One Sunday, plaintiff, then twenty-seven years of age, was returning home from church services with her two children, a daughter then, 3 1/2 years of age and son, then 2 1/2 years of age, accompanied by her mother, then 62 years of age. The group proceeded along Buhrem Avenue in Bronx County and came abreast of defendants’ one-story taxpayer building. At this point, the infant daughter walked ahead, necessitating her mother’s ‘catching up’ to ensure that she did not go near the street. On the top of defendant’s building was a brick parapet approximately seven feet in height and one hundred feet long. This parapet had been observed to be leaning outward toward the sidewalk for a period of at least six months prior to the accident. The falling of this parapet wall occasioned the accident.
A doctor said that, plaintiff testified that she turned around to see how far her mother and son were behind, and heard her son asking for a cookie. Her mother stopped and reached into her bag to get him a cookie. Then plaintiff turned back to her daughter and heard a loud roar. When she turned around, she saw bricks were falling and hit the side of her body. She ran over and saw her mother and son under the bricks. A bystander rushed to aid plaintiff and the fallen victims and through his intervention plaintiff was able to remove her son, who was moaning, from the debris. He took plaintiff and her son to the hospital. Plaintiff, holding her injured son on her lap in the back seat of the vehicle, had for the first time a chance to look at his body. She testified that ‘his legs were hanging off at the sides. He had a little sun suit on, so it was very clear to me what I saw. I went to push his legs back on but I was afraid they would fall off. And as I did so I grabbed his shoes and saw that his ankles were the same way his thighs were’. Plaintiff’s son died on the evening of the same day from cardiac arrest following surgery necessitated by the previous personal injuries he sustained. The personal injuries sustained by plaintiff’s mother were severe, including comminuted compound fractures of the legs, pelvis, and ribs, a severe avulsion laceration of the scalp, and a spinal cord trans-section at about the middle of her back which paralyzed her from that point down. She was conscious with some intermittent periods of unconsciousness, and underwent two operations not under anesthesia. Plaintiff’s mother died as a consequence of her spinal injuries on May 19, 1970.
A Lawyer said that, after trial the jury returned a verdict in favor of plaintiff’s son’s father as administrator of the deceased infant in the amount of $150,000 for wrongful death and $25,000 for conscious pain and suffering. The trial court reduced the award for wrongful death to $40,000 and for conscious pain and suffering to $5,000. The jury verdict in favor of plaintiff’s father, the surviving spouse o plaintiff’s mother, in his capacity as administrator of her estate in the amount of $75,000 for wrongful death and $25,000 for conscious pain and suffering was not disturbed.
Plaintiff in the fourth cause of action set forth in the complaint asserts that her son at the time of the accident was accompanied by members of his family and that she therefore was a witness to the accident and ‘suffered severe emotional and mental trauma and anxiety and grief, with residual physical effects, resulting solely from the negligence of the defendant.’ A Lawyer said that, at the trial’s inception, the corporate defendant for the first time moved to dismiss this cause of action on the authority of the 1969 Supreme Court decision. This motion was granted by the trial court. A Lawyer said that, plaintiff thereupon took exception and moved to amend her complaint by asserting a cause of action, similar to the previously pleaded fourth cause of action, but limiting damages to the emotional trauma sustained as a result of her own involvement in the accident, as distinguished from damages she suffered only because she saw a building fall on her son and mother. The trial court originally granted this application, but subsequently, reversed itself, viewing the amended claim as a ‘new cause of action’ which is barred by the statute of limitations.
The issue in this case is whether plaintiff is entitled to damages for the death of her son and mother.
