Court Develops Law Regarding Cross-Jurisdictional Tolling, Vicious Propensities and Zone of Danger

In its 2020-2021 term, the New York Court of Appeals leaped over bounds in developing various facets of case law, with great implications for the future of New York tort practice. In Chavez v. Occidental Chem., 35 N.Y.3d 492 (2020), the Court not only recognized cross-jurisdictional tolling of the statute of limitations for absent class members of a putative class action, but also ruled that a non-merits dismissal of class certification can cease such cross-jurisdictional tolling. In Hewitt v. Palmer Veterinary Clinic, P.C., 35 N.Y.3d 541 (2020), which stems from an attack by a dog in a veterinarian clinic waiting room, the Court found that the clinic, whose personnel possess specialized knowledge of animal behavior and treatment, did not need the notice required under the vicious propensities rule as a predicate for liability sounding in negligence. Finally, in Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513 (2021), after exploring the confluence of shifting societal norms and the roles of American family members in a case alleging liability for negligent infliction of emotional harm and the trends relating to the scope of such liability, the Court expanded the long-standing “immediate family” requirement of the “zone of danger” bystander rule to encompass grandparent-grandchild relationships.

‘Chavez’

Chavez arises from a series of individual lawsuits filed in 2012 in the U.S. District Court for the District of Delaware (which were consolidated in 2017 and transferred to the Southern District of New York) against defendant Occidental for injuries allegedly caused by the manufacture of a nematicide called dibromochloropane (DBCP). The Southern District of New York matter was intertwined with a 1993 putative class action filed in Texas state court, later removed to the Southern District of Texas, by plaintiffs from several countries against Occidental for the same injuries. In 1995, the Southern District of Texas conditionally granted Occidental’s motion to dismiss on the grounds of forum non conveniens but included a “return jurisdiction clause,” which allowed the class action plaintiffs to seek refiling in federal court if the alternate forum declined jurisdiction. Later that year, the Southern District of Texas entered a “Final Judgment,” dismissed the action, and enjoined the plaintiffs from pursuing other DBCP litigation. The plaintiffs, however, argued that the return jurisdiction clause in the court’s order kept their case pending on the Southern District of Texas’s docket.