Kinsler v. International House of Pancakes, Inc.
8 Misc. 3d 836 (2005)
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Rule of Law:
A bystander who is present for, and suffers a contemporaneous physical injury as a result of, an intentional tort directed at a third party may have a valid cause of action against the tortfeasor under the doctrine of transferred intent.
Facts:
- On January 26, 1999, Judith Kinsler and her minor daughter, Ashley Kinsler, were at a restaurant owned by the defendants.
- When Judith Kinsler went to pay for her meal, the restaurant manager, Reyes Coreas, stopped her.
- Coreas accused Judith Kinsler of passing counterfeit money and being a thief.
- Coreas also called Judith Kinsler a crook and a lowlife.
- As a direct result of witnessing this incident, Ashley Kinsler became emotionally distressed and suffered an asthma attack.
- Ashley Kinsler's asthma attack required subsequent medical attention.
Procedural Posture:
- Judith Kinsler and Ashley Kinsler (plaintiffs) filed a complaint against the restaurant owners (defendants) in a New York trial court.
- The complaint included causes of action for slander and intentional infliction of emotional distress for Judith Kinsler, and for emotional distress and physical injury for Ashley Kinsler.
- Defendants filed a motion for summary judgment, asking the court to dismiss the entire complaint.
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Issue:
Does a bystander who suffers a contemporaneous physical injury as a result of emotional distress from witnessing an intentional tort (slander) directed at a third party have a valid cause of action?
Opinions:
Majority - Markey, J.
Yes. A bystander who suffers a physical injury as a result of witnessing an intentional tort directed at another can maintain a cause of action. The court distinguished this case from those involving negligent conduct, where bystander recovery for emotional distress is generally barred. Here, an intentional tort (slander) is involved, the bystander (Ashley Kinsler) was present when it occurred, and she suffered a direct physical injury (an asthma attack), not just emotional distress. The court reasoned that the presence of a contemporaneous physical harm mitigates the danger of fraudulent claims for purely emotional injuries. Furthermore, the court applied the doctrine of transferred intent to defamation, holding that the intent to harm Judith Kinsler could be 'transferred' to her daughter, who suffered a physical consequence. The court also held that the mother's claim for slander could proceed because accusing someone of being a 'thief' in conjunction with passing counterfeit money constitutes slander per se, which does not require proof of special damages. However, the court dismissed the mother's separate claim for intentional infliction of emotional distress as duplicative, since damages for emotional suffering are recoverable under the slander claim.
Analysis:
This decision significantly expands tort liability in New York by applying the doctrine of transferred intent to defamation and allowing recovery for a bystander. It carves out a notable exception to the traditional rule limiting recovery for bystanders, which typically applies in negligence cases (the 'zone of danger' rule). The key elements for this exception are the intentional nature of the underlying tort and the bystander's manifestation of a physical injury, rather than purely emotional distress. This ruling provides a new avenue for recovery for third parties who suffer tangible, physical harm from witnessing intentional misconduct, potentially impacting future cases involving verbal torts and domestic disputes witnessed by family members.
