“ZONE OF DANGER”

We have seen that in “wrongful death” actions, the generally applicable rule in New York is that emotional trauma caused family members by the loss of a loved one is not a permissible basis for a “cause of action” in a lawsuit.

Is there ever a time when the emotional impact upon a loved one can be the basis for a lawsuit by that loved one?

The answer is “YES”. When the loved one finds themselves within what is known as the “Zone of Danger”at the time a member of their immediate family was injured or killed…

To be eligible to bring a “zone of danger” lawsuit for the emotional trauma and psychological impact an immediate family member’s accident had upon you, it would be necessary to demonstrate not only that it was an immediate family member that was involved, but that:
—You were also in such proximity to the accident victim that you could well have been injured yourself;
—You were aware of the fact the immediate family member was being seriously injured or killed as the event was occurring;
— You have valid medical proof that you suffered a psychological injury as a result of that accident (psychological or psychiatric medical treatment).

Zone of Danger cases are relatively rare since the requirements to bring such a lawsuit are very stringent. There is a general perception that whereas physical injuries are usually subject to objective tests, psychological injuries might be more susceptible to fraud and so conditions are created that make the infliction of psychological injuries more plausible.

It takes an experienced Personal Injury Attorney to recognize the possible availability of a Zone of Danger case, and to properly analyze the circumstances surrounding an accident to appropriately apply the requirements to be successful in such a lawsuit.

WRONGFUL DEATH | CHILDREN AND INFANTS

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.

If a parent was at the scene of the accident, in what is known in legal parlance as the “zone of danger”, then the parent may possibly be entitled to separate damages for “emotional trauma” inflicted by witnessing the accident.

Both “punitive damages” and a “zone of danger” claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.