On appeal from the Superior Court, Law Division, Union County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.
This is an appeal from a summary judgment dismissing the complaint brought on behalf of an infant plaintiff seeking recovery for emotional injury sustained by him as a result of having witnessed his brother's death in an automobile-bicycle accident. The legal issues here projected involve the retrospectivity of Portee v. Jaffee, 84 N.J. 88 (1980), which recognized the cause of action on which this complaint was based, as well as questions relating to the applicability in the circumstances here of various preclusionary doctrines which might bar this action.
Resolution of these issues requires some extended background exposition, both legal and factual. Insofar as we can reconstruct from the regrettably sparse record before us, Mario A. Goncalvez, while riding his bicycle, was struck by an automobile being driven by defendant Anthony Patuto. Mario died as a result of the injuries he then sustained. The accident was witnessed both by Mario's father, plaintiff Antonio Goncalvez, and by his brother Rui, on whose behalf this action was brought. The accident occurred on August 18, 1976. The brothers were then apparently eight and ten years old although we cannot ascertain from this record either their precise ages or which was the elder.
Almost two years after the accident, on March 13, 1978, the first action generated by the accident was commenced. Although the pleadings therein are not included in this record, it appears to have been a wrongful death and survival action prosecuted by the father Antonio Goncalvez, as administrator ad prosequendum of Mario and as administrator of the estate of Mario. It further appears that a per quod claim was asserted in that action by both of Mario's parents, Antonio and Maria Goncalvez, who are named as individual plaintiffs in the caption. The wrongful death action was settled in November 1979 for a total recovery of $15,000 and a release given to defendant. The named releasors were Antonio Goncalvez as administrator ad prosequendum and administrator, and Antonio and Maria Goncalvez
individually. Both parents signed the release in those respective capacities. There does not appear to have been any allocation of the total settlement amount as among the wrongful death action, the survival action and the per quod claim of the parents.*fn1
Finally, it appears that because of the potential interest of Rui, the minor brother in the wrongful death action proceeds, a guardian ad litem was appointed to review the settlement and to report to the court on Rui's interest therein.*fn2 Although the report of the guardian ad litem appears to suggest that the entire settlement may have been allocated to the wrongful death claim, nevertheless there remains a question as to whether any of it was allocated to the survival action.*fn3 The distinction is critical in terms of Rui's entitlement to a share of the proceeds. Thus, pursuant to N.J.S.A. 2A:31-4 and 5, Rui would have been entitled to a share of the wrongful death recovery only if he were a dependent intestate taker or, if there were no dependents among the intestate takers, only to the extent determined by the court to be fair and equitable. See Jurman v. Samuel Braen, Inc., 47 N.J. 586, 601-602 (1966); State v. Gosnell, 106 N.J. Super. 279 (App.Div.1969). He was reported by the guardian not to have been a dependent and that conclusion was not
disputed. In the context of a fair and equitable allocation of the wrongful death action proceeds, we further note that the pecuniary losses, if any, sustained by Mario's family were suffered primarily by his parents. Hence the likelihood of Rui's entitlement to a share of those proceeds was remote. In respect, however, of an estate of Mario created by a fund representing the proceeds of a survival action, intestate taking thereof is unrelated to dependency or pecuniary loss. Thus, pursuant to former N.J.S.A. 3A:4-4, then applicable, Rui would have been entitled to share therein equally with his parents.*fn4 In any event, the guardian further reported that Rui had suffered a severe psychiatric trauma as a result both of the death of his brother and of his having witnessed it, and that he required "psychiatric attention and psychotherapy treatment." He also reported that the father had volunteered to have the entire settlement fund placed in trust for his surviving son so that these needs could be fulfilled. There is nothing in this record to suggest other than that the guardian's report was accepted by the court and the settlement approved on the basis thereof.
After the conclusion of this first action, the New Jersey Supreme Court, on July 29, 1980, issued its opinion in Portee v. Jaffee, 84 N.J. 88 which clarified the law governing recovery for the negligent infliction of emotional distress. Making clear that a claimant's right to seek such a recovery was not dependent upon his also having sustained a physical impact or being in imminent risk of physical impact, the court identified the four elements of the emotional-injury cause of action, to wit,
(1) The death or a serious physical injury of another caused by defendant's negligence; (2) a marital or intimate familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. [at 101]
Significantly, the court did not view the principles it enunciated in Portee v. Jaffee as constituting ...