A terrible tragedy occurred in Queens on Thursday evening which implicates both New York's "Zone of Danger" rule as well as illustrates New York's cruel and antiquated Wrongful Death laws. A 1-year old Queens girl named Skylar Perkins was in her stroller being pushed by her mother on Thursday night in Queens at 23rd Avenue and 94th Street in Queens at 8:42 p.m. According to a report by CBS New York, a white pickup truck from Massachusetts made a right hand turn striking the mother and her daughter. The little girl was pronounced dead and the mother taken to New York City Health and Hospitals/Elmhurst.
Witnesses report that the mother and her daughter were crossing within the crosswalk. The driver was charged with failure to yield to a pedestrian and failure to exercise due care according to another report by CBS New York.
This tragic and sad case would implicate New York's "Zone of danger" rule which allows a relative to potentially recover damages for witnessing an accident involving an immediate family member. This rule allows a person to recover for emotional distress from viewing the death or serious injury of an immediate family arising from the same incident.
The New Your Court of Appeals has set forth those requirements which must be satisfied for the Zone of Danger rule to apply in the case Bovson v. Sanperi, " We therefore hold that where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family — assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death." Thus, a plaintiff mus prove that he or she suffered a physical or emotional trauma as a consequence of having witnessed the accident. A plaintiff must also must show that he or she was immediately or simultaneously aware of the death or serious injury of an immediate family member. Finally, the injured or deceased person injured person must be an immediate family member (father, son, daughter, mother, brother, or sister) in order to have a Zone of Danger claim in New York.
Given the facts reported thus far, the mother would have a valid "Zone of Danger" claim under New York law for the tragic loss of her daughter.
This accident also underscores the draconian nature of New York's wrongful death laws which have not substantially changed in over 100 years. New York's wrongful death laws are pecuniary-based. This means that damages are calculated based upon what a deceased person was worth financially at the time of death. Infants, such as the one involved in this terrible accident, have limited "value" under New York's wrongful death laws because they are not earning any income or providing financial support to anyone. In addition, a parent is not entitled to be compensated for their own grief over the loss of their child, except in a situation involving a Zone of Danger claim. Although there have been many attempts to remedy this injustice, this remains the law in New York.
If you have lost an infant to wrongful death, you can turn to the attorneys at Queller, Fisher, Washor, Fuchs & Kool, L.L.P., for help. We work diligently to help parents hold negligent parties accountable for the death of their child. While we understand that money cannot bring your child back, we know that there is some measure of comfort in receiving justice for your child. You may also find solace in knowing that you may have prevented the same tragedy from happening to another family.
Our cases are taken on a contingency fee basis. If we accept your case, there is no fee unless we recover damages for you. For a free consultation with our New York personal injury attorneys, please call (212) 406-1700 or contact us online.