Trombetta v. Conkling
82 N.Y.2d 549 (1993)
New York Court of Appeals
Plaintiff-appellant's case poses a significant tort duty question for this Court.
We must decide
whether plaintiff, the niece of a woman who was killed in an accident in plaintiff's presence and with whom
plaintiff shared a long and strong emotional bond, may qualify to bring suit as a bystander for the
negligent infliction of emotional injuries under the
Bovsun v. Sanperi
(61 N.Y.2d 219) "zone of danger"
If we were to conclude, as Supreme Court did, that plaintiff can be deemed a member of the victim's
"immediate family," her cause of action lies.
We agree with the Appellate Division's reversal of Supreme
Court and the dismissal of the complaint and, accordingly, we affirm the Appellate Division order.
On November 10, 1989, plaintiff Darlene Trombetta and her aunt, Phyllis Fisher, were crossing
Wurz Avenue in Utica.
Plaintiff noticed a tractor-trailer bearing down on them.
Realizing that the truck
was not going to stop, plaintiff grabbed her aunt's hand in an attempt to pull her out of the truck's path.
The effort failed.
Plaintiff, who was not physically touched or injured, watched as the wheels of the truck
ran over her aunt, killing her instantly.
Plaintiff commenced this action against defendants Fred J. Conkling and Universal Waste, Inc.,
the driver and the owner of the vehicle, respectively, asserting only a claim for negligent infliction of
At an examination before trial, plaintiff testified that she and her aunt shared a close
Allegedly, plaintiff's mother had died when plaintiff was 11, and her aunt became the
maternal figure in her life.
They always lived close by and enjoyed many activities together on a daily
At the time of the accident, plaintiff was 37 and her aunt was 59.
After discovery, defendants moved to dismiss the complaint and for summary judgment.
Bovsun v. Sanperi
explicitly left open the issue of "where lie the outer limits of 'the immediate family,'"
Supreme Court denied defendants' motion and held that the intimate familial relationship in this case was
sufficient to state a cause of action.
The Appellate Division reversed and dismissed the complaint, confining the class of potential