difficulty of circumscribing the area of liability" [ 24 NY2d, at p 615]) and, therefore, should have nothing to do with the right of the present plaintiffs to compensatory damages for their mental distress. Particularly is this so when, as here, the injury results not intermediately from physical injury to the child but immediately to the parents from the interference with their right to custody and, therefore, rather than being consequential, as the majority suggests (majority opn, at pp 526, 530) has resulted not from injury inflicted upon Kawana but directly to plaintiffs themselves ( Pickle v Page , 252 NY, at p 482; compare Kennedy v McKesson Co ., 58 NY2d
500, 506-507).
[*537] No more persuasive is the distinction drawn by the majority with respect to mental distress resulting from breach of a contract-related duty. Although the exceptions to which it refers concerned willful or abusive actions of the defendant, the present day concept, as stated in section 353 of the
Restatement of Contracts, Second, is that "Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result." Breach of a contract to return to parents the custody of a child entrusted to a hospital for medical care by negligently failing to prevent abduction of the child is, as
Tobin and other cases cited in the beginning of this opinion agree, of such a kind that mental distress is a particularly likely result (see Burrus v Nevada-California-Oregon Ry ., 38 Nev 156, app dsmd 244 U.S.
103 [breach of contract to transport gravely ill son to hospital]; Sullivan v O'Connor , 363 Mass 579
[disfigurement by plastic surgery necessitating a further operation]).
It is only necessary to note, finally, that Kalina v General Hosp . (13 NY2d 1023) is distinguishable, as is evident from the portion of the Special Term opinion quoted by the majority. No duty was found in
Kalina because the hospital had not assumed "any risk of liability that their acts might violate the personal sensibilities of others" (31 Misc 2d 18, at p 19, [***846] adopted by this court 13 NY2d, at p
1025). Here, however, the hospital in accepting custody of plaintiffs' daughter for medical treatment assumed the obligation to return custody to the parents at the end of that treatment and, it is alleged, by
13

negligently failing to protect against the abduction of the child from the hospital, interfered with the custodial rights of the parents.
[**510] We have recently recognized in relation to mental distress "that the drawing of any line necessarily differentiates between close cases" ( Kennedy v McKesson Co ., 58 NY2d, at p 507). But the line should not be arbitrarily or artificially drawn. Where, as here, parents have been subjected by the hospital's failure to protect their right to custody of their child to the anguish of not knowing for a period of four months where the child was, or whether she was alive or dead, there is a sufficient guarantee of genuineness [*538] and seriousness of their claim to warrant its submission to a trier of fact. To hold under such circumstances that there is no duty "is a pitiful confession of incompetence on the part of courts of justice" ( Simone v Rhode Is. Co ., 28 RI 186, 195).
14

In Re: AIR CRASH DISASTER AT COVE NECK, LONG ISLAND,
NEW YORK ON JANUARY 25, 1990. SAMUEL TISSENBAUM and
NETTIE TISSENBAUM, Plaintiffs against AEROVIAS
NACIONALES DE COLOMBIA, S.A., doing business as AVIANCA
AIRLINES, Defendant.
90 CV 2354 (TCP)
UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK
885 F. Supp. 434; 1995 U.S. Dist. LEXIS 4241
March 28, 1995, Decided
COUNSEL: [**1] For Plaintiffs Tissenbaum: Marc S. Moller, Esq. and Blanca Rodriguez, Esq.,
Kreindler & Kreindler, New York, New York.
For Defendant Avianca Airlines: Michael Holland, Esq., Condon & Forsyth, New York, New York.
JUDGES: Thomas C. Platt, Chief Judge, U.S.D.C.
OPINIONBY: Thomas C. Platt
OPINION:
[*436] MEMORANDUM and ORDER
PLATT, Chief Judge.
Plaintiffs seek to recover from Aerovias Nacionales De Columbia ("AVIANCA") for the negligent infliction of emotional distress allegedly caused when AVIANCA Flight 052 crashed into the plaintiffs' property and for the property damage sustained by the crash. Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that New York law does not allow recovery for purely emotional distress injuries, negligently inflicted, under the facts set forth in this case and that plaintiffs have already recovered for the property damage from Aetna Casualty and Surety Company ("Aetna"), their home insurer.
This Court partially grants defendant's motion for summary judgment. Summary judgment is granted in favor of the defendants on the emotional injury issue as plaintiffs failed to provide evidence that the defendant owed them a direct duty of [**2] care, that the defendant breached that duty, and that the breach was the cause of their injuries. Additionally, plaintiffs' alternative tortious theory of intentional trespass does not preserve their personal injury claims. This Court denies summary judgment on the issue of the property damage claims to the extent plaintiffs seek to recover for uninsured losses.
BACKGROUND:
I. FACTS:
On January 25, 1990, Avianca Airlines Flight 052, a Boeing 707 aircraft, crashed in the Village of
Cove Neck, Nassau County, New York, killing sixty five passengers and eight crew members, and injuring eighty four passengers and one crew member. As the plane crashed into a residential neighborhood, injuries were sustained by non-passengers who were on the ground at the time of the accident.
[*437] Samuel and Nettie Tissenbaum, husband and wife, n1 were in their home located at 16
Tennis Court Road, Cove Neck, New York, at about 9:25 pm on January 25, 1990, when Avianca Flight
052 crashed into their backyard. At the time of the crash, Nettie Tissenbaum, who was seventy one years
15

