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Desanto v. Babino

Decided: June 8, 1979.

EMILE DESANTO, JR., INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF GRACE DESANTO, PLAINTIFF-APPELLANT,
v.
NICHOLAS BABINO AND THE ESTATE OF DONNA BABINO, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Bergen County.

Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

On January 13, 1976 plaintiff's mother, Grace De Santo, was a passenger in a vehicle owned by plaintiff's brother-in-law, Nicholas Babino, and being driven by his sister, Donna, who was the wife of Nicholas Babino. Allegedly due to the negligence of Donna in the operation of the vehicle, an accident occurred. Both plaintiff's mother and his sister were killed. Plaintiff was not a witness to the accident.

Plaintiff, an adult, suffers from multiple sclerosis. It was learned that he had this condition in 1969. By 1972 it had produced such physical degeneration that he was unable to work. He lived with his mother until she died and was "emotionally and financially" dependent upon her. Plaintiff claims that when he was informed of his mother's death he suffered such an immediate and catastrophic deterioration in his physical condition as to render him incapable of walking without the aid of a walker and made it impossible for him to leave his apartment.

Plaintiff instituted an action individually and as executor of his mother's estate by which he sought damages from Nicholas Babino and the estate of his late sister for his

pecuniary injuries under the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. , and for the pain and suffering, and medical and hospital expenses of his mother, Grace De Santo.

Added to the claim for pecuniary loss under the Wrongful Death Act and the claim for the pain and suffering and expenses of his mother was the following claim as stated in the fifth count of the complaint:

That due to the negligence of both Defendants, the Plaintiff, who is a victim of multiple sclerosis and is unable to ambulate, has had his physical condition further disintegrate due to the death of his mother, Grace De Santo, on whom he depended for care, companionship and support.

WHEREFORE, Plaintiff demands judgment against the Defendant, NICHOLAS BABINO and the estate of DONNA BABINO on this Count plus costs of suit.

Plaintiff thereby sought to recover directly (as distinguished from the indirect recovery as next of kin under the Wrongful Death Act) for the impact upon him individually of the deprivation of his mother, i.e. , loss of her "care, companionship and support," and the further deterioration of his physical condition allegedly resulting from the tragic incident.

Since this alleged cause of action appeared to defendants not only to be novel but also to be untenable, they challenged it by moving for a summary judgment. R. 4:46-1 et seq. After hearing argument on the motion the trial judge granted summary judgment on the basis of his conclusion that the asserted claim "was not a recognizable item of damages for a damage claim." Plaintiff then filed a notice of appeal, which brought the matter to us for review.

Preliminarily, defendants interpose the objection that this appeal is interlocutory and plaintiff did not secure leave to file same. R. 2:2-4; R. 2:5-6(a). Although the contrary may be argued, since the subject claim is completely foreign to the remaining claims, we need not decide the point since we ...


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