Dunphy v. Gregor

• Decision Date: 02 June 1994
• Parties: , 62 USLW 2797 Eileen M. DUNPHY, Plaintiff-Respondent, v. James L. GREGOR, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 99

136 N.J. 99

642 A.2d 372, 62 USLW 2797

Eileen M. DUNPHY, Plaintiff-Respondent, v. James L. GREGOR, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Oct. 13, 1993.

Decided June 2, 1994.

Donald S. McCord, Jr., Morristown, for appellant (O'Donnell, McCord, Helfrich & Bangiola, attorneys).

William J. Vosper, Jr., Stillwater, for respondent.

E. Drew Britcher, Paramus, submitted a brief for amicus curiae, Association of Trial Lawyers of America--New Jersey (Stern, Steiger, Croland, Tanenbaum & Schielke, Paramus, attorneys; Mr. Britcher and Armand Leone, Jr., New York City, on the brief).

The opinion of the Court was delivered by

HANDLER, J.

Many states, including our own, recognize the tort commonly referred to as "bystander" liability. Bystander liability allows recovery for the emotional injury suffered by a person, who, as a bystander, witnesses the wrongful death or serious physical injury of another person with whom the bystander had a close, substantial, and enduring relationship. In this case, the central inquiry focuses on the nature of that relationship. The specific issue presented is whether bystander liability allows recovery by a person who was not legally married to a deceased victim but who cohabitated with and was engaged to marry the decedent.

The issue is sharpened by the conflicting opinions of the lower courts. The trial court ruled that an action for negligent infliction of emotional distress was not available to a claimant who was neither married to nor involved in an intimate familial relationship with the decedent. The Appellate Division ruled that a jury should be allowed to determine whether the relationship of cohabitants engaged to be married was the functional equivalent of an intimate familial relationship. 261 N.J.Super. 110, 617 A.2d 1248 (1992). A dissent in the Appellate Division expressed the view that only persons legally married would be entitled to such a cause of action. Id. at 125, 617 A.2d 1248.

The appeal is before this Court as a matter of right because of the dissenting opinion. R. 2:2-1(a)(2).

I

Eileen Dunphy and Michael T. Burwell became engaged to marry in April 1988 and began cohabitating two months later. The couple set a date of February 29, 1992, for their wedding. On September 29, 1990, the couple responded to a friend's telephone call for assistance in changing a tire on Route 80 in Mount Arlington. As Michael changed the left rear tire of the friend's car on the shoulder of the roadway, he was struck by a car driven by defendant, James Gregor. After being struck by the vehicle, his body was either dragged or propelled 240 feet. Eileen, who had been standing approximately five feet from Michael, witnessed the impact, and ran to him immediately. Realizing that he was still alive, she cleared pebbles and blood from his mouth to ease his breathing. She attempted to subdue his hands and feet as they thrashed about, all the while talking to him in an effort to comfort him. The following day, after a night-long vigil at Dover General Hospital, Eileen was told that Michael Burwell had died as a result of his injuries. Since the accident, Eileen has undergone psychiatric and psychological treatment for depression and anxiety. She instituted an action seeking to recover damages for the "mental anguish, pain and suffering" experienced as a result of witnessing the events that led to the death of her fiance.

Eileen testified at her deposition that both she and Michael had taken out life-insurance policies making each other beneficiaries. They had maintained a joint checking account from which they had paid their bills, and also they had jointly purchased an automobile. In addition, Michael had asked her several times to elope with him, and he had introduced her in public as his wife.

