This is an action by plaintiff to recover damages for post-traumatic stress disorder and other emotional damages. The court has before it defendant Consolidated Edison Co. of New York Inc.'s ("Con Ed") motion for summary judgment dismissing the complaint. Plaintiff is opposed. Since issue has been joined and this motion was timely brought after the note of issue was filed, it will be considered and decided on the merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).

Legal Standard Applicable to a Motion for Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

When issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. See Hindes v. Weisz, 303 AD2d 459 (2d. Dept. 2003).

Claims made and the arguments presented

The facts of this case are not in dispute and both sides primarily rely upon plaintiff's deposition testimony. Defendant's motion presents a question of law, to wit: whether plaintiff, who contends she sustained a mild electrical shock when she came to the rescue of a stranger, has stated a viable cause of action for the negligent infliction of emotional distress, even though she has no lasting physical injuries.

On January 16, 2004, Jodie Lane, a non-party, was walking with her two dogs when she stepped on a metal grate in the street and was electrocuted. Ms. Lane died from her injuries immediately thereafter. According to plaintiff, the accident was caused by an improperly maintained underground service box owned, etc., by Con Ed. A live wire from that box came in [*2]contact with the metal plate directly above, fatally injuring Ms. Lane. January 16, 2004 was a snowy day and there was slush (water) on the ground in the area of the accident and surrounding Ms. Lane.

Plaintiff, a passerby, heard Ms. Lane's screams, saw her hands in the air, and heard the woman's dogs howling. Although a crowd had formed, no one approached Ms. Lane, but kept their distance. Plaintiff rushed to help Ms. Lane who had by then fallen to her knees on the plate in the slush. Plaintiff testified that while she had her arms wrapped around the dying woman, she felt a "trembling" and "tingling" throughout her own body:

"I felt it all - - as it progressed, I felt it from the beginning to when it appeared that she died in my arms because it started in my legs and it started getting stronger and up, up my leg. And I did not know - - I don't know if it was coming from her body, from the ground. I felt it very strongly. Then it was in my right arm, which was wrapped around her when I was holding her, then I was really, really scared. And then I knew it was the electrical current because people were screaming to leave her and I would not. And they sensed it was coming from the ground and the curb when they were standing on it . . ."

Plaintiff testified that an officer who stood some distance away shouted to her, asking whether she was "feeling the electricity through your body?" and that she answered "Yes, I am . . ." Whereupon the officer then reportedly ordered plaintiff to get away from the victim immediately and to leave the area. One of Ms. Lane's dogs that had been tied to a meter near her was still howling. Plaintiff testified the dog looked like it was still being shocked and that she noticed someone was trying to drag the dog away from that spot.

It is undisputed that plaintiff did not seek medical treatment at the scene. She was not burned or bruised in any way. Later that same day, plaintiff walked over to the hospital where Ms. Lane had been taken by ambulance. She talked to a detective there and gave him with information about where the victim's dogs had been taken. Plaintiff testified that she asked him whether he thought she should get medical attention. Reportedly, the detective told her "no," but commented that she was "lucky to be standing here."

A few days later, on January 21, 2004, plaintiff went the emergency room (same hospital), complaining of a panic attack. After being examined, she was referred to Dr. Kreditor, a psychiatrist, who treated her for post traumatic stress disorder. She is still in treatment with this doctor. Dr. Kreditor has provided his sworn affirmation in opposition to defendant's motion and also prepared a written report. He opines that plaintiff suffers from post traumatic stress disorder, directly linked to her personal involvement with the accident, including having been herself exposed to the current. He also states that although plaintiff had some pre-existing mood and anxiety symptoms, her present condition and symptoms are consistent with a traumatic event.

Defendant contends that plaintiff may not recover damages for the emotional distress she claims to have been caused by having witnessed Ms. Lane's accident because she was not a member of plaintiff's family. Defendant argues that because plaintiff herself was not in any physical danger when she went to help Ms. Lane, and she has suffered no lasting physical injuries, like burns, numbness, or tingling, only emotional trauma, her case must be dismissed, as a matter of law. Defendant claims further that it had no duty to protect plaintiff, a bystander, [*3]because she was not in any danger, but only observed it.

Plaintiff opposes the motion, arguing that she was in personal danger when she went to help Ms. Lane. She claims that she was mildly electrocuted when an electrical current coursed through the dying woman's body or through the ground directly beneath them. She argues that although she did not sustain a lasting physical injury, in the usual sense, she was in danger or feared for her personal safety when she was holding the victim in the area of the metal plate. Plaintiff contends that she was exposed to a dangerous condition because of Con Ed's negligence, therefore she has a viable claim for the negligent infliction of emotional distress.

Discussion

There is no duty to protect a bystander from emotional injury if the defendant does not otherwise owe that person a duty of care, and even where a duty is owed, that person's injuries are compensable only when they are a direct, rather than a consequential, result of that breach of duty. Kennedy v. McKesson Co., 58 NY2d 500 (1983). Therefore, a plaintiff asserting a claim for the negligent infliction of emotional distress must establish that the defendant owed a duty to her, that it was breached, and that the breach of the duty owed exposed her to an unreasonable risk of bodily injury or death. Bovsun v. Sanperi, 61 NY2d 219, 223 (1984).

