"Whether a plaintiff was in the 'zone of danger,' ... may raise factual questions that must be resolved by a jury." Sullivan v. Ford Motor Co., No. 97-CV-0593, 2000 WL 343777 at *8, 2000 U.S. Dist. LEXIS 4114 at *24 (S.D.N.Y. Mar. 31, 2000) (citing Leverock v. Hall & Fuhs, Inc., 245 A.D.2d 550, 551, 666 N.Y.S.2d 729 (N.Y. App. Div. 1997) and Malstrom v. Mackey, 182 A.D.2d 1006, 1006-07, 583 N.Y.S.2d 28 (N.Y. App. Div. 1992)). "[D]rawing all reasonable inferences in the plaintiffs' favor[,]" Holmes, 568 F.3d at 335 (citation omitted), and noting that the zone of danger analysis is a factual matter better suited to later stages in the litigation when such facts have been more fully developed, the Court finds that Plaintiffs have plausibly pled Theresa Lalonde's presence in the zone of danger as to their negligent infliction of emotional distress claims.
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 โ assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death" ( Bovsun v. Sanperi, 61 N.Y.2d 219, 230-231). Here, there is no dispute that the plaintiff mother, Carol Kurth, witnessed the infliction of the injury ( see, Huffman v. Ellis, 208 A.D.2d 902) upon her daughter, an immediate family member ( see, Trombetta v. Conkling, 82 N.Y.2d 549). As the vehicle which ultimately struck the infant plaintiff was moving toward both the plaintiff mother and the daughter, and the mother was about eight feet from her daughter when impact occurred, there exists a material issue of fact as to whether the plaintiff mother was threatened with bodily harm by reason of being within the zone of danger ( see, Bovsun v. Sanperi, supra; Egan v. Pensek Truck Leasing Co., 228 A.D.2d 230; Malstrom v. Mackey, 182 A.D.2d 1006). Ritter, J. P., Thompson, Santucci and Joy, JJ., concur.
Further, if the accident did indeed occur outside a business or residence district it is within the province of the trier of fact to determine to what extent the truck imposed on Patrie's lane of travel and whether it was feasible for Sprague to have parked the track further off of the paved or mainly traveled portion of the highway (see, id., at 867). Finally, it is well settled that the trier of fact is normally entrusted to resolve factual disputes, to ascertain the reasonableness of the offending conduct under the circumstances and to determine whether that conduct was a proximate cause of the alleged injury (see, Vonungern v. MorrisCent. School, 240 A.D.2d 926; Malstrom v. Mackey, 182 A.D.2d 1006; cf., Rivera v. City of New York, 11 N.Y.2d 856). Because the location of the parked truck with respect to the driving lane is disputed, and Patrie's reaction is alleged to have been in response to seeing the truck's hazard lights, we cannot conclude as a matter of law that the manner in which Sprague parked the truck was not a proximate cause of the accident (see, Scott v. Keener, 186 A.D.2d 955). Accordingly, plaintiffs common-law negligence and Vehicle and Traffic Law ยง 1201 Veh. Traf. (a) claims against Sprague and UPS should not have been dismissed. Mercure, J.P., Peters, Carpinello and Graffeo, JJ., concur.
As previously noted, no account of the accident in this matter places Lucas Amidon in the path of the pickup truck that struck his father. Plaintiff relies most heavily on Malstrom v. Mackey, 182 AD2d 1006 (3 Dept 1992) where the 11 year old zone of danger plaintiff was following some 20 to 25 feet behind her 15 year old brother on the right shoulder of a two lane road. A car went past the 11 year old traveling in the same direction but then swerved and hit her brother.