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Portee v. Jaffee

Decided: July 29, 1980.


On certification to the Superior Court, Law Division.

For reversal -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- none. 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 (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 (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 (1979); Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 (1973); Judson v. Peoples Bank

& Trust Co. of Westfield, 17 N.J. 67, 73-75 (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.*fn1 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.*fn2 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.*fn3

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 (1976), certif. den., 72 N.J. 459 (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 ...

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