old, was in the shower and Samuel Tissenbaum, who was seventy six years old, was watching TV in a nearby room. At the moment [**3] of impact, Mrs. Tissenbaum heard what she thought was a
"tremendous clap of thunder," felt the house shake and realized the power was out. See Deposition of
Nettie Tissenbaum, August 21, 1991 at 13, Exhibit F to Holland Affidavit (hereinafter N.T. dep.). Mr.
Tissenbaum thought an earthquake had occurred. See Deposition of Samuel Tissenbaum, August 21,
1991 at 94, 97, Exhibit F to Holland Affidavit (hereinafter S.T. dep.). n1 Samuel Tissenbaum passed away on September 22, 1993.
Upon hearing the loud noise, Nettie Tissenbaum ran out of the shower and into the room where her husband was. N. T. dep. at 14-16. Plaintiffs procured flashlights and went downstairs to see what had caused the loud noise and power outage. As they walked down the stairs, plaintiffs began to hear "weird" noises, "like animals caught in a trap," coming from the back of the house. S.T. dep., p. 94; N.T. dep. p.
17. When they arrived downstairs, Mr. Tissenbaum shone the flashlight through the glassdoors leading to their deck and [**4] plaintiffs were shocked to see that a plane had crashed into the deck and backyard.
N.T. dep. at 19; S.T. dep. at 95.
Upon realizing the tragic situation, plaintiffs went back inside to call for emergency help but the phone was dead. Mr. Tissenbaum ran to his car to drive to the nearby police station when a neighbor told him help was on the way. S.T. dep. at 95.
When the firefighters first arrived they sprayed the deck with a chemical foam to protect it from any possible fire damage if there were a post-crash explosion. N.T. dep. at 23, 26. After securing the house against possible fire damage, rescue workers were in and out of the Tissenbaum household all night asking for water, using the bathrooms, and borrowing their linens and tools. N.T. dep. at 24-26; S.T. dep. at 103-104. The Tissenbaum garage became in effect "command central." Curious observers also entered the Tissenbaum property all through the night. S.T. dep. at 101.
The evacuation of the passengers finally ended at about 6:00 am. The dead bodies were placed on the
Tissenbaums' driveway and in their garage. N.T. dep. at 29; S.T. dep. at 102. For days plaintiffs had no electricity, telephone service or running water, [**5] N.T. dep. at 29, and they could not leave their home as rescue vehicles blocked their passage. S.T. dep. at 103. For weeks the wreckage of the plane and heavy equipment remained on their property. N.T. dep. at 32-33.
II. Claims
A. Claims for Personal Injury
Plaintiffs contend that from the moment they heard the loud noise and throughout the ordeal that followed they were in great fear for their safety. Mrs. Tissenbaum claims she still suffers from great anxiety, fearfulness, phobias, premonitions of disaster, disorientation and depression, N.T. dep. at 31-32, and that her pre-existing diabetes condition was exacerbated by the accident so that it is difficult to stabilize her blood sugar levels and weight. n2 N.T. dep. at 80, 86-87. Allegedly, the crash caused Mr.
Tissenbaum to suffer from anxiety, depression, insomnia and increased angina pains affecting his ability to perform routine tasks. n3 S.T. dep. at 126-27. Neither plaintiff suffered any direct physical injuries from the plane crash. n2 Nettie Tissenbaum had been a diabetic for approximately twenty years prior to the accident. [**6] n3 Mr. Tissenbaum had suffered three heart attacks prior to the time of the accident. S.T. dep. at 104, 138-144.
Plaintiffs sought psychiatric treatment from Carl Saviano, M.D. to help them cope with the emotional stress caused by the accident. According to Dr. Saviano, Mr. and Mrs. Tissenbaum suffered from post-traumatic stress disorder resulting from the Avianca [*438] plane crash from the date of the
16

accident through and beyond February, 1991, the date they ended their psychiatric treatment. See
Affidavit of Carl Saviano, August 2, 1994, Exhibit 10 to B. Rodriguez affidavit.
In light of the stress and emotional harm plaintiffs suffered as a result of this plane crash, plaintiffs seek personal injury damages on the theories that defendant committed negligent infliction of emotional distress, and intentional trespass.
B. Property Damage Claim
The Tissenbaums submitted a claim for property damage to Aetna, their homeowner's insurer, and received $ 58,037.00 for the insured property damage they sustained. Plaintiffs claim that their insurance did not adequately compensate them as they [**7] sustained $ 152,926.00 in actual property damages.
Additionally, the submitted claim did not include recovery for uninsured losses of interference with use of and enjoyment of their property.
At the time of the insurance settlement, the plaintiffs signed a subrogation statement in favor of
Aetna but not a release. Aetna settled its subrogation claim with Avianca for $ 40,000 and released
Avianca expressly for the subrogation claim only, but not for any claims made by plaintiffs for personal injury or uninsured losses resulting from the Avianca crash.
At the time of the accident, plaintiffs' home was for sale and they were receiving offers for approximately $ 700,000. In late 1989, after the crash, they sold the house in an "as is" condition for
$ 575,000.
DISCUSSION
I. Summary Judgment Standard:
A motion for summary judgment may be granted if the pleadings, admissions and affidavits read together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is to be entered against a party
"who fails to make a showing sufficient to establish the existence of an [**8] element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The court considers the evidence before it in the light most favorable to the non moving party.
II. Negligent Infliction of Emotional Distress:
A. Legal Standard
The New York State Court of Appeals n4 has permitted plaintiffs to recover in cases of purely emotional injury in extremely limited circumstances [ Lancellotti v. Howard, 155 A.D.2d 588, 547
N.Y.S.2d 654, 655 (2d Dep't. 1989)] in which (1) a "bystander" who was in the "zone of danger" suffers emotional trauma as a result of their observations or (2) the defendant breaches a direct duty to plaintiff which results in emotional injury to the plaintiff. New York State is reluctant to extend the boundaries of the narrowly drawn rules for recovery of negligent infliction of emotional distress. See Bravman v.
Baxter Health Care Corp., 794 F. Supp. 96, 100 (S.D.N.Y. 1992), aff'd in part, rev'd in part on other grounds, remanded, 984 F.2d 71 (2nd Cir. 1993), remanded, 842 F. Supp. 747 (S.D.N.Y. 1994). n4 New York State law applies in this case.
[**9]
B. Bystander Rule
According to New York common law, damages for purely emotional injury are recoverable when the plaintiff is threatened with bodily harm as a result of defendant's negligence and the plaintiff suffers emotional injury "from viewing the death or serious physical injury of a member of his or her immediate family." Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 847, 473 N.Y.S.2d 357 (N.Y. 1984).
Plaintiffs concede they cannot recover pursuant to the bystander rule as no member of their immediate family was injured in the accident.
C. Direct Duty Cases
New York State recognizes claims for negligent infliction of emotional distress in instances in which the plaintiff's emotional [*439] injury results from "'a breach of duty which "unreasonably (endangers)
17

