NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS and ZONE OF DANGER

Coleson v City of New York 2014 NY Slip Op 08213

Justia Opinion Summary https://law.justia.com/cases/new-york/court-of-appeals/2014/191.html (February 22, 2019)

After Plaintiff, Jandy Coleson, applied for an order of protection from her husband, Samuel Coleson (Coleson), New York City police officers escorted Plaintiff to a safe house and assured Plaintiff that Coleson had been arrested and was going to be sentenced to prison “for a while.” Two days later, Coleson stabbed Plaintiff in the back. Plaintiff’s son witnessed Coleson chasing Plaintiff with the knife. Plaintiff, on behalf of herself and her son, commenced this negligence action against the City of New York and the NYPD (together, the City). Plaintiffs also alleged negligent infliction of emotional distress, arguing that the child was in the zone of danger during the incident. The Appellate Division affirmed Supreme Court’s grant of summary judgment for the City, concluding (1) Plaintiffs failed to establish that the City assumed an affirmative duty to protect Plaintiff from attacks by her husband; and (2) based on the lack of a special relationship, the claim’s claim for negligent infliction of emotional distress should also be dismissed. The Court of Appeals reversed, holding that the acts of the police officers in this case were sufficient to raise a triable issue of fact as to justifiable reliance.

Kennedy v. McKesson Co., 58 NY 2d 500 (1983)

https://scholar.google.com/scholar_case?case=408135221350835241&hl=en&as_sdt=6&as_vis=1&oi=scholarr

“A complaint which alleges that plaintiff, a dentist, delivered to defendants for repair an anesthetic machine he had purchased from them, that defendants were negligent in replacing the color-coded decals on the machine with the result that, intending to administer oxygen to a patient, plaintiff in fact administered nitrous oxide, causing the death of the patient, that as a result plaintiff’s mental condition was such that he was unable to carry on his professional work and because of the damage to his reputation was obliged to withdraw from practice states a valid cause of action permitting recovery by plaintiff for such pecuniary loss as may be proved but not permitting recovery for the emotional injury claimed to have resulted. The order of the Appellate Division (88 AD2d 785) should, therefore, be modified, with costs to the appellant, to reinstate so much of the complaint as seeks to recover damages for other than emotional injuries and, as so modified, affirmed.”

THE END OF IMMUNITY FOR CHARITABLE INSTITUTIONS/THE DOCTRINE OF RESPONDEAT SUPERIOR

Bing v. Thunig 2 N.Y.2d 656 (1957)

https://www.leagle.com/decision/19576582ny2d6561578 (February 24, 2019)

“The plaintiff, Isabel Bing, was severely burned during the course of an operation, performed at St. John’s Episcopal Hospital by her own physician, for correction of a fissure of the anus. She had been made ready for the operation, before the surgeon’s appearance, by the hospital anesthetist and by two nurses also in the employ of the hospital. Preparatory to administering spinal anesthesia, the anesthetist painted the lumbar region of the patient’s back with an alcoholic antiseptic, tincture of zephiran, an inflammable fluid, reddish in color. Again, after induction of the spinal anesthesia, one of the nurses applied the zephiran solution to the operative area. At that time there were three layers of sheeting under the patient.”

“The nurses were fully aware that the inflammable antiseptic employed was potentially dangerous. They acknowledged that they had been instructed, not only to exercise care to see that none of the fluid dropped on the linen, but to inspect it and remove any that had become stained or contaminated. However, they made no inspection, and the sheets originally placed under the patient remained on the table throughout the operation.”

“The surgeon was not in the operating room when the antiseptic was applied and at least 15 minutes elapsed before he initiated the preoperative draping process. The draping completed, the doctor took a heated electric cautery and touched it to the fissure to mark it before beginning the actual searing of the tissue. There was a “smell of very hot singed linen” and, “without waiting to see a flame or smoke”, he doused the area with water. Assured that the fire was out, he proceeded with the operation. Subsequent examination of the patient revealed severe burns on her body, later inspection of the linen, several holes burned through the sheet under her.”

“In the action thereafter brought against the hospital and the surgeon to recover for the injuries suffered, there was a verdict against both. As to the hospital, with whose liability we are alone concerned, the court charged that that defendant could be held liable only if plaintiff’s injuries occurred through the negligence of one of its employees while performing an “administrative,” as contrasted with a “medical,” act. Upon appeal, the Appellate Division by a closely divided vote reversed and dismissed the complaint. The majority of three, reasoning that the application of the antiseptic was in preparation for the operation and, therefore, part of the operation itself, concluded that the injury resulted from a “medical” act.”

“The doctrine of respondeat superior is grounded on firm principles of law and justice. Liability is the rule, immunity the exception. It is not too much to expect that those who serve and minister to members of the public should do so, as do all others, subject to that principle and within the obligation not to injure through carelessness. It is not alone good morals but sound law that individuals and organizations should be just before they are generous, and there is no reason why that should not apply to charitable hospitals. “Charity suffereth long and is kind, but in the common law it cannot be careless. When it is, it ceases to be kindness and becomes actionable wrongdoing.” (President & Directors of Georgetown Coll. v. Hughes, supra, 130 F.2d 810, 813.) Insistence upon respondeat superior and damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care.”

“The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of “hospital facilities” expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.”

“Hospitals should, in short, shoulder the responsibilities borne by everyone else. There is no reason to continue their exemption from the universal rule of respondeat superior. The test should be, for these institutions, whether charitable or profit-making, as it is for every other employer, was the person who committed the negligent injury-producing act one of its employees and, if he was, was he acting within the scope of his employment.”

Taggart v Costabile 2015 NY Slip Op 05464 Appellate Division, Second Department

https://law.justia.com/cases/new-york/appellate-division-second-department/2015/2012-09132.html

“Among the issues presented for our review on this appeal is whether the plaintiffs have stated a cause of action alleging negligent infliction of emotional distress. In order to evaluate this issue it is necessary to consider whether an allegation of extreme and outrageous conduct is an essential element of that cause of action. Although decisions of this Court have, on occasion, included language indicating that it is, we now clarify that extreme and outrageous conduct is not an essential element of a cause of action alleging negligent infliction of emotional distress.”

Zone of Danger

Bovsun v. Sanperi, 61 NY 2d 219 (1984)

https://www.newyorkinjurycasesblog.com/files/2014/11/Bovsun-v-Sanperi-Court-of-Appeals-1984.pdf

“Where a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries.”