On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
Plaintiffs Edward Eyrich and Patricia Eyrich appeal from a summary judgment dismissing their complaint on the ground that it failed to state a cause of action upon which relief could be granted. The gravamen of the complaint was the emotional damage each of the plaintiffs claimed to have sustained as the result of a fatal attack by a circus leopard upon the five-year-old child of a neighbor whom they had taken with them to the circus performance. The issue is whether, under the totality of the operative circumstances, that damage is compensable by any of the defendants, each of whom was in some way involved in presenting the circus performance.
The record on the summary judgment motion included the product of extensive discovery. That record, viewed most favorably to plaintiffs, establishes a factual background requiring some detailed exposition. In June 1979 when this incident occurred, plaintiffs and their three daughters, then aged 13, 11 and 3, lived next door to the Vacarezza family, which had two children, a 15-year-old daughter and a 5-year-old son, Jerome, nicknamed Jay-Jay. The two families were close friends. Plaintiffs, and particularly Mr. Eyrich, had, however, a special relationship with Jay-Jay. At the time Jay-Jay was born, Mr. Vacarezza suffered from a serious cardiac condition requiring open heart surgery and a consequently extended hospitalization and recuperation. The Eyrichs assumed Jay-Jay's care almost exclusively during the first six-months of his life. Their closeness to Jay-Jay continued, the four adults agreeing that Mr.
Eyrich looked upon Jay-Jay as the son he himself had never had and acted toward him as a "surrogate father."
The two families had planned to attend a local circus performance on June 7, 1979. The Vacarezzas were unable, however, to go but sent Jay-Jay along with the Eyrichs. The circus had been booked by defendant Schooley's Mountain Fire Protection Association (Schooley's) as a fund-raiser to support its volunteer fire-fighting activities. Schooley's had arranged with defendant Washington Township Board of Education for the use of school property for the performance. The circus itself was owned by defendant Robert Earl, trading as Roberts Bros. Circus (Roberts). In accordance with what appears to be a matter of custom and usage, a circus impresario, defendant William Bleisner, doing business as Wilmer Associates, had contracted with Earl for the exclusive booking rights for the circus for a designated time period. Bleisner in turn made specific bookings through his agent, defendant Carlton Young, and it was Young who apparently had negotiated with Schooley's for its sponsorship of the circus performance. The circus did not have its own wild-animal act. It appears that through Young's intervention Bleisner had contracted with defendant Conny Dam, trading as Miss Constancia Leopard and Jaguar, for the inclusion of her act, which consisted of two leopards and a jaguar.
The circus performance was held in a tent erected by Roberts in an open area adjacent to a school building. Plaintiffs with their three children and Jay-Jay arrived for the 8:00 p.m. performance and seated themselves in the bleachers erected around the circus' three rings. Dam's animal act was first on the program. Just after it started, Jay-Jay had to use the bathroom, necessitating a trip out of the tent and into the school building. The Eyrich's middle daughter, Mary Jo, volunteered to take him. As the two children reentered the tent, Dam was working with the jaguar. The two leopards were on stools. In order to return to their bleacher seats, the children were required to walk close to the center ring in which the animals were performing. As they passed, Mary Jo holding Jay-Jay's
hand, one of the leopards leaped off its stool, pounced on Jay-Jay, and dragged him under an empty transport cage. Mr. Eyrich, observing the disaster, rushed to the ring from his seat, pushed over the cage, and wrestled with the leopard in order to free Jay-Jay from its jaw-hold. Jay-Jay, bleeding profusely from his head and neck, was placed by other bystanders in Eyrich's arms. Eyrich, himself bruised by the leopard, ran out of the tent with the child. There were no persons trained in first-aid and no first-aid facilities at the premises. A special police officer stationed there to control traffic summoned an ambulance. Eyrich rode with Jay-Jay to the hospital where he died of exsanguination shortly after arrival.*fn1 Not the least of the many tragic ironies of this affair appears in the report of a physician-expert, whose opinion it was that the boy would have been saved if anyone in the immediate vicinity had had any first-aid training and therefore would have known that the fatal bleeding could have been stanched pending hospital treatment merely by pressing an index finger on the child's right occipital artery.