the plaintiff's physical safety.'" Wilson v. Consolidated Rail Corp., 810 F. Supp. 411, 416 (N.D.N.Y.
1993) (quoting Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146 (2d Dept. 1986), reh'g. denied,
815 F. Supp. 585 (N.D.N.Y. 1993). A prerequisite to recovering for a claim of emotional injury is the existence of a duty owed directly to the claimant by one from whom recovery is sought. [**10] Lahann v. Cravotta, 228 N.Y.S.2d 371, 372-3 (1962); see, Battalla v. State of New York, 10 N.Y.2d 237, 176
N.E.2d 729, 730, 219 N.Y.S.2d 34 (1961).
The gravamen of this claim is whether the plaintiffs can prove the defendant owed them a specific duty, rather than just a general duty to society. See, Johnson v. Jamaica Hospital, 62 N.Y.2d 523, 467
N.E.2d 502, 503, 478 N.Y.S.2d 838 (1984). As this Court contemplates the duty airlines owe non-passengers, it must take into account that New York law narrowly defines the scope of an alleged tortfeasor's duty in order to ensure that "'the legal consequences of wrongs [are limited] to a controllable degree.'" Waters v. New York City Housing, 69 N.Y.2d 225, 505 N.E.2d 922, 924, 513 N.Y.S.2d 356
(1987) (quoting Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969)).
Plaintiffs contend that Avianca owed them a direct duty to operate its aircraft in a manner which would not cause harm to non passengers or their property. Defendant contends that it did not owe a direct duty to the Tissenbaums as they were merely bystanders to this accident who unfortunately were in the vicinity of the accident site and [**11] witnessed the aftermath of the collision.
In the New York cases in which defendant owes a direct duty to plaintiff for the purposes of collecting purely emotional damages the parties share a relationship analogous to an implied contractual relationship. For example, an infant plaintiff recovered for purely emotional damages against a state-owned ski resort when a negligent employee placed the child in a chair lift without securing the child's safety belt and the child suffered emotional trauma. Battalla v. State of New York, 176 N.E.2d at
730. In that instance, there was an implied understanding between the parties that the State would ensure the chair lift was operated safely and that understanding provided the basis of the State's liability. Id.
Parent plaintiffs were denied damages for purely emotional damages when there four and one-half (4 1/2) month old infant was kidnapped from the defendant hospital. Johnson v. Jamaica Hospital, 467 N.E.2d at 503-4. The court held the parents were not entitled to recover as the hospital's duty ran to the infant patient, the party with which the hospital had an implicit contractual relationship, and not to the parents.
Id. [**12]
This Court views the Tissenbaums' situation as analogous to the parents in Jamaica Hospital, and not the infant plaintiff in Battalla. The Tissenbaums are similar to the parent plaintiffs in that they undoubtedly suffered emotional injury resulting from the tortious activity at issue, but they are not in the kind of implied contractual relationship required to recover for negligently inflicted emotional distress.
Unlike the infant plaintiff in Battalla and the infant patient in Jamaica, the Tissenbaums never placed themselves in the care of Avianca prior to the accident. It is the passengers on the airplane who share the type of relationship necessary to recover emotional damages, not the people on the ground who had the unfortunate experience of being in the wrong place at the wrong time.
To support the proposition that passenger airlines owe a direct duty to non-passengers on the ground below the plane's flight path, plaintiffs cite Rehm v. United States, 196 F. Supp. 428 (E.D.N.Y. 1961). In that case, a plane operated by agents of the United States collided with an automobile driven by the plaintiffs, husband and wife, when the aircraft was forced to make an [**13] emergency landing on the
Southern State Parkway. Id. at 429. During the course of the accident, plaintiffs witnessed the crash as it occurred, and suffered physical and emotional injuries. Id. at 430-31. The Court allowed the plaintiffs to recover for their physical and emotional harms. Id. at 431.
[*440] The Rehm case differs dramatically from the case at issue, as it was not a case for purely emotional damages. If the Tissenbaums had suffered physical and emotional injury, as the plaintiffs in
Rehm did, there would be no question as to the viability of their tort claims against Avianca. Additionally, the plaintiffs in Rehm had a stronger case for recovery because they witnessed the accident as it occurred, while the Tissenbaum's injuries emanate from witnessing the aftermath of the collision. See Battalla 10
N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (plaintiff's awareness of the possible harm and dangerous incident were simultaneous); see also Shanahan v. Orenstein, 52 A.D.2d 164, 383 N.Y.S.2d 327 (1st
Dep't. 1976) (plaintiff was permitted to recover for negligently inflicted emotional injuries where she was a participant in the accident), appeal dismissed, [**14] 40 N.Y.2d 985, 359 N.E.2d 435, 390
N.Y.S.2d 927 (1976).
D. Outrageous Conduct
18

