Jorgenson v. B.F. Yenney Construction Co.

255 A.D.2d 1008, 679 N.Y.S.2d 775, 1998 N.Y. App. Div. LEXIS 12321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1998
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion and cross motions of defendants for summary judgment dismissing the complaint. Plaintiff was in her office inside a school district bus garage when an underground fuel tank exploded outside, killing one person and injuring five others. She commenced this personal injury action against defendants, who were responsible for the unearthing, cleaning and dismantling of the tank, seeking to recover damages for her emotional trauma. Even assuming, arguendo, that the explosion exposed plaintiff to an unreasonable risk of injury, we conclude that plaintiff has no cause of action for the emotional distress caused by observing the victims because the victims were not members of her immediate family (see, Trombetta v Conkling, 82 NY2d 549). Defendants established that plaintiff suffered no compensable injury, and plaintiff failed to present competent proof that she was injured by the explosion itself (cf., Battalia v State of New York, 10 NY2d 237). (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.