As to the happening of the tragedy itself, we are satisfied, based on the written report of plaintiffs' expert in circus management, that there is strong evidence of gross negligence. As to the animal act itself, it was the expert's statement that elementary safety precautions require that such an act be performed inside a steel cage surrounding the ring, that a sufficient number of animal trainers be stationed in the immediate vicinity
of each animal to cope with any sudden emergency, and that the animals be adequately restrained so as not to endanger the audience. Here, the only barrier between the animals and the audience was the 4 to 6 inch high wooden perimeter of the ring. Instead of experienced animal trainers, Dam had enlisted four of Schooley's volunteer firemen to stand around the ring with toy whips. They regarded themselves as the act's comic relief. In lieu of adequate restraints, the animals were attached to wooden stakes by a long chain. Finally, it appeared during the course of discovery that on the day before this tragedy one of the leopards had attacked the circus ringmaster.
The physical set-up within the tent also violated well-recognized safety standards. According to the expert, it lacked safe exits, safe aisles, and typically used warning signs. There were no adequate physical barriers between the audience seating and the performers, and the audience aisles around the performing area leading to the seats were too narrow for safety. The performers' entrance, which had been used by the children, had not been made inaccessible to the audience as it customarily is because it bears "the heaviest and most dangerous traffic of the circus." There were no security personnel or ushers to see to crowd control or to keep members of the audience, particularly children, out of zones of risk, and those zones were in no way marked with customary warning signs. It was also the expert's statement that a normal safety precaution, ignored here, is the stationing of an usher at each entrance to direct persons reentering the tent back to their seats by the safest route or even to stop their immediate reentry if danger to them would be then involved. There was also no adequate public address system for giving of effective verbal warnings to the audience. Nor, perhaps most egregiously, did the circus have its own first-aid facility or arrange for first-aid services in the event of an emergency. [193 NJSuper Page 251] The psychological aftermath of the tragedy has been devastating for both plaintiffs,*fn2 but particularly for Mr. Eyrich. A year-and-a-half after the event, both were diagnosed as suffering from depressive neurosis, characterized as a "significant disorder for which the prognosis is poor without continued psychotherapy." It was also the psychiatrist's opinion that an appropriate course of psychotherapy would require weekly visits over a several-year period. Both, however, have been described as resistant to psychotherapy, it being the psychiatrist's opinion that "while they have rationalized this on a financial basis, dependency and control issues, as well as the wish to avoid pain, appear to be the unconscious bases for this resistance." Mrs. Eyrich, as a direct consequence of the event, was psychologically unable to continue her employment at a local nursery school and resigned from that job. She is chronically depressed and is aware of the deterioration of her marriage and her other personal relationships. The impact upon Mr. Eyrich has been even more severe, a fact attributed by the psychiatrist both to his direct involvement in the episode and to his special paternal-like relationship to the boy. He suffered from a period of excessive drinking which he eventually overcame, from "suicidal ideation," and from insomnia. He continues to be severely depressed. He also suffers recurring olfactory hallucinations in which he smells the blood which had spurted all over him. He keeps reliving the entire experience and instead of being able to mourn the child with normal grief, he became "fixed on reexperiencing the boy's loss, even to the point of beginning to identify with him and developing a fear that he himself would be attacked by a cat or other animal." Clearly then, both plaintiffs, and particularly Mr. Eyrich, sustained serious and permanent psychological damage which significantly affects their respective abilities to function normally in their daily lives and relationships.
The only legal issue here is whether this psychological damage is compensable. The trial judge concluded that it was not and granted defendants' motion for summary judgment dismissing the complaint.*fn3 Plaintiffs appeal, relying on a variety of well-established tort doctrines pursuant to which psychological damages may be compensable. Their claim is that each of those doctrines applies to these circumstances. They argue that their claim is comprehended by (1) the so-called outrageous tort doctrine, (2) the scope of liability imposed on the harborers of wild animals, (3) the intimate familial observer doctrine of Portee v. Jaffee, 84 ...