Additionally, plaintiffs set forth an infliction of emotional distress claim based on the outrageousness of the events in this case. To maintain such a claim there must be a genuine issue of fact as to whether defendant "who by extreme and outrageous conduct causes severe emotional distress to
(plaintiff) is subject to liability for such emotional distress." Murphy v. American Home Products Corp.,
58 N.Y.2d 293, 448 N.E.2d 86, 90, 461 N.Y.S.2d 232 (1983), rev'd on other grounds, 136 A.D.2d 229,
527 N.Y.S.2d 1 (1st Dep't. 1988). Liability exists when "'the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as so atrocious, and utterly intolerable in a civilized community." Id. (citing Restatement of Torts, Second §
46(1), comment (d)). Avianca's actions with regards to this tragic accident do not rise to the level extreme and reckless conduct necessary to maintain a claim for emotional damages based on outrageous conduct.
This Court recognizes that Avianca owed its passengers and crew a direct duty [**15] to provide them with safe passage from Columbia to New York. This Court is not prepared to extend Avianca's direct duty to all the non-passengers it's planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to "virtually limitless . . . tort liability" and to create untold economic and social burdens. Bacon v. Mussaw, 167 A.D.2d 741, 563 N.Y.S.2d 854, 856 (3d Dep't. 1990).
III. Tort of Trespass
The tort of trespass is the intentional and unlawful invasion of another's land. To meet the intent requirement the tortfeasor "need not intend or expect the damaging consequences of his intrusion," rather he need only "intend the act which amounts to or produces the unlawful invasion, and the intrusion must be . . . the immediate or inevitable consequence of what . . . he does so negligently as to amount to wilfulness." Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249, 250 (1954).
Plaintiffs maintain that their complaint sets forth a prima facie case for the intentional tort of trespass: to wit, that the Avianca flight #052 crashed onto plaintiffs' [**16] property and that the crash was the result of defendant's knowing, reckless and willful misconduct in exhausting its fuel supply so as to inevitably result in a crash. Defendant's response is that no evidence was adduced that suggests Avianca acted with deliberate disregard for life and that the crew of Flight 052 intentionally grounded the plane into the plaintiff's property.
This Court holds that there is no genuine issue of fact to support a claim for the tort of intentional trespass as there is no evidence to prove the necessary intent to invade unlawfully. There was never a legal finding in this case that Avianca acted in a manner which rose to the level of wilful misconduct in the invasion of property or that the crew in this case, all of whom perished but one, voluntarily crashed the flight into the plaintiffs' yard. Rather, when the plane ran out of gas, after holding over the airport for hours, it became impossible for any human being to act voluntarily and control the aircraft and it unfortunately and [*441] accidentally crashed into the Tissenbaum's yard.
IV. Property Damage Claims
Plaintiffs contend that whether their property damages are measured by the cost to restore [**17] the property to its original condition or by the diminution in the market value of their property the
$ 58,037.00 they received from Aetna did not compensate them adequately for the damage to their property. n5 Plaintiffs' total claim for property damage, supported by consultant's estimates for repair and restoration, was $ 152,926.00. n6 (Exh. 1, Affidavit of Blanca Rodriguez, Esq.) Alternatively, plaintiffs claim that if damages are measured by the diminution of the property value they were undercompensated because before the accident someone offered $ 725,000.00 to purchase their home and after the crash it sold for $ 575,000.00. Plaintiffs seek to recover from defendants either the difference between the amount paid by the insurer and the amount they claim is due them, or the difference in the pre and post accident amounts offered for the sale of their home. Additionally, plaintiffs seek to recover for the interference with their normal use and enjoyment of the property, which was not covered by their homeowner's policy. n5 Defendant argues that plaintiffs are seeking to recover for both diminution of property value and cost to restore, which is not permissible under New York law. See, Benavie v. Baker,
72 A.D.2d 541, 420 N.Y.S.2d 735, 736 (2d Dep't. 1979). This Court disagrees with defendant's interpretation of plaintiffs' papers. It appears plaintiff is stating whichever method is used to measure damages they have thus far been undercompensated and that they would be satisfied to recover fully under either formula. [**18]
19

n6 The following are estimates to repair plaintiffs' property damage caused by the crash of
Avianca #052:
1. Electrical - $ 997.00 plus tax,
2. Driveway - $ 12,210.00 plus tax,
3. Redwood Deck - $ 23,140.00 plus tax,
4. Landscape Damages: a. Area A - $ 104,100.00 + 23,000 for trees. b. Area B - $ 8,198.00 c. Area C - $ 2,756.00
5. Miscellaneous Carpentry Repairs - $ 925.00.
The estimates for items 1-4 were prepared by Dodds & Eder, Inc., 221 South Street, P.O. Box 150,
Oyster Bay, New York 11771. The estimates in item 5 were prepared by Richard C. Heinl, 92
Brixton Road South, West Hempstead, New York 11552.
Defendant contends the plaintiffs' claim for property damage should be dismissed because in June,
1990, plaintiffs recovered $ 58,037 from their insurer and then assigned their rights to Aetna to recover from Avianca for the monies paid to plaintiff from Aetna. Ultimately, Aetna and Avianca entered a settlement agreement for the monies paid from Aetna to the plaintiffs whereby Avianca paid Aetna
$ 40,000 for the property damage and Aetna released [**19] Avianca in the settlement of its subrogated claims only. n7
The extent of an insurer's liability to the insured "does not delineate absolutely the extent of the legal liability of a tortfeasor to the insured." 6A JOHN ALAN APPLEMAN & JEAN APPLEMAN,
INSURANCE LAW and PRACTICE § 4103 (1972). The fact that the insured plaintiffs assigned their rights to recover from Avianca for property damage to their insurance carrier does not affect plaintiffs' status as real parties in interest and therefore does not affect their ability to pursue a claim against the tortfeasor. CPLR § 1004 n8; Feeter v. Van Scott Bros., Inc., 74 Misc. 2d 388, 345 N.Y.S.2d 374, 375-76
(1973) (Where [**20] approximately 12% of fire loss was uninsured, insureds, who had executed a
"loan receipt" (or subrogation receipt) in favor of the insurer in consideration of receipt of $ 43,500 under home owner's policy, could maintain claims against the tortfeasor in their own names, for the amount paid by the insurer and for their uninsured loss.). n7 The release states "This release is given by THE AETNA CASUALTY AND SURETY
COMPANY in settlement of its subrogation claims only. It has no force or effect against those claims made by SAMUEL TISSENBAUM or other members of his family for personal injuries or uninsured losses arising from the Avianca Flight #052 crash on January 25, 1990. n8 § 1004 When joinder unnecessary. Except where otherwise prescribed by order of court, . . . a trustee of an express insured person who has executed to his insurer either a loan or subrogation receipt , . . or other similar agreement, . . . may sue or be sued without joining with him the person for or against whose interest the action was brought.
[*442] To interpret the release given to Avianca by Aetna the Court is governed by the principles of contract law so that "'where the language of a release is clear, effect must be given to the intent of the parties as indicated by the language employed.'" Dury v. Dunadee, 52 A.D.2d 206, 383 N.Y.S.2d 748,
750 (4th Dep't. 1976) [**21] (quoting Matter of Schaefer, 18 N.Y.2d 314, 221 N.E.2d 538, 540, 274
N.Y.S.2d 869 (1966)). If the language of an instrument limits the release to certain claims, "then the release will be operative as to those matters only." Herman v. Malamed, 110 A.D.2d 575, 487 N.Y.S.2d
791, 793 (1985) (citing Lanni v. Smith, 89 A.D.2d 782, 453 N.Y.S.2d 497 (4th Dep't. 1982), appeal withdrawn, 65 N.Y.S.2d 925 (1985)).
20

