injury results from "'a breach of duty which "unreasonably (endangers) the plaintiff's physical safety.'" Wilson v. Consolidated Rail Corp., 810 F. Supp. 411, 416 (N.D.N.Y. 1993) (quoting Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146 (2d Dept. 1986), reh'g. denied, 815 F. Supp. 585 (N.D.N.Y. 1993). A prerequisite to recovering for a claim of emotional injury is the existence of a duty owed directly to the claimant by one from whom recovery is sought. Lahann v. Cravotta, 228 N.Y.S.2d 371, 372-3 (1962); see, Battalla v. State of New York, 10 N.Y.2d 237, 176 N.E.2d 729, 730, 219 N.Y.S.2d 34 (1961).
The gravamen of this claim is whether the plaintiffs can prove the defendant owed them a specific duty, rather than just a general duty to society. See, Johnson v. Jamaica Hospital, 62 N.Y.2d 523, 467 N.E.2d 502, 503, 478 N.Y.S.2d 838 (1984). As this Court contemplates the duty airlines owe non-passengers, it must take into account that New York law narrowly defines the scope of an alleged tortfeasor's duty in order to ensure that "'the legal consequences of wrongs [are limited] to a controllable degree.'" Waters v. New York City Housing, 69 N.Y.2d 225, 505 N.E.2d 922, 924, 513 N.Y.S.2d 356 (1987) (quoting Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969)).
Plaintiffs contend that Avianca owed them a direct duty to operate its aircraft in a manner which would not cause harm to non passengers or their property. Defendant contends that it did not owe a direct duty to the Tissenbaums as they were merely bystanders to this accident who unfortunately were in the vicinity of the accident site and witnessed the aftermath of the collision.
In the New York cases in which defendant owes a direct duty to plaintiff for the purposes of collecting purely emotional damages the parties share a relationship analogous to an implied contractual relationship. For example, an infant plaintiff recovered for purely emotional damages against a state-owned ski resort when a negligent employee placed the child in a chair lift without securing the child's safety belt and the child suffered emotional trauma. Battalla v. State of New York, 176 N.E.2d at 730. In that instance, there was an implied understanding between the parties that the State would ensure the chair lift was operated safely and that understanding provided the basis of the State's liability. Id. Parent plaintiffs were denied damages for purely emotional damages when there four and one-half (4 1/2) month old infant was kidnapped from the defendant hospital. Johnson v. Jamaica Hospital, 467 N.E.2d at 503-4. The court held the parents were not entitled to recover as the hospital's duty ran to the infant patient, the party with which the hospital had an implicit contractual relationship, and not to the parents. Id.
This Court views the Tissenbaums' situation as analogous to the parents in Jamaica Hospital, and not the infant plaintiff in Battalla. The Tissenbaums are similar to the parent plaintiffs in that they undoubtedly suffered emotional injury resulting from the tortious activity at issue, but they are not in the kind of implied contractual relationship required to recover for negligently inflicted emotional distress. Unlike the infant plaintiff in Battalla and the infant patient in Jamaica, the Tissenbaums never placed themselves in the care of Avianca prior to the accident. It is the passengers on the airplane who share the type of relationship necessary to recover emotional damages, not the people on the ground who had the unfortunate experience of being in the wrong place at the wrong time.
To support the proposition that passenger airlines owe a direct duty to non-passengers on the ground below the plane's flight path, plaintiffs cite Rehm v. United States, 196 F. Supp. 428 (E.D.N.Y. 1961). In that case, a plane operated by agents of the United States collided with an automobile driven by the plaintiffs, husband and wife, when the aircraft was forced to make an emergency landing on the Southern State Parkway. Id. at 429. During the course of the accident, plaintiffs witnessed the crash as it occurred, and suffered physical and emotional injuries. Id. at 430-31. The Court allowed the plaintiffs to recover for their physical and emotional harms. Id. at 431.
