THE AUNT AND legal custodian of a boy killed by an airbag after a crash in her car can be considered an "immediate family member" for purposes of making a bystander's claim for negligent infliction of emotional distress, a Southern District judge has ruled.

U.S. District Judge Richard C. Casey made the ruling in Sullivan v. Ford Motor Company, 97 Civ. 0593, after saying he was faced with a lack of precedent about what constitutes "immediate family," under New York case law.

Judge Casey also said the ruling would not open up "sweeping liability" in similar cases.

In May 1996, Gertrude Sullivan was driving with her seven-year old nephew, Salim Sullivan, on 7th Ave and 135th Street in Manhattan, when her car was struck by another vehicle.

The collision triggered the air bags in Ms. Sullivan's car, but to her horror, the passenger-side air bag partially decapitated and killed young Salim.

Ms. Sullivan, who had cared for Salim since he was 12 months old and was granted legal custody of the boy when he was 4, sued the driver of the other car and Ford Motor Company alleging five causes of action. The final count was negligent infliction of emotional distress.

Ford moved for summary judgment, but was denied by the presiding judge at the time - then Southern District Judge Sonia Sotomayor.

Judge Sotomayor then asked both sides in the case to address a number of questions about who should be considered "immediate family" and what the legal rights of guardians are under New York law.

She allowed the defendants to renew their motion for summary judgment. The renewed motion was handled by Judge Casey.

Criteria Established

In 1984, Judge Casey said, the New York Court of Appeals recognized for the first time that under limited circumstances, a bystander may recover for emotional distress caused by witnessing the death or serious physical injury of a family member. That case was Bovsun v. Sanperi, 61 NY2d 219 (1984).

The Bovsun Court required that the observation of the injury be contemporaneous, that the observer be a member of the "immediate family," that the observer must also be in the same "zone of danger" that was caused by defendant's negligence, and finally, that the emotional disturbance they suffer must be "serious and verifiable."

Ford Motor Company, Judge Casey said, claimed that two of the elements outlined in Bovsun were not present in this case: Ms. Sullivan was not an "immediate family" member and she was not in the "zone of danger," because no threat was posed to her by the passenger side airbag.

Judge Casey disagreed on both counts.

First, in his view, the "zone of danger may have included the entire area surrounding the accident, or at least, the interior of Ms. Sullivan's vehicle." With experts on both sides disagreeing, he said the issue was one for the jury.

Close Relationship

Then Judge Casey said that "the court is not aware of any reported New York Court of Appeals or lower court decision that addresses the issue of whether two individuals bound by the relationship shared by Sullivan and Salim constitute 'immediate family,' for the purpose of a bystander claim of negligent infliction of emotional distress."

One case that was comparable, he said, was Trombetta v. Conkling, 82 NY 2d 549 (1993) where the New York Court of Appeals found the "immediate family" relationship did not exist in the case of a 37-year-old woman who witnessed a tractor-trailer run over her 59-year-old aunt.

"The facts of the case at bar," Judge Casey said, "demonstrate a much greater and markedly different daily commitment and dependence between Salim and Sullivan than under the facts of Trombetta."

"Here, Sullivan's nephew and legal charge was of tender years - he was 7 years old at the time of his death," he said. "She was the only family on which Salim had come to rely, and the only family with whom he shared his life on a daily basis from the time he was an infant of 12 months until his death."

No 'Sweeping Liability'

Judge Casey said his reading of the law would not "open the court to the potential of sweeping liability."

"The determination that Salim and Sullivan were immediate family members does not result in an open-ended, indefinite, complicated judicial analysis and assessment of emotional ties of an attenuated or embroidered nature," he said. "Additionally, this is not the type of case, presumably, that often will come before the courts. In the unfortunate circumstances when it does, the court is unconcerned about the risk of fraudulent or insincere claims and is confident that such risk is absent here."