The fact that plaintiffs recovered from Aetna and subrogated to Aetna the right to sue the tortfeasor for recovery of Aetna's insurance payment does not destroy plaintiffs' status as real parties in interest or preclude plaintiffs from bringing claims for uninsured losses against the tortfeasor. The release between
Aetna and Avianca states that it is for the subrogated claims only and that it does not release Avianca from its responsibility for claims by the plaintiffs for personal injury and uninsured claims. This Court is bound to abide by the specific release language. In accordance with New York law, this Court holds that to the extent the plaintiffs are seeking recovery for uninsured repair and restoration expenses or diminution of property value together with [**22] interference with the quiet enjoyment of their land those claims are valid and defendant's motion for summary judgement is denied.
CONCLUSION
This Court sympathizes with the plaintiffs and believes they suffered emotional injury as a result of the tragic air disaster which ended up in their backyard. Nonetheless, summary judgment is granted in favor of the defendant on the issue of emotional damages as plaintiffs failed to establish the existence of an essential element of their case, specifically a direct duty running from the defendant airline to the plaintiffs. Additionally, this Court finds plaintiff, as a matter of law, may not maintain a claim of intentional trespass. Summary judgment is denied to the extent that the plaintiffs seek to bring claims against the tortfeasor to recover for uninsured losses which were never subrogated to Aetna.
SO ORDERED.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
March 28, 1995
21

Estelle Johnson, as Executrix of Nellie Johnson, Deceased, Claimant, and Fleeter
Thorpe, Appellant, v. State of New York, Respondent
Claim No. 52985
Court of Appeals of New York
37 N.Y.2d 378; 334 N.E.2d 590; 372 N.Y.S.2d 638; 1975 N.Y.
LEXIS 2014; 77 A.L.R.3d 494
June 6, 1975, Argued July 2, 1975, Decided
PRIOR HISTORY:
Johnson v State of New York , 44 AD2d 151.
Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial
Department, entered April 16, 1974, which modified, on the law, a judgment in favor of claimant Thorpe, entered upon a decision of the Court of Claims (Gustave G. Rosenberg, Ref.), awarding her $ 7,500. The modification consisted of limiting the award to $ 1,658.47.
DISPOSITION:
Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL:
Cornelius D. Murray and Barry R. Fischer for appellant. I. The court below erred in denying claimant damages for her emotional and mental suffering occasioned by the State's negligence. II. An individual is entitled to recover for mental anguish precipitated by a negligent act regardless of the absence of any actual physical threat against him. ( Battalla v State of New York , 10 NY2d 237; Torres v
State of New York , 34 Misc 2d 488; Lott v State of New York , 32 Misc 2d 296; Weingast v State of New
York , 44 Misc 2d 824.) III. The careless conduct of the State, in this case, constituted a breach of duty owed claimant. ( Tobin v Grossman , 24 NY2d 609.) IV. The mental suffering endured by claimant as a result of the State's negligence should reasonably have been foreseen by the State.
Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent. Battalla v State of New York , which permitted recovery for mental pain and suffering where there has been no bodily contact is limited to cases where complainant was threatened with bodily harm.
Extending Battalla to a situation where there was no threat of bodily harm would open the door to an unlimited number of strange and esoteric causes of action. ( Mitchell v Rochester Ry. Co ., 151 NY 107;
Battalla v State of New York , 10 NY2d 237; Tobin v Grossman , 24 NY2d 609; Kalina v General Hosp. of
City of Syracuse , 31 Misc 2d 18, 18 AD2d 757, 13 NY2d 1023; Gostkowski v Roman Catholic Church ,
262 NY 320.)
JUDGES:
Chief Judge Breitel. Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
OPINIONBY:
BREITEL
22