The Rehm case differs dramatically from the case at issue, as it was not a case for purely emotional damages. If the Tissenbaums had suffered physical and emotional injury, as the plaintiffs in Rehm did, there would be no question as to the viability of their tort claims against Avianca. Additionally, the plaintiffs in Rehm had a stronger case for recovery because they witnessed the accident as it occurred, while the Tissenbaum's injuries emanate from witnessing the aftermath of the collision. See Battalla 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (plaintiff's awareness of the possible harm and dangerous incident were simultaneous); see also Shanahan v. Orenstein, 52 A.D.2d 164, 383 N.Y.S.2d 327 (1st Dep't. 1976) (plaintiff was permitted to recover for negligently inflicted emotional injuries where she was a participant in the accident), appeal dismissed, 40 N.Y.2d 985, 359 N.E.2d 435, 390 N.Y.S.2d 927 (1976).
D. Outrageous Conduct
Additionally, plaintiffs set forth an infliction of emotional distress claim based on the outrageousness of the events in this case. To maintain such a claim there must be a genuine issue of fact as to whether defendant "who by extreme and outrageous conduct causes severe emotional distress to (plaintiff) is subject to liability for such emotional distress." Murphy v. American Home Products Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 90, 461 N.Y.S.2d 232 (1983), rev'd on other grounds, 136 A.D.2d 229, 527 N.Y.S.2d 1 (1st Dep't. 1988). Liability exists when "'the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as so atrocious, and utterly intolerable in a civilized community." Id. (citing Restatement of Torts, Second § 46(1), comment (d)). Avianca's actions with regards to this tragic accident do not rise to the level extreme and reckless conduct necessary to maintain a claim for emotional damages based on outrageous conduct.
This Court recognizes that Avianca owed its passengers and crew a direct duty to provide them with safe passage from Columbia to New York. This Court is not prepared to extend Avianca's direct duty to all the non-passengers it's planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to "virtually limitless . . . tort liability" and to create untold economic and social burdens. Bacon v. Mussaw, 167 A.D.2d 741, 563 N.Y.S.2d 854, 856 (3d Dep't. 1990).
III. Tort of Trespass
The tort of trespass is the intentional and unlawful invasion of another's land. To meet the intent requirement the tortfeasor "need not intend or expect the damaging consequences of his intrusion," rather he need only "intend the act which amounts to or produces the unlawful invasion, and the intrusion must be . . . the immediate or inevitable consequence of what . . . he does so negligently as to amount to wilfulness." Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249, 250 (1954).
Plaintiffs maintain that their complaint sets forth a prima facie case for the intentional tort of trespass: to wit, that the Avianca flight #052 crashed onto plaintiffs' property and that the crash was the result of defendant's knowing, reckless and willful misconduct in exhausting its fuel supply so as to inevitably result in a crash. Defendant's response is that no evidence was adduced that suggests Avianca acted with deliberate disregard for life and that the crew of Flight 052 intentionally grounded the plane into the plaintiff's property.
This Court holds that there is no genuine issue of fact to support a claim for the tort of intentional trespass as there is no evidence to prove the necessary intent to invade unlawfully. There was never a legal finding in this case that Avianca acted in a manner which rose to the level of wilful misconduct in the invasion of property or that the crew in this case, all of whom perished but one, voluntarily crashed the flight into the plaintiffs' yard. Rather, when the plane ran out of gas, after holding over the airport for hours, it became impossible for any human being to act voluntarily and control the aircraft and it unfortunately and accidentally crashed into the Tissenbaum's yard.
IV. Property Damage Claims
Plaintiffs contend that whether their property damages are measured by the cost to restore the property to its original condition or by the diminution in the market value of their property the $ 58,037.00 they received from Aetna did not compensate them adequately for the damage to their property.
Plaintiffs' total claim for property damage, supported by consultant's estimates for repair and restoration, was $ 152,926.00.
