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Acevedo v. County of Essex

Decided: August 21, 1985.

RAMADES ACEVEDO, PLAINTIFF,
v.
COUNTY OF ESSEX, DR. THOMAS SANTORO AND DR. PABLO ROY, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

[207 NJSuper Page 582] This is a motion for summary judgment brought by defendants to dismiss plaintiff's complaint which seeks damages for

negligent infliction of emotional distress, caused because of plaintiff's alleged observance of his son's body which was exhumed four months after the Essex County Medical Examiner had determined the cause of death to be pneumonitis, when it was later discovered to be murder caused by four bullets in the head.

The issues involved are: (1) must plaintiff satisfy the four elements necessary to establish a case for negligent infliction of emotional distress; (2) must plaintiff's claim for recovery for pain and suffering be dismissed for failure to meet the $1,000 threshold of N.J.S.A. 59:9-2(d); and (3) are defendants immune from this suit by virtue of the Tort Claims Act, N.J.S.A. 59:3-10 and :2-2(b).

The court holds that plaintiff cannot establish the necessary elements to establish a case for negligent infliction of emotional distress and has not satisfied the threshold requirements of the Tort Claims Act. In addition, defendants have immunity. Accordingly, defendants' motion for summary judgment is granted.

The undisputed facts are that plaintiff's son, Thomas Acevedo, was found dead in his bed on January 30, 1982. His body was taken to be examined by the Essex County Medical Examiner. The examination report stated that the cause of death was pneumonitis. Others who had observed the body told plaintiff that there were bullet wounds in the head. Four months after the burial the body was exhumed at the request of the prosecutor, and it was re-examined. It was then determined that Thomas had been murdered because there were four bullets lodged in his head.

Plaintiff filed suit against the County of Essex, Dr. Thomas Santoro, its Medical Examiner and Dr. Pablo Roy, its Assistant Medical Examiner, alleging that he suffered great anguish and emotional distress as a result of the incorrect autopsy report and subsequent exhumation of his son's body. There is no

competent evidence where, when or if plaintiff observed his son's body.

Defendants move to dismiss plaintiff's complaint on four grounds:

(1) failure to establish all four elements of a claim for emotional distress;

(2) failure to meet the $1,000 threshold requirement of N.J.S.A. 59:9-2(d);

(3) the individual defendants are immune from liability for any misrepresentations under N.J.S.A. 59:3-10, and the county, therefore, is immune because its liability must track the employee's liability under N.J.S.A. 59:2-2(b); and

(4) plaintiff has not substantially complied with the notice provisions of N.J.S.A. 59:8-1 et seq.

ELEMENTS TO RECOVER FOR EMOTIONAL DISTRESS NOT SATISFIED.

Plaintiff has failed to establish the elements for negligent infliction of emotional distress.

The law concerning recovery for negligent infliction of emotional distress is clearly set forth in Portee v. Jaffee, 84 N.J. 88 (1980). The four elements that must be proved to recover are:

(1) the death or 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].

In Portee, the court expanded the outer limits of liability for negligent infliction of mental and emotional distress previously set forth in Falzone v. Busch, 45 N.J. 559 (1965). In Portee the court held that a mother who watched her seven-year old son suffer and die when he became trapped in an elevator could recover damages for mental and emotional distress, even though she had not been ...


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