OPINION:
[*379] [**590] [***639] On claimant Fleeter Thorpe's appeal, the issue is whether the daughter of a patient in a State hospital, falsely advised that the patient, her mother, had died, may recover from the
State for emotional harm. She sustained the harm as a direct result of the negligent misinformation provided by the hospital in the course of it advising relatives of the death of a patient. The mother was in fact alive and well.
Claimant and her aunt, Nellie Johnson, since deceased, had filed a claim against the State for funeral expenses incurred, emotional harm and punitive damages. [**591] The Court of Claims awarded claimant $ 7,500 for funeral expenses undertaken on the false information, and for emotional harm. It denied her punitive damages, and dismissed the aunt's claim for insufficiency. The State appealed to the
Appellate Division and claimants cross-appealed. The Appellate Division modified, limiting the daughter's award to her pecuniary losses of $ 1,658.47, and otherwise affirmed as to both claimants. The aunt's estate, unlike the daughter, took no further appeal to this court.
There should be a reversal. The daughter of a hospital patient may recover for emotional harm sustained by her as a result of negligent misinformation given by the hospital that [*380] her mother had died. Key to liability, of course, is the hospital's duty, borne or assumed, to advise the proper next of kin of the death of a patient.
[***640] Claimant's mother, Emma Johnson, had been a patient in the Hudson River State Hospital since 1960. On August 6, 1970, another patient, also named Emma Johnson, died. Later that day, the hospital sent a telegram addressed to Nellie Johnson of Albany, claimant's aunt and the sister of the living
Emma Johnson. The telegram read:
"Regret to inform you of death of Emma Johnson please notify relatives make burial arrangements have undertaker contact hospital before coming for body hospital wishes to study all deaths for scientific reasons please wire post mortem consent
Hudson River State Hospital"
In accordance with the instructions in the telegram, claimant was notified of her mother's death by her aunt. An undertaker was engaged; the body of the deceased Emma Johnson was released by the hospital and taken to Albany that night. A wake was set for August 11, with burial the next day. In the interim claimant incurred expenses in preparing the body for the funeral, and in notifying other relatives of her mother's death.
On the afternoon of the wake, claimant and her aunt went to the funeral home to view the body.
After examining the body, both claimant and her aunt remarked that the mother's appearance had changed. Nellie Johnson also expressed doubt that the corpse was that of her sister Emma. Thereafter the doubts built up, and upon returning that evening for the wake, claimant, in a state of extreme distress, examined the corpse more closely and verified that it was not that of her mother. At this point, claimant became "very, very hysterical", and had to be helped from the funeral chapel.
The hospital was called, and the mistake confirmed. Claimant's mother was alive and well in another wing of the hospital. Later that evening at the hospital, the deputy director, with the authorization of the director, admitted the mistake to claimant and her aunt. Upon the trial it appeared that the hospital had violated its own procedures and with gross carelessness had "pulled" the wrong patient record.
After this incident, claimant did not work in her employment for more than 11 days. She complained of "[recurrent] [*381] nightmares, terrifying dreams of death, seeing the coffin * * * difficulty in concentrating, irritability, inability to function at work properly, general tenseness and anxiety." Her psychiatrist testified that "She appeared to be somewhat depressed, tremulous. She seemed to be under a considerable amount of pressure. She cried easily when relating events that occurred. I though that she spoke rather rapidly and obviously perspiring." Both her psychiatrist and that of the State agreed that, as a result of the incident, claimant suffered "excessive [***641] anxiety", that is, anxiety neurosis. Her expert, as indicated, testified that she showed objective manifestations of that condition.
One to whom a duty of care is owed, it has been held, may recover for harm sustained [**592] solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations ( Battalla v State of New York , 10 NY2d 237, 238-239; Ferrara v
Galluchio , 5 NY2d 16, 21-22; cf. Restatement, Torts 2d, § 313, subd [1]; see, generally, Tobin v
Grossman , 24 NY2d 609, 613; Prosser, Torts [4th ed], § 54, pp 330-333; 2 Harper and James, Law of
23

