Portee v. Jaffee

Citation84 N.J. 88,417 A.2d 521
PartiesRenee PORTEE, Individually and as General Administratrix and Administratrix ad Prosequendum of the Estate of Guy Portee, Deceased, Plaintiff-Appellant, v. Edith JAFFEE, Nathan Jaffee, Watson Elevator Company and Atlantic ElevatorCompany, Defendants-Respondents.
Decision Date29 July 1980
CourtUnited States State Supreme Court (New Jersey)

Joseph Maran, Newark, for plaintiff-appellant (Ira J. Zarin, Newark, attorney).

Isaac Henkoff, Clifton, for defendants-respondents Edith Jaffee and Nathan Jaffee (Klein, Chester, Greenburg & Henkoff, Clifton, attorneys).

Gerald Kaplan, Morristown, for defendants-respondents Watson Elevator Co. and Atlantic Elevator Co. (Lieb, Berlin & Kaplan, Morristown, attorneys).

The opinion of the Court was delivered by

PASHMAN, J.

We are asked to determine whether a parent can recover damages for the emotional anguish of watching her young child suffer and die in an accident caused by defendant's negligence. In Falzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965), this Court imposed liability for such infliction of mental or emotional distress when negligence created the potential, but not the occurrence, for physical harm to the traumatized individual. The question presented here is whether liability should exist where there was no potential for personal injury, but distress resulted from perceiving the negligently inflicted injuries of another.

Relying on Falzone, the trial court rejected liability and granted partial summary judgment for defendants on this issue, R. 4:46-3. After the Appellate Division granted plaintiff's motion for leave to appeal, we directly certified the case, R. 2:12-1. 82 N.J. 295, 412 A.2d 801 (1980). We now reversed the trial court and remand the matter for further proceedings.

The factual premises of this appeal are the uncontroverted assertions of plaintiff Renee Portee. In reviewing the dismissal of her claims as legally insufficient, we must accept as true all the allegations of the complaint, the affidavits and products of discovery submitted on her behalf. We must also draw those reasonable inferences that are most favorable to her cause. E. g., Berman v. Allen, 80 N.J. 421, 426, 404 A.2d 8 (1979); Heavner v. Uniroyal, Inc., 63 N.J. 130, 133, 305 A.2d 412 (1973); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954); R. 4:46-2. The facts which follow are the result of this necessarily indulgent examination of the record.

Plaintiff's seven-year-old son, Guy Portee, resided with his mother in a Newark apartment building. Defendants Edith Jaffee and Nathan Jaffee owned and operated the building. On the afternoon of May 22, 1976, the youngster became trapped in the building's elevator between its outer door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor.1 Another child who was racing up a nearby stairway to beat the elevator opened it, saw the victim wedged within it, and ran to seek help. Soon afterwards, plaintiff and officers of the Newark Police Department arrived. The officers worked for four and one-half hours to free the child. While their efforts continued, the plaintiff watched as her son moaned, cried out and flailed his arms. Much of the time she was restrained from touching him, apparently to prevent interference with the attempted rescue. The child suffered multiple bone fractures and massive internal hemorrhaging. He died while still trapped, his mother a helpless observer.

During the unsuccessful efforts to save Guy Portee's life, the police contacted the office of defendant Atlantic Elevator Company in nearby Belleville, New Jersey. Along with defendant Watson Elevator Company, which designed and built the elevator, Atlantic was responsible for the installation and maintenance of the elevator. The police requested that Atlantic send a mechanic to the building to assist in the attempt to free plaintiff's son. Apparently no one came.

After her son's death plaintiff became severely depressed and seriously self-destructive. On March 24, 1979, she attempted to take her own life. She was admitted to East Orange General Hospital with a laceration of her left wrist more than two inches deep. She survived and the wound was repaired by surgery, but she has since required considerable physical therapy and presently has no sensation in a portion of her left hand. She has received extensive counseling and psychotherapy to help overcome the mental and emotional problems caused by her son's death.

On December 2, 1976, plaintiff brought suit against the Jaffees and the two elevator companies. The complaint was premised on defendants' negligence in failing to provide a safe elevator.2 As both general administratrix and administratrix ad prosequendum of the estate of Guy Portee, plaintiff asserted survival and wrongful death claims. N.J.S.A. 2A:15-3, :31-1. She also sued individually seeking damages for her mental and emotional distress caused by observing her son's anguish and death.3

Defendants Edith and Nathan Jaffee moved for summary judgment as to plaintiff's claims for mental and emotional distress on June 27, 1979. After a hearing the trial court granted the motion. In an oral opinion the court stated that Falzone v. Busch, supra, set the outer limits of liability for the negligent infliction of mental and emotional distress. The court noted that the Appellate Division had confirmed this view of Falzone in Burd v. Vercruyssen, 142 N.J.Super. 344, 361 A.2d 571 (1976), certif. den., 72 N.J. 459, 371 A.2d 64 (1976). Since plaintiff had concededly not been subjected to any risk of physical harm caused by defendants' alleged negligence, the trial court found that plaintiff's claims for psychological injury did not meet the requirements of Falzone.

