Today as I was getting my morning coffee, I glanced at the NY Post headline that read “Trauma Queens” over a picture of two twenty-somethings who had filed a lawsuit over the East Village explosion that occurred on March 26th. The article stated that the young women had filed lawsuits seeking $20 Million apiece over fear and anxiety they faced after the blast. This is the type of thing that drives me nuts and brings a bad name to lawyers and twenty-somethings. It’s the kind of thing that made me actually have to buy the NY Post, though I quickly buried it in my brown paper bag with my bagel lest my neighbors should see me with it. UPDATE: After the publication of this post, I was contacted by both women who wanted to tell their side of the story. Both women adamantly deny making some of the quotes attributable to them in the NY Post article and instead ask readers to look at the interviews they gave to the press before the lawsuit was filed. Ms. Ramotowska and Ms. Bauermeister state that they did not see the lawsuit before it was filed and therefore did not know its contents. They state that if they were like they were portrayed they would have been making similar remarks on Good Day NY etc. That argument does make sense as the women portrayed in the article and lawsuit seem like people who would be more than glad to make those same claims on TV. Updates to the article made after my conversation with the women are in italics.
The article describes that Lucie Bauermeister and Anna Ramotowska were subletting an apartment together two buildings down from where the blast occurred. That day and right after the two women appeared on a few media outlets describing the blast and how they escaped with their Pomerian and purses. Per their quotes in the NY Post, Ramotowska had a few scratches on the back of her hand for which she received no medical treatment and Bauermeister suffered no physical injuries at all. That didn’t stop their lawyer Robert Vilensky from suing for a total of $40 Million alleging the girls are permanently traumatized.
But “negligent infliction of emotional distress” under New York law, can only be established in one of two ways: (1) the “bystander” theory; or (2) the “direct duty theory.”
Direct Duty Theory:
The defendant breached a duty of care to the plaintiff;
The defendant (a) unreasonably endangered the plaintiff’s physical safety or (b) caused the plaintiff to fear for his or her safety;
The defendant’s conduct was extreme and outrageous; and
The plaintiff suffered extreme emotional distress.
Bystander/Zone of Danger Theory:
The defendant unreasonably exposed the plaintiff and an immediate family member to physical harm;
The plaintiff witnessed the serious injury or death of the family member;
The plaintiff suffered emotional harm; and
The defendant’s conduct was a substantial factor in causing the injury or death of the family member.
The bystander theory does not apply here, so the besties will have to go under the direct duty theory.
Three problems with that (1) NY requires some physical harm to go along with the emotional distress – otherwise the court s would be flooded with NYers stressed out over the things that “almost happen to them” on a daily basis. Bauermeister has already stated that she suffered no physical harm, the other had a few surface scratches on the back of her hand; (2) the defendant’s conduct must be extreme or outrageous. As bad as illegally and negligently tapping a gas line may be, it is just plain ordinary negligence, it ain’t that extreme or outrageous; (3) the distress suffered must be extreme. Here, the girls are already posting that they love being “local celebs” on Good Day NY – adding that its “Cool to be on TV but bummer my house burned down.” Only their house didn’t burn down, they were back in the apartment two days later and the Post reports that the building suffered “minimal damage.” How extreme can their distress be when one of them hasn’t even seen a shrink yet. The other Bauermesiter, has seen a psychologist, but her claims of emotional trauma will likely be hurt by her lack of injuries.
That’s the main claim they are making – that they are now forced to leave the City due to the extreme trauma they faced on Second Avenue. But it appears from her FB page that Bauermeister was planning a move to the South well before her experience. And she stated in the article that she just prefers the the South “The whole experience has really rocked me, and also the cold is not so great.” Not a ringing testament for your lawsuit, Lucie. Similarly, Ms. Ramotowska stated, “Because of everything that happened I feel like I don’t have a home. I don’t feel comfortable. I just have anxiety in all honesty. I feel like I need to get out and clear my mind. My parents just moved to Florida so I’m going to go down there and be a beach baby basically.” Oh, and she was doing so well before that last sentence. That’s not something someone who is severely emotionally traumatized would say. UPDATE: Here it seems that if Bauermeister was really after a pot of gold, she would not have made these comments to the media about the cold.She told me that she was talking generally about her experience in NY having only been here a few months and that this incident was clearly giving her second thoughts about living here,as opposed to Georgia where her boyfriend lives. Ms. Ramotowska vehemently stated that she never made the “beach baby” comment.
So if this is such a garbage case, why would a seasoned and experienced lawyer like Robert Vilensky take the case? I’d say it smacks of ambulance chasing, except that here there was no ambulance to chase since there was no injury. Likely he is looking for a quick splash in the media and that might help him get other clients who may actually have suffered injuries in the explosion and subsequent collapse of the building.It generates a news article with his name in it which will pop up on Internet searches and which will be linked onto his firm’s website. It shows that his firm gets involved in newsworthy cases. But I wish he had resisted the temptation. I wish he had told these two women that this type of lawsuit cheapens the system; makes a mockery of those who suffered true harm in the explosion; that when they get bored of going to the psychologist to establish “trauma” they will have no damages; that the court is highly likely to throw this case out after all the discovery is done; that while he is certain that they could find some starving or desperate lawyer to take on their case, he has too much integrity and too many bigger fish to fry with real cases involving real people who suffered real damages and need access to the court system; that if they are truly traumatized, let’s see how long that lasts and how long they remain in treatment and what the reports say before rushing off to be the “first to file” over this tragedy which don’t forget took the lives of two innocent people. I wish he had answered the call of his better self.
But sadly, he did not. Instead he filed this $40 Million case which is worth in my opinion a few thousand dollars on a good day – just to avoid the costs of making the dismissal motions. The NY Post’s motto “Just a Buck” emblazoned on the front page takes on a whole new meaning with this lawsuit. To add insult to injury, even though the incident occurred in Manhattan and the two plaintiffs live in Manhattan, he filed it in the Bronx which plaintiff’s attorneys see as the Land of Milk and Honey and Big Verdicts. But I have to tell you, having litigated an awful lot in The Bronx, Bronx jurors will not like this case. One of the reasons Bronx jurors do tend to award more money to injured plaintiffs is that they can empathize with being mistreated: they know better than anyone else what it is to suffer pain; they know what it is to not receive proper medical treatment or any attention from your landlord; they understand firsthand what it means to be wronged and how you can be harmed by neglect and abuse. They suffer indignities and neglect every day of their lives. Does Vilensky really think they will sympathize with these two? I’m telling you, Bronx jurors do not like BS and they love catching someone trying to BS them – I have found that if you can prove that the plaintiffs are trying to put one over on them, they will throw you out of that courthouse faster than you can imagine. If a judge doesn’t dismiss this case, then these two plaintiffs are still likely to get put out in the street by NYC one more time.
UPDATE: Both plaintiffs deny seeing the lawsuit and/or agreeing to its claims before it was filed. Both tell me that they sought legal counsel to help them with the damages they truly suffered – being dispossessed of their apartment and losing the majority of their valuables to smoke and water damage. They were definitely traumatized by the incident, they state, especially since both are not native New Yorkers and do not have family in the area. But they feel they were grossly misrepresented by the NY Post and both deny that they are seeking $40 Million or that they were even aware that these claims were being made on their behalf. In the meantime, they have been vilified all over social media and had to suspend their FB and Instagram accounts due to the rash of hurtful comments posted there. I strongly advised the women to speak to their lawyer to file an amended complaint that they approve of and to issue a press statement to correct the inaccuracies of the Post article. After that is done, I suggest going back onto Good Day NY to set the story straight.