Torts, § 18.4, pp 1032-1034; Torts -- Emotional Disturbances, Ann., 64 ALR2d 100, 143, § 11 et seq.) .
In the absence of contemporaneous or consequential physical injury, courts have been reluctant to permit recovery for negligently caused psychological trauma, with ensuing emotional harm alone (see
Restatement, Torts 2d, § 436A; Prosser, Torts [4th ed], op. cit ., pp 328-330, and cases collected; 2
Harper and James, Law of Torts, op. cit . , 1031-1032, and cases collected; Torts -- Emotional
Disturbances, Ann., 64 ALR2d 100, 115, § 7; cf.
Weicker v Weicker , 22 NY2d 8, 11). The reasons for the more restrictive rule were best summarized by Prosser (op. cit ., p 329): "The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking". Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however, thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences.
There have developed, however, two exceptions. The first is [*382] the minority rule permitting recovery for emotional harm resulting from negligent transmission by a telegraph company of a message announcing death (see cases collected in Restatement, Torts 2d, App, § 436A; Prosser, op. cit ., p 329; but see Western Union Tel. Co. v Speight , 254 U.S. 17, 18; Curtin v Western Union Tel. Co ., 13 App Div
253, 255-256 [majority rule denying recovery]. The Federal rule does, however, permit recovery where the psychological trauma results in physical illness, see Kaufman v Western Union Tel. Co ., 224 F2d 723,
731, cert den 350 U.S. 947).
The second exception permits recovery for emotional harm to a close relative resulting from negligent mishandling of a corpse (see [***642] Prosser, op. cit ., pp 329-330, and cases collected).
Recovery in these cases has ostensibly been grounded on a violation of the relative's quasi-property right in the body (see Darcy v Presbyterian Hosp ., 202 NY 259, 262; but cf. Owens v Liverpool Corp . [1939],
1 KB 394, 400 [CA] [applying negligence principles], disapproved in Hay or Bourhill v Young [1943],
AC 92, 110 [HL] [per Lord Wright], but applied in Behrens v Bertram Mills Circus [1957], 2 QB 1, 28
[Devlin, J.]). It has been noted, however, that in this context such a "property right" is little more than a fiction; in reality the personal feelings of the survivors are being protected (Prosser, op. cit ., p 59).
In both the telegraph cases and the corpse mishandling cases, there exists "an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious" (p 330). Prosser notes that "[there] may perhaps be other such cases" (p
330; see Nieman v Upper Queens Med. Group , 220 NYS2d 129, 130, in which plaintiff alleged emotional harm due to negligent misinformation by a laboratory that his sperm count indicated sterility; and defendant's motion for judgment on the pleadings was denied). The instant claim provides an example of such a case.
[**593] As the Appellate Division correctly found and the State in truth concedes, the hospital was negligent in failing to ascertain the proper next of kin when it mistakenly transmitted the death notice to claimant's aunt and through her, at its behest, to claimant. While for one to be held liable in negligence he need not foresee novel or extraordinary consequences, it is enough that he be aware of the risk of danger.
The consequential funeral expenditures and the serious psychological [*383] impact on claimant of a false message informing her of the death of her mother, were all within the "orbit of the danger" and therefore within the "orbit of the duty" for the breach of which a wrongdoer may be held liable ( Palsgraf v Long Is. R. R. Co ., 248 NY 339, 343). Thus, the hospital owed claimant a duty to refrain from such conduct, a duty breached when it negligently sent the false message. The false message and the events flowing from its receipt were the proximate cause of claimant's emotional harm. Hence, claimant is entitled to recover for that harm, especially if supported by objective manifestations of that harm.
Tobin v Grossman (24 NY2d 609, supra) is not relevant. In the Tobin case, the court held that no cause of action lies for unintended harm sustained by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries [***643] (p 611). In this case, however, the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother's death.
Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital's breach of that duty. Thus, the rationale underlying the Tobin case, namely, the real dangers of extending recovery for harm to others than those directly involved, is inapplicable to the instant case. (Nor is Matter of Wolfe v Sibley, Lindsay & Curr
Co ., 36 N Y 2d 505, relevant to the tort rationale or holding in this case. There recovery was allowed solely on the elastic basis permitted by the Workmen's Compensation Law as applied in the courts.)
24

Moreover, not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act. The recovery of the funeral expenses stands only because a duty to claimant was breached.
Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach. In the light of the Battalla and Ferrara cases
(supra) , and the reasoning upon which they were based, recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so [*384] long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a "guarantee of genuineness" to which the court referred in the Ferrara case (5 NY2d 16, 21, supra ; see, also, Battalla v State of New York , 10
NY2d 237, 242, supra) .
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a determination of the facts in accordance with CPLR 5613.
Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.
Restatement of the Law, Second, Torts, §313
Restatement of the Law, Second, Torts
Copyright (c) 1965, The American Law Institute
Rules and Principles
Division 2 - Negligence
Chapter 12 - General Principles
Topic 6 - Conduct Negligent Because Intended or Likely to Cause Physically
Dangerous Emotional Distress
Restat 2d of Torts, §313
§313 Emotional Distress Unintended
(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the
actor
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of
a third person, and
(b) from facts known to him should have realized that the distress, if it
were caused, might result in illness or bodily harm.
(2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has
otherwise created an unreasonable risk of bodily harm to the other.
COMMENTS & ILLUSTRATIONS: Comment on Subsection (1):
a. The rule stated in this Section does not give protection to mental and emotional tranquillity in itself. In general, as stated in §436 A, there is no liability where the actor's negligent conduct inflicts only emotional distress, without resulting bodily harm or any other invasion of the other's interests. Such emotional
distress is important only in so far as its existence involves a risk of bodily harm, and as affecting the damages recoverable if bodily harm is sustained. See §903.
25

b. The rule stated in this Section is unnecessary to make the actor's conduct
negligent and, therefore, to subject him to liability if the actor should realize that it involves an unreasonable risk of causing bodily harm in some other manner, such as by immediate impact. As to the effect which is to be given to the fact that the act
negligent because otherwise threatening bodily harm results in the harm solely through the effect of the actor's conduct upon the mind or emotions of the other, see §436.
c. The rule stated in this Section which determines the liability of a person who negligently subjects another to emotional distress likely to cause physical consequences differs from the rule stated in §312, which determines the liability of one who intentionally subjects another thereto in one particular. As is stated in
Comment d under §312, the actor who intentionally subjects another to emotional
distress may under some circumstances take the risk that the other may, unknown to him, have a resistance to emotional strain which is less than that of the ordinary man although characteristic of a recognized minority of human beings. On the other hand, one who unintentionally but negligently subjects another to such an
emotional distress does not take the risk of any exceptional physical sensitiveness to emotion which the other may have unless the circumstances known to the actor should apprise him of it. Thus, one who negligently drives an automobile through a city street in a manner likely merely to startle a pedestrian on a sidewalk, is not required to take into account the possibility that the latter may be so constituted that the slight mental disurbance will bring about an illness.
Illustrations:
1. A is employed to drive B to a hospital. He is informed that B is desperately ill.
Nonetheless, he drives at a rapid rate of speed and cuts in and out of traffic. He thereby puts B in such fear of a collision that B suffers a serious increase in her illness. A is subject to liability to B.
2. Under the facts assumed in Illustration 1, A would not beliable to B if he had no reason to know of B's illness.
Comment on Subsection (2):
d. The rule stated in Subsection (1) applies only where the negligent conduct of the actor threatens the other with emotional distress likely to result in bodily harm because of the other's fright, shock, or other emotional disturbance, arising out of fear for his own safety, or the invasion of his own interests. It has no application where the emotional distress arises solely because of harm or peril to a third person, and the negligence of the actor has not threatened the plaintiff with bodily harm in any other way.
Thus, where the actor negligently runs down and kills a child in the street, and its mother, in the immediate vicinity, witnesses the event and suffers severe
emotional distress resulting in a heart attack or other bodily harm to her, she cannot recover for such bodily harm unless she was herself in the path of the vehicle, or was in some other manner threatened with bodily harm to herself otherwise than through the emotional distress at the peril to her child.
As to the rule to be applied where the other is so threatened with bodily harm in another manner, and instead suffers emotional distress at the peril or harm of a third person, which results in bodily harm to the other, see §436.
REPORTERS NOTES: This Section has been changed from the first Restatement by eliminating the Caveat, and adding in its place Subsection (2).
26