Because the trial court considered this Court's decision in Falzone dispositive, we begin our discussion with that case. The plaintiff in Falzone had been placed in fear for her bodily safety by negligent conduct. See 45 N.J. at 561, 214 A.2d 12. Although she sustained no physical impact, this Court ruled plaintiff could recover damages for substantial bodily injury or sickness induced by fright. Id. at 569, 214 A.2d 12. In so holding, the Court overruled a long-established line of cases which had required some physical impact, however slight, to recover for emotional injuries. See, e. g., Tuttle v. Atlantic City R. R. Co., 66 N.J.L. 327, 49 A. 450 (E. & A.1901); Consolidated Traction Co. v. Lambertson, 60 N.J.L. 457, 458, 38 A. 683 (E. & A.1897); Greenberg v. Stanley, 51 N.J.Super. 90, 106, 143 A.2d 588 (App.Div.1958), mod. on other grounds, 30 N.J. 485, 153 A.2d 833 (1959); Justesen v. Pennsylvania R. R. Co., 92 N.J.L. 257, 106 A. 137 (Sup.Ct.1919); Ward v. West Jersey & S. R. R. Co., 65 N.J.L. 383, 47 A. 561 (Sup.Ct.1900); see also Graf v. Taggart, 43 N.J. 303, 312-313, 204 A.2d 140 (1964). It examined the three reasons given for the old rule, see Ward, supra, 65 N.J.L. at 385-386, 47 A. 561 and found them "no longer tenable." Falzone, supra, 45 N.J. at 563, 214 A.2d 12. The first reason that physical injury was presumed not to be a probable or natural consequence of fright was perceived by the Court as an issue to be resolved by medical evidence, not judicial presumption. Id. at 563-565, 214 A.2d 12. The Falzone Court rejected the second reason that there was a lack of precedent or consensus in favor of recovery as specious. Id. at 565-566, 214 A.2d 12; see State v. Culver, 23 N.J. 495, 505-507, 129 A.2d 715 (1957). The final reason traditionally advanced against liability was the prospect of recovery based on conjecture and speculation and a consequent flooding of the courts with groundless litigation. Falzone, supra, 45 N.J. at 566-567, 214 A.2d 12; see Ward, supra, 65 N.J.L. at 386, 47 A. 561. The Falzone Court responded by observing that the civil litigation process would safeguard against spurious and even fraudulent claims. 45 N.J. at 562, 214 A.2d 12. Finding the conventional rationales to be insufficient, the Court overruled Ward and held that "where negligence causes fright from a reasonable fear of immediate personal injury," the frightened person could recover damages for any resulting "substantial bodily injury or sickness." Id. at 569, 214 A.2d 12, 17.

Falzone expressly required that any resulting bodily harm be substantial. Id. It did not, however, explicitly limit liability to cases in which the distressed plaintiff had been subjected to an unreasonable risk of physical harm. See id. at 569-570, 214 A.2d 12. Nevertheless, since the new cause of action was in derogation of the prior inflexible requirement of physical impact,4 some decisions interpreted Falzone narrowly. Liability has been denied where the plaintiff suffered distress without having been subjected to a risk of physical harm. Burd v. Vercruyssen, supra; Kern v. Kogan, 93 N.J.Super. 459, 226 A.2d 186 (Law Div.1967). Other cases have recognized the absence of such an express limitation in Falzone. When independently assessing foreseeable risks of emotional distress, courts have found possible liability for the negligent mishandling of a corpse, Muniz v. United Hospitals Med. Cen. Presbyterian Hosp., 153 N.J.Super. 79, 379 A.2d 57 (App.Div.1977), and for the unreasonably aggravating handling of a consumer's complaint about a defective product, Lemaldi v. De Tomaso of America, Inc., 156 N.J.Super. 441, 383 A.2d 1220 (Law Div.1978); see also Fiore v. Sears, Roebuck & Co., Inc., 144 N.J.Super. 74, 77, 364 A.2d 572 (Law Div.1976).

This Court has recognized that Falzone did not place express limits on negligence liability for mental or emotional distress. In Caputzal v. The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966), we observed that questions of liability for non-intentional conduct were generally governed by the concepts of "duty, and the breach thereof, and proximate, or legal, cause of the...

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