In late July of 2023, Marcy Olin witnessed a crane collapse. Around her, people panicked. Falling debris struck her vehicle.[i] Miraculously, Ms. Olin was unharmed. She decided to sue for emotional distress and negligence. Her husband joined in as well, seeking damages for loss of consortium – all from a near miss with some falling debris![ii]
Previous Cases Sustained Similar Claims
Near misses from crane accidents are not a new issue in this jurisdiction. In 2010, the appellate division in the first department denied summary judgment for claims of emotional distress in a case where a similar crane collapse did not directly injure the plaintiff. [iii] In this jurisdiction, negligent infliction of emotional distress does not require a physical injury, only that a building owner or general contractor either unreasonably endangers the plaintiff’s physical safety or causes the plaintiff to fear for their safety.[iv] Likewise, demonstrating damages for emotional trauma likewise does not require a physical injury, but evidence must be produced to guarantee the genuineness of the emotional trauma.[v] In the 2010 case, failure to have competent inspectors showed the contractor’s conduct was extreme and outrageous enough to permit denial of summary judgment. But just this year, the appellate division ruled a defendant’s conduct does not need to be extreme and outrageous for a valid claim of negligent infliction of emotional distress.[vi] The court is likely to take a similar view in Ms. Olin’s case, denying summary judgment even if defendant can demonstrate an inspection regime consistent with industry practices.
Crane cases like these present substantial risks to construction sites in New York and Bronx Counties, as the range of potential plaintiffs expands to include bystanders and their spouses who suffer a “near miss.” With courts abandoning showings of physical injury or gross negligence to sustain a claim, cases such as these are likely to turn on the reasonableness of a plaintiff’s fear for their physical safety, as well as medical evidence showing indicia of emotional distress. Court watchers should follow these trends in the Olin case to see whether these types of evidentiary issues will become limiting principles for crane collapse cases that do not allege physical injuries.
[i] Emily Saul, First Civil Action Filed in Wake of Manhattan Crane Collapse, Seeks Damages for Emotional Distress, Law.com (Aug 3, 2023), https://www.law.com/newyorklawjournal/2023/08/03/first-civil-action-filed-in-wake-of-manhattan-crane-collapse-seeks-damages-for-emotional-distress/.
[iii] Bernstein v. East 51 Street Development Co., LLC., 78 AD.3d 590 (1st Dept. 2010).
[iv] Id. at 591
[v] Brown v. New York Design Center Inc., 185 N.Y.S.3d 97, 100 (1st Dept. 2023)
[vi] Id. At 102