On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Shebell, Havey and Skillman. The opinion of the Court was delivered by Havey, J.A.D.
Plaintiff Marsha Srebnik, individually and as administratrix of the Estate of Harold Srebnik, her late husband, appeals from a judgment entered on a jury verdict of no cause for action in favor of defendants State of New Jersey and the New Jersey Highway Authority. On appeal, plaintiff contends that the trial judge erred in concluding that her claim for "permanent" emotional distress was barred by the Tort Claims Act, N.J.S.A. 59:9-2d. She argues that "permanent" emotional distress constitutes a "permanent loss of a bodily function" and therefore is not subject to the statutory bar. She also asserts that the jury's verdicts on the issue of negligence were inconsistent, and therefore must be set aside. Defendants in their cross-appeal argue that the trial judge erred in failing to dismiss plaintiff's claim for emotional distress under Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980) and in admitting evidence of plaintiff's emotional distress.*fn1 We affirm.
While returning to their Westbury, New York home from Atlantic City at approximately 11:00 p.m., plaintiff and her late husband Harold Srebnik were involved in a one-car accident on the Garden State Parkway. The vehicle operated by Mr. Srebnik veered off the parkway near mile post 103, hit a guardrail,
flipped over and came to a halt in a ditch below the surface level of the roadway. A witness who saw the accident reported it to a toll-booth operator at the Asbury Park toll plaza, and a radio dispatcher transmitted the report to the state police. A search of the area that evening by a state trooper in the vicinity of mile post 103 was unavailing.
Plaintiff remained in the vehicle until daylight the next morning. While in the car she heard "moan[s] and groan[s]" from her husband. At dawn, plaintiff crawled out of the vehicle despite pain in her chest and swelling in one leg. After exiting the vehicle she observed her husband lying face down approximately 30 feet away. Upon observing him, plaintiff knew he was dead.
At 8:14 a.m. a state trooper, while on routine patrol, found plaintiff, her deceased husband and their disabled vehicle in the ditch. Plaintiff was taken to the Jersey Shore Medical Center where she remained for three weeks. She was treated for various injuries, including a collapsed lung.
The gravamen of plaintiff's complaint is that defendants failed to respond reasonably and promptly to reports of the accident and to make a thorough search of the accident scene. She claims that as a result of defendants' failure to "provide immediate and/or timely assistance" Mr. Srebnik's chance of survival was lost, and she was caused to suffer "permanent . . . emotional and psychological" pain.*fn2
Plaintiff testified that while hospitalized she consulted by phone with a psychotherapist on approximately 20 occasions. Upon her release she underwent psychotherapy twice a week because of recurrent fear of dying, frequent nightmares, loneliness and depression. She continued the therapy for over three
years. She described her emotional distress during this period as follows:
Well, I had some old stuff that came back; fear of dying was probably my biggest problem. Fear of death, waking up during the night with as I was having like a heart attack feeling, anxiety during the night. A lot of guilt about my having survived, my husband having died, not being at the funeral. Wasn't sure about you know, I hope they have the right body in the casket. . . . I had a recurrent nightmares in one form or another of the accident. My whole life was upside down. I was worried about the future, worried about how I'm going to manage. . . . I was apprehensive about running [the family coffee shop] by myself because I knew how strong my ...