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Mercado v. Transport of New Jersey

Decided: September 19, 1980.


Yanoff, J.s.c.


This is an application of the principles laid down in Portee v. Jaffee , 84 N.J. 88 (1980).

Plaintiff personally, as general administratrix and as administratrix ad prosequendum , sued for the death of her eight-year-old son in three causes of action: (1) her own emotional injuries; (2) an action under the Death Act, N.J.S.A. 2A:31-5, in which loss of companionship is the only claim; (3) for pain and suffering during the infant's lifetime under N.J.S.A. 2A:15-3.

Prior to the decision in Portee, supra , I granted summary judgment for defendants as to items (1) and (2).*fn1 When the Portee decision was issued a motion for reargument was made. The only substantial question relates to the direct claim for emotional trauma. It requires interpretation of the third of four prerequisites for recovery laid down by the court's opinion:

The uncontradicted facts shown by the papers are: On April 19, 1977, at about 2:25 p.m., Luis Medina, the eight-year-old decedent, was struck by a bus owned by defendant Transport of New Jersey and operated by defendant Sumner Hughes, Jr. Plaintiff Aida M. Mercado did not witness the accident but learned of it minutes later when her daughter rushed into her residence and told her what had just occurred. Mrs. Mercado

hurried outside and saw her son in the street, severely injured and unconscious. Luis Medina died at 3:45 p.m. that same afternoon.

I conclude that Portee does not require that a close relative who makes a personal claim for emotional injury witness the accident causing the alleged emotional injury. As presented, the facts show that the mother saw the child lying in the street a very short time after the impact. In Portee the mother was not present when first her son became trapped in the elevator. The opinion is silent as to how long a time elapsed between the moment when the child became trapped and when the mother arrived.

The authorities cited in Portee (at 97-98) offer guidance to solution of the problem. In all of the cases cited, only in Landreth v. Reed , 570 S.W. 2d 486 (Tex.Civ.App.1978); Dziokonski v. Babineau , 375 Mass. 555, 380 N.E. 2d 1295 (Sup.Jud.Ct.1978), and Kelley v. Kokua Sales & Supply, Ltd. , 56 Haw. 204, 532 P. 2d 673 (Sup.Ct.1975), did the plaintiff relative who claimed damages for emotional trauma not see the accident. Of these cases, only in Kelley v. Kokua Sales & Supply, Ltd. was recovery denied. In that case plaintiff was in California at the time the accident occurred in Hawaii. The court held as a matter of law that the distance was too great to permit recovery. 56 Haw. at 209, 532 P. 2d at 676. In the other cases where plaintiff did not witness the occurrence of the accident, he or she arrived at the scene shortly thereafter and witnessed the suffering of the victim immediately. In Landreth v. Reed, supra , there was a drowning. It was not clear whether the plaintiff sister actually saw the drowned person in the pool. There the court said: "In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence." [570 S.W. 2d at 490] The guiding principle in the cited cases was that noted by Justice Pashman in Portee:

Notably, he did not say that observation of the accident itself is a prerequisite for recovery. In Corso v. Merrill, N.H. , 406 A.2d 300 (Sup.Ct.1979), the fact that the close relative did not actually see the accident did not preclude recovery.

To require that the relative witness the actual moment of impact would create very difficult problems of proof. A mother walking hand in hand with her child on the street might not actually see the contact between the child and a motor vehicle. The requirement of "direct . . . sensory and contemporaneous observance" stated in the Portee opinion relates not to witnessing the moment of actual impact, but to witnessing the suffering of the victim. The opinion states: "The trauma of witnessing the agonizing death of one's child may be no less substantial than the shocking realization that one's newborn child is profoundly crippled and will remain so for life." 84 N.J. at 95.

Portee did not pass upon any claim other than the parent's direct claim for emotional injury. Although the complaint asserted survival and wrongful death claims under N.J.S.A. 2A:15-3 and N.J.S.A. 2A:31-1, as indicated, I have denied the summary judgment motion as to the action by the general administratrix for pain and suffering during the lifetime. However, the ruling as to the action by the administratrix ad prosequendum for wrongful death, DeSanto v. Babino , 168 N.J. Super. 582 (App.Div.1979), is probably not affected by the Portee ruling as to the claim of a close relative for emotional injuries. It certainly ...

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