(Exh. 1, Affidavit of Blanca Rodriguez, Esq.) Alternatively, plaintiffs claim that if damages are measured by the diminution of the property value they were undercompensated because before the accident someone offered $ 725,000.00 to purchase their home and after the crash it sold for $ 575,000.00. Plaintiffs seek to recover from defendants either the difference between the amount paid by the insurer and the amount they claim is due them, or the difference in the pre and post accident amounts offered for the sale of their home. Additionally, plaintiffs seek to recover for the interference with their normal use and enjoyment of the property, which was not covered by their homeowner's policy.
Defendant contends the plaintiffs' claim for property damage should be dismissed because in June, 1990, plaintiffs recovered $ 58,037 from their insurer and then assigned their rights to Aetna to recover from Avianca for the monies paid to plaintiff from Aetna. Ultimately, Aetna and Avianca entered a settlement agreement for the monies paid from Aetna to the plaintiffs whereby Avianca paid Aetna $ 40,000 for the property damage and Aetna released Avianca in the settlement of its subrogated claims only.
The extent of an insurer's liability to the insured "does not delineate absolutely the extent of the legal liability of a tortfeasor to the insured." 6A JOHN ALAN APPLEMAN & JEAN APPLEMAN, INSURANCE LAW and PRACTICE § 4103 (1972). The fact that the insured plaintiffs assigned their rights to recover from Avianca for property damage to their insurance carrier does not affect plaintiffs' status as real parties in interest and therefore does not affect their ability to pursue a claim against the tortfeasor. CPLR § 1004
; Feeter v. Van Scott Bros., Inc., 74 Misc. 2d 388, 345 N.Y.S.2d 374, 375-76 (1973) (Where approximately 12% of fire loss was uninsured, insureds, who had executed a "loan receipt" (or subrogation receipt) in favor of the insurer in consideration of receipt of $ 43,500 under home owner's policy, could maintain claims against the tortfeasor in their own names, for the amount paid by the insurer and for their uninsured loss.).
To interpret the release given to Avianca by Aetna the Court is governed by the principles of contract law so that "'where the language of a release is clear, effect must be given to the intent of the parties as indicated by the language employed.'" Dury v. Dunadee, 52 A.D.2d 206, 383 N.Y.S.2d 748, 750 (4th Dep't. 1976) (quoting Matter of Schaefer, 18 N.Y.2d 314, 221 N.E.2d 538, 540, 274 N.Y.S.2d 869 (1966)). If the language of an instrument limits the release to certain claims, "then the release will be operative as to those matters only." Herman v. Malamed, 110 A.D.2d 575, 487 N.Y.S.2d 791, 793 (1985) (citing Lanni v. Smith, 89 A.D.2d 782, 453 N.Y.S.2d 497 (4th Dep't. 1982), appeal withdrawn, 65 N.Y.S.2d 925 (1985)).
The fact that plaintiffs recovered from Aetna and subrogated to Aetna the right to sue the tortfeasor for recovery of Aetna's insurance payment does not destroy plaintiffs' status as real parties in interest or preclude plaintiffs from bringing claims for uninsured losses against the tortfeasor. The release between Aetna and Avianca states that it is for the subrogated claims only and that it does not release Avianca from its responsibility for claims by the plaintiffs for personal injury and uninsured claims. This Court is bound to abide by the specific release language. In accordance with New York law, this Court holds that to the extent the plaintiffs are seeking recovery for uninsured repair and restoration expenses or diminution of property value together with interference with the quiet enjoyment of their land those claims are valid and defendant's motion for summary judgement is denied.
This Court sympathizes with the plaintiffs and believes they suffered emotional injury as a result of the tragic air disaster which ended up in their backyard. Nonetheless, summary judgment is granted in favor of the defendant on the issue of emotional damages as plaintiffs failed to establish the existence of an essential element of their case, specifically a direct duty running from the defendant airline to the plaintiffs. Additionally, this Court finds plaintiff, as a matter of law, may not maintain a claim of intentional trespass. Summary judgment is denied to the extent that the plaintiffs seek to bring claims against the tortfeasor to recover for uninsured losses which were never subrogated to Aetna.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
March 28, 1995