Kennedy v. McKesson Co.

Callahan and Denman, JJ. (dissenting).

We vote to affirm Special Term. This case does not represent “another effort to extend existing principles of law *786so as to expand the liability of the negligent actor to include third parties who suffer shock as a result of direct injury to others” (Lafferty v Manhasset Med. Center Hosp., 54 NY2d 277, 279; Vaccaro v Squibb Corp., 52 NY2d 809; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Tobin v Grossman, 24 NY2d 609). On the contrary, plaintiff’s claim for damages stems solely and directly from the breach of a duty owed to him by one or more of these defendants. Under well-established principles of tort law, plaintiff may recover. While the majority acknowledge that a cause of action may be stated for emotional harm resulting directly from the negligence of another as long as the injury was genuine, substantial and proximately caused by the defendant’s conduct (Johnson v State of New York, 37 NY2d 378, 383-384; Battalla v State of New York, 10 NY2d 237), they fail to recognize how perfectly this case fits within that rule. Here, as in Johnson, the injury was inflicted directly upon the individual claiming the harm and the same individual to whom the duty was owed was the one directly injured by its breach. The fatal injury to plaintiff’s patient was the indirect and unintended spinoff of a breach of a duty owed directly to plaintiff by one or more of these defendants. Logic, as well as justice, compels affirmance as all proven harmful consequences proximately caused by the tortious act should be compensable. In our view, the cases relied upon by the majority are inapposite and plaintiff should be permitted to pursue recovery on his causes of action. (Appeals from order of Supreme Court, Onondaga County, Roy, J. — dismiss complaint.) Present — Simons, J. P., Callahan, Denman, Boomer and Moule, JJ.