New Jersey Appellate Division Upholds Dismissal of Claim for Negligent Infliction of Emotional Distress on Grounds That Plaintiff Lacked Contemporaneous Perception of Accident
On September 7, 2010, the New Jersey Superior Court, Appellate Division, upheld the dismissal of a claim for negligent infliction of emotional distress, where the plaintiff lacked a contemporaneous sensory perception of the tragic death of his wife and infant daughter. Hinton v. Meyers, ___ N.J. Super. ___, No. A-5700-08T1, 2010 WL 3463301 (N.J. App. Div., Sep. 7, 2010).
The plaintiff, standing on the sidewalk adjoining Bloomfield Avenue in Verona, kissed his wife and infant daughter goodbye, and entered a nearby building. Mere moments later, his wife and daughter began to cross the street and were struck by a car. The plaintiff heard his daughter cry out, but apparently did not hear the accident itself. In the following minutes, while inside the building, plaintiff heard sirens, and twenty minutes after he entered, he left to check on his wife and daughter. Plaintiff saw his daughter’s stroller on the street, destroyed in the accident; she and his wife had already been transported to the hospital, where both were pronounced dead.
The plaintiff sued the driver of the vehicle that had struck his wife and daughter, and asserted a claim for negligent infliction of emotional distress (referred to in New Jersey as a Portee claim, after the seminal New Jersey Supreme Court case Portee v. Jaffee, 84 N.J. 88 (1980). Under Portee, to recover for negligent infliction of emotional distress, a plaintiff must establish four elements: (1) the death or serious physical injury of another caused by a defendant’s negligence; (2) a marital or familial relationship between the plaintiff and injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. See id. at 101.
Noting that the plaintiff lacked a contemporaneous perception of the accident, the Appellate Division affirmed the trial court’s grant of summary judgment, dismissing the plaintiff’s Portee claim. The Appellate Division distinguished several similar cases where Portee claims were upheld, including a products liability action where a father did not see his infant daughter injured, but ran into the kitchen upon hearing her screams, and saw steam coming from her body (Mansour v. Leviton Mfg. Co., Inc., 382 N.J. Super. 594 (App. Div. 2006)) and a case where a group of plaintiffs who had just escaped a house fire did not see a victim being burned alive, but heard the victim’s screams (Ortiz v. John D. Pittenger Builder, Inc., 382 N.J. Super. 552, 563 (Law Div. 2004)). Holding it was not necessary to a Portee claim that a plaintiff actually see the accident in question, the Appellate Division noted it was nonetheless necessary that the plaintiff have a “sensory, contemporaneous perception” of the injury.