The Court said that, study of the rationale set forth in the 1969 case, impels the conclusion that plaintiff may not recover merely because she was an eyewitness to the occurrence resulting in the deaths of her infant son and mother. Similarly, it does not stand for the proposition that she cannot recover because she was an observer of the accident. Beyond peradventure plaintiff was not only an observer of, but a participant in the occurrence. In analyzing the considerations which give rise to the rule enunciated in the 1969 case, the then Chief Judge, initially observed that as to the scope of duty to one who is not directly the victim of an accident causing severe physical injury to a third person, the problem is ‘whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety’. Plaintiff did not under the facts as narrated by her sustain injury solely as the result of the personal injuries directly inflicted on her son and mother, but sustained harm as a consequence of being within the zone of danger and responding to her natural instinct to rescue her child and mother during the course of the occurrence. The bricks were still falling, according to plaintiff, as she advanced to her infant son and her mother and she was struck by some of them. The circumstances herein are unique and fall without the ambit of the rule enunciated in the 1969 case. Being directly involved in the accident, said plaintiff’s claim does not create the problem of unlimited liability which engaged the attention of the then 1969 case court.
Viewing the allegations of the fourth cause of action asserted by plaintiff in the context of the type of accident occurring, namely, the collapse of an entire parapet wall with consequent raining of hundreds of bricks into the street below, the defendants could not reasonably construe the averment that plaintiff ‘was a witness to the aforesaid occurrence’ in a narrow sense. It was clearly averred that the infant decedent was accompanied by members of his family at the time of the occurrence. On a motion to dismiss for failure to state a cause of action, the pleading must be liberally construed and every fair intendment given to the allegations contained therein. Thus viewed, the complaint served to put defendant on notice that plaintiff’s status as a witness may well have been imparted because of her status as a participant in the occurrence. Under these circumstances, plaintiff should not be penalized for failing to specifically assert a claim for recovery based upon physical contact with the falling bricks. Despite the information given in the bill of particulars relating to plaintiff’s physical ailments and confinement as consequence of the severe emotional and mental trauma suffered, defendant awaited the eve of trial with the apparent expectation that through a statute utilization of the 1969 case, it could effectively non-suit this plaintiff.
Confronted with the trial court’s rulings striking the fourth cause of action and refusing to allow amendment of said cause, plaintiff’s counsel made an offer of proof not in the jury’s presence to the effect that plaintiff, since the events of May 10, 1970, was on a prescription of tranquilizers, distraught, disoriented, constantly apprehensive of things falling upon her from the sky; that she walked on the curb line of sidewalks, and finally that she compelled her husband to reconstruct their own home although there was nothing wrong with the brickwork. Further, an offer of proof was made to the effect that the physician treating plaintiff for her emotional trauma would have testified that the accident of May 10, 1970 was the competent producing cause of her emotional and psychological traumas and fears. Parenthetically, it is noted that the plaintiff’s counsel in his brief asserts that defendant Buhre Avenue Co. Inc.’s counsel received the doctor’s report prior to filing of the note of issue but that said defendant opted not to conduct any examination before trial of plaintiff and decided to forgo a physical examination of her as well.
At this point it should be remembered that the 1969 case enunciated a policy determination with respect to substantive law, to wit, that ‘no cause of action lies for unintended harm sustained by one, Solely as a result of personal 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’. The zone of danger rule was regarded as ‘quite relevant’ to the problem of allowing recovery to an eyewitness. Peculiarly, although the 1969 case was decided on the pleading alone, which pleading alleged psychic injury from the fact that a mother witnessed an accident to her child, the Court of Appeals in Brooklyn was cognizant of the fact as developed in an examination before trial that the mother involved did not in fact witness the accident. Patently, the harm to plaintiff was direct. The corporate defendant cannot reasonably claim surprise or that, it was misled. Essential justice mandates affording this litigant her day in court.
Accordingly, the judgment of the Supreme Court, Bronx County, should be modified to the extent of reversing, on the law, the dismissal of the cause of action of plaintiff, said cause of action should be reinstated and a new trial granted thereon, without costs and without disbursements; further, the judgment should be modified, on the law and the facts, so as to grant a new trial to defendants-appellant as against plaintiff’s father, as administrator of the estate of plaintiff’s deceased mother, solely on the issue of damages with respect to the wrongful death claim of said administrator, unless he, within 20 days of service upon him by the defendants-appellants of a copy of the order entered herein, with notice of entry, serves and files in the Office of the Clerk of the Supreme Court, Bronx County, a written stipulation consenting to reduce the verdict in his favor on the wrongful death claims to $60,000 and to the entry of an amended judgment in accordance therewith.