Although defense makes much of the fact that Ms. Lane and the plaintiff are not family members, plaintiff cannot (and is not seeking to) recover for the emotional injuries she claims to have sustained when she came to Ms. Lane's rescue on the day of the accident. Bovsun v. Sanperi, supra at 223. It is well established in New York's jurisprudence that a bystander generally will not recover damages for negligent infliction of emotional distress against a defendant who breached their duty to a third party, unless the plaintiff and the victim have a familial relationship. Bovsun v. Sanperi, supra. This legal principal, commonly known as the "zone of danger" rule, applies even where there is a close bond or relationship between the plaintiff and the victim, such as being friends or co-workers. Casale v. Unipunch, Inc., 177 AD2d 1029 (4th Dept 1991) (plaintiff, in the zone of danger, observed his friend and co-worker be electrocuted and killed).

Plaintiff's claim is that she was not a bystander, but that she was personally in actual physical danger or feared for her life when she rushed to help Ms. Lane. Plaintiff contends that the events were such that she actually sustained a mild shock and that she was only spared a permanent injury because she was wearing rubber soles and other insulating clothing. She contends that the dramatic and traumatic events of that day, including her putting herself in physical danger, have left her emotionally damaged, even though she has no lasting physical injuries, like burns or neurological damage.

A cause of action for negligent infliction of emotional distress does not require a physical injury, but recovery for purely emotional damages is extremely limited. Ornstein v. New York City Health and Hospitals Corp., 27 AD3d 180 (1st Dept. 2006) [citing: Kennedy v. McKesson Co., 58 NY2d 500 (1983); Creed v. United Hosp., 190 AD2d 489, 491 (1993)]; Sheila C. v. Povich, 11 AD3d 120 (1st Dept. 2004); Savva v. Longo, 8 AD3d 551 (2nd Dept 2004); EB v. Liberation Pub., 7 AD3d 566, 567 (2nd Dept 2004); Johnson v. New York City Bd. of Educ., 270 AD2d 310 (2nd Dept 2000); See, also: JR v. DC, 12 Misc 3d 1173(A) (Supreme Ct., NY Co., 2006) (and cases cited therein). Such a claim "generally must be premised upon the breach of a duty owed to plaintiff which either unreasonably endangers the plaintiff's physical safety, or [*4]causes the plaintiff to fear for his or her own safety." Ornstein v. New York City Health and Hospitals Corp., supra at 183 (citing Sheila C. v. Povich, supra; Bovsun v. Sanperi, supra). In some cases, however, a plaintiff will state a viable claim for damages even without if s/he did not fear for her own physical safety, if the other elements of duty and breach of duty with direct emotional harm are present. Perry-Rogers v. Obasaju, 282 AD2d 231 (1st Dept. 2001) (fetus implanted in wrong womb; emotional damages, but no fear).

Defendant, as the moving party seeking summary judgment, must prove that the plaintiff was not in danger when she went to help Ms. Lane. Plaintiff was not a bystander, but leaped into action and put herself into the very epicenter of an unfolding crisis. The current was still on, there was no Con Ed emergency crew on site, no rescue personnel had arrived yet on the scene, and people were frantically trying to call the police for help on cell phones. Plaintiff has testified, and it is unrefuted that, a crowd of 40 to 50 people stopped to watch helplessly as the stricken woman screamed for help. At that point Ms. Lane was still on the electrified metal plate. Plaintiff has testified that people were afraid to approach Ms. Lane, because they did not know what to do, and were afraid to get hurt themselves because there was slushy snow (water) on the ground.

Defendant has failed to disprove plaintiff's claim that at the moment she went to help Ms. Lane she was in danger. Put differently, defendant has not proved that when plaintiff went to rescue Ms. Lane she was safe and had no reason to believe she was in actual physical danger, as she has testified. Ornstein v. New York City Health and Hospitals Corp., supra. Plaintiff has provided her psychiatrist's sworn statement and her own testimony which together are a "guarantee of genuineness" of her claims, and present issues of fact for trial. See: Johnson v. State, 37 NY2d 378, 383 (1975).

The court has also considered Con Ed's further legal argument that it owed no duty to plaintiff because she was simply a bystander who decided to leap into a dangerous situation. It is black letter law in New York state that "danger invites rescue." Therefore, a defendant owes a duty of care towards a potential rescuer where that defendant placed someone in peril, inviting the rescuing plaintiff, to aid the person imperiled. Provenzo v. Sam, 23 NY2d 256, 260 (1968); Villoch v. Lindgren, 269 AD2d 271 (1st Dept. 2000). The disputed issue of whether defendant breached that duty, and therefore was negligent, is for the jury to decide.

Though plaintiff made a number of statements at her deposition about what others said to her or told her the day of the accident or at the hospital, this inadmissible hearsay has not been considered, and did not form the basis for the court's decision denying defendant's motion for summary judgment. Rather, defendant has failed to meet its burden of proving its entitlement to summary judgment, as a matter of law or to eliminate any factual disputes from the case. Remaining arguments by Con Ed about plaintiff's psychiatric history would not lead the court to a different decision, but go to whether plaintiff can prove damages at trial.

Since plaintiff's claims for negligent infliction of emotional distress, while not based upon a lasting physical injury, are nonetheless rooted in genuine claims that defendant's negligence endangered her physical safety, or caused her to fear for it, defendant's motion for summary judgment is denied.

Conclusion

It is hereby [*5]

Ordered that defendant's motion for summary judgment, dismissing the complaint is denied for the reasons set forth in the foregoing decision; and it is further

Ordered that plaintiff shall serve a copy of this decision and order on the clerk in the Trial Support Office, 60 Centre Street, so that this case may be scheduled for trial; and it is further

Ordered that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further

Ordered this constitutes the decision and order of the Court

Dated:New York, New YorkSo Ordered:

August 14, 2007

_______________________

Hon. Judith J. Gische, J.S.C.