When this Section was originally submitted to the Institute, the cases on bodily harm caused by emotional distress at the peril of a third person were few, and rather evenly divided. Three older cases, all in inferior courts, had allowed recovery to mothers who suffered bodily harm through emotional distress at peril to their children: Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927 (1912), appeal denied,
177 Ala. 672, 58 So. 1038. . . .
Three older cases had denied recovery. . . .
Since the appearance of the first Restatement, the only case allowing recovery has been Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674, 122 A.L.R. 1468 (1937), affirmed on rehearing, 135 Neb. 232, 280 N.W. 890, 122 A.L.R. 1475, in which the mental disturbance arose from a number of causes, and was only in part at peril of third persons. . . .
Bystanders, other than spouses and parents, always have been denied recovery:
Bourhill v. Young, [1943] A.C. 92 (H.L.); Angst v. Great Northern R. Co., 131 F.
Supp. 156 (D. Minn. 1955); Blanchard v. Reliable Transfer Co., 71 Ga. App. 843, 32
S.E.2d 420 (1944); Van Hoy v. Oklahoma Coca-Cola Bottling Co., 205 Okla. 135,
235 P.2d 948 (1951).
In all of these decisions, the language used is broad enough to deny recovery for the effects of mental disturbance at harm or peril to any third person, even on the part of near relatives.
The position now taken in Subsection (2) represents acceptance of this heavy weight of authority, despite the feeling of a number of those present at the Institute meeting, that the situation of a mother who sees her child negligently killed before her eyes is one in which recovery would be justified.
As to the effect of the fact that the plaintiff was threatened with bodily harm in some manner other than through emotional distress at peril or harm to another, see
§436.
Restatement of the Law, Second, Torts, §436
Restatement of the Law, Second, Torts
Copyright (c) 1965, The American Law Institute
Rules and Principles
Division 2 - Negligence
Chapter 16 - The Causal Relation Necessary to Responsibility for Negligence
Topic 1 - Causal Relation Necessary to the Existence of Liability for Another's Harm
Title B - Rules Which Determine the Responsibility of a Negligent Actor for Harm
Which His Conduct Is a Substantial Factor in Producing
Restat 2d of Torts, §436A
§436A Negligence Resulting in Emotional Disturbance Alone
If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional
disturbance.
27

COMMENTS & ILLUSTRATIONS: Comment:
a. The rule stated in this Section stands in contrast to those stated in Ё 46 and 48, as to the intentional infliction of emotional distress. It is also to be contrasted with the rules stated in §436, under which an actor who has negligently created an unreasonable risk of causing either bodily harm or emotional disturbance to another becomes subject to liability for bodily harm brought about solely by the internal operation of emotional disturbance. Under the rule stated in this Section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage. The difference is one between the negligent automobile driver who narrowly misses a woman and frightens her into a miscarriage, and the negligent driver who merely frightens her, without more.
b. The reasons for the distinction, as they usually have been stated by the courts, have been three. One is that emotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of the trivial, and so falls within the maxim that the law does not concern itself with trifles. It is likely to be so temporary, so evanescent, and so relatively harmless and unimportant, that thetask of compensating for it would unduly burden the courts and the defendants. The second is that in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all. The third is that where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good a purely mental disturbance.
c. The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law.
Illustration:
1. A negligently manufactures and places upon the market cottage cheese containing broken glass. B purchases a package of the cheese, and upon eating it finds her mouth full of glass. She is not cut or otherwise physically injured, and she succeeds in removing the glass without bodily harm; but she is frightened at the possibility that she may have swallowed some of the glass. Her fright results in nausea and nervousness lasting for one day, and in inability to sleep that night, but in no other harm. A is not liable to B.
REPORTERS NOTES: This Section has been added to the first Restatement.
The general rule is well settled. See for example Tuttle v. Meyer Dairy Products Co.,
75 Ohio L. Abs. 587, 138 N.E.2d 429 (App. 1956), from which Illustration 1 is taken.
Also Monteleone v. Cooperative Transit Co., 128 W. Va. 340, 36 S.E.2d 475 (1945),
28

headaches and nervousness following broken automobile windshield, where plaintiff received a slight nick "the size of a pimple"; Espinosa v. Beverly Hospital, 114 Cal.
App. 2d 232, 249 P.2d 843 (1952), emotional upset at being given the wrong baby by the hospital.
There are, however, some exceptional cases allowing recovery for emotional disturbance alone against a telegraph company which mishandles a message concerning death or illness. Seven states allow such recovery. Western Union Tel.
Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534 (1910). . . .
Four other states have statutes authorizing such recovery. . . .
On the other hand ten states deny the recovery. . . .
The only possible justification for a special rule in the case of telegraph companies appears to be the special responsibility to the public undertaken by the public utility.
The federal rule, which controls as to interstate messages, denies recovery for mental suffering without physical consequences. Western Union Tel. Co. v. Speight,
254 U.S. 17, 41 S. Ct. 11, 65 L. Ed. 104 (1920).
The majority rule is approved by the
Institute, not only because of the weight of authority, but because of the absurdity of making recovery turn upon whether the message crosses a state line.
29