II

In Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), this Court first recognized a cause of action for the negligent infliction of emotional injury experienced by a bystander who witnessed the wrongful death of another person. A mother suffered horrendous emotional trauma as a result of watching her seven-year-old son suffer a slow and agonizing death after becoming trapped in an elevator. The Court sustained the mother's right to bring a negligence action for the infliction of emotional injury against the landlord and the elevator company, although she herself had not been subjected to any risk of physical harm. Id. at 101, 417 A.2d 521. In recognizing a bystander's cause of action for the negligent infliction of emotional injury, the Court cited approvingly to Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), in which the California Supreme Court allowed a mother to recover damages for the emotional injury she had suffered from witnessing the wrongful death of her daughter. The California court, acknowledging that the mother had been a mere bystander to the tragedy, specifically noted that the horror of the event bore uniquely on her because the victim had been her own daughter and because she had been near the accident and had actually observed its occurrence. Those considerations shaped the standard adopted by the court to govern a cause of action for the infliction of emotional injury. Dillon, supra, 69 Cal.Rptr. at 80, 441 P.2d at 920.

In Portee, we adopted a similar standard. Portee set out a four-factor test for determining a cause of action for negligent infliction of emotional distress. For a bystander-claimant to prevail, the claimant must demonstrate "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between the plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." 84 N.J. at 101, 417 A.2d 521.

In Portee, we explained the importance of the existence of an intimate familial relationship between the plaintiff and the victim as the basis for recovery It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling. The genuine suffering which flows from such harm stands in stark contrast to the setbacks and sorrows of everyday life, or even to the apprehension of harm to another, less intimate person. The existence of a marital or intimate familial relationship is therefore an essential element of a cause of action for negligent infliction of emotional distress.

[Id. at 98-99, 417 A.2d 521 (footnotes omitted).]

The Appellate Division understood Portee to mean that the law "should not ignore the fact of a deep emotional attachment between ... any two persons who share an adequately earnest emotional commitment in a relationship that is functionally equivalent to familial." 261 N.J. at 123-24, 617 A.2d 1248. Accordingly, the majority below held that the marital or intimate-familial-relationship standard that was applied in Portee to a parent and child also encompassed the relationship between plaintiff and her fiance. Id. at 123, 617 A.2d 1248.

The dissent below interpreted the Portee requirement of a "familial relationship" as one restricted to marriage or blood ties. 261 N.J.Super. at 125, 617 A.2d 1248 (Muir, J.A.D., dissenting). It noted that the California court, which authored Dillon, supra, has since refused to extend the cause of action for negligently-inflicted emotional distress to persons in a cohabitant relationship. Ibid. (citing Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582 (1988)). The dissent concluded that our courts should similarly limit bystander liability. Ibid.

As in this case, the plaintiff and the decedent in Elden were cohabitants and were involved in a relationship that the plaintiff claimed was similar to a marital relationship. 250 Cal.Rptr. at 257-58, 758 P.2d at 585. They were riding together in a car when it was struck by the defendant's car, throwing the decedent from the vehicle and fatally injuring him. The plaintiff brought an action to recover for the negligent infliction of emotional distress resulting from witnessing her fiance's fatal injuries. Id. at 254-55, 758 P.2d at 582-83.

In rejecting the cohabitant's claim, the California Supreme Court stressed the need for a "sufficiently definite and predictable test to allow for consistent application from case to case." Id. at 260, 758 P.2d at 587. It reasoned that to allow recovery for emotional distress to those outside of the victim's immediate family "would result in the unreasonable extension of the scope of liability of a negligent actor." Id. at 260, 758 P.2d at 588. It determined that it must draw a "bright line" to limit the scope of liability of a negligent actor, and it therefore restricted bystander liability to persons who were legally married or related.

The court in Elden was reacting to the experience of the California courts with bystander liability under the Dillon standard. After Dillon, California courts had expanded nearly all the boundaries of liability set out in the several prongs of the Dillon analysis. See, e.g., Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 (1985) (permitting recovery even though injury-producing event was not sudden or accidental); Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980) (eliminating "sudden occurrence element" for "direct victim" plaintiffs); Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (1977) (ruling that plaintiff need not visually perceive third-party injury to recover); Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (Ct.1978) (broadening concept of contemporaneous observation). Elden thus came after a marked expansion of the applicability of bystander liability.

The California Supreme Court's perception that bystander liability had become too expansive and burdensome...