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Dunphy v. Gregor

Decided: December 23, 1992.


On appeal from the Superior Court, Law Division, Morris County.

R.s. Cohen, Muir, Jr. and Kestin. The opinion of the court was delivered by Kestin, J.A.D. Muir, Jr., J.A.D., Dissenting.


In Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), the Supreme Court held that a parent is eligible to recover damages "for the emotional anguish of watching her young child suffer and die in an accident caused by defendant's negligence". Id. at 90, 417 A.2d 521. Portee requires proof of four elements before a plaintiff may prevail in a cause of action for negligent infliction of emotional distress.

(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.

Id. at 101, 417 A.2d 521.

This case raises the question whether a plaintiff who was engaged to and cohabitating with the decedent is encompassed within the second element as a matter of law. The issue arises on appeal of the trial court's grant of defendant's motion for summary judgment dismissing the complaint for failure to state a claim upon which relief could be granted. R. 4:6-2, R. 4:46. For the purposes of that motion, defendant conceded that plaintiff could satisfy the remaining three elements of Portee and that the facts were as depicted by the plaintiff. See Portee, supra, 84 N.J. at 90-91, 417 A.2d 521.

Michael Burwell and Eileen Dunphy, the plaintiff, became engaged in April 1988 and began living together in June 1988. Their wedding was planned for February 29, 1992. On September 29, 1990 they responded to a friend's telephone call for emergency assistance on Route 80 in Mt. Arlington. It was mid-afternoon on a clear day. Burwell was tightening the lug nuts on a tire he had replaced on the left rear wheel of the friend's automobile, which was parked on the right shoulder of the roadway. Just before impact, plaintiff saw defendant's car "swerving" from the slow lane toward the shoulder in Burwell's direction. It impacted with the rear bumper of the

disabled vehicle and either dragged or propelled Burwell's body 240 feet. When the impact occurred, plaintiff was standing about five feet directly behind the disabled vehicle with its driver who was standing to plaintiff's left. Plaintiff witnessed the impact and its outcome. She ran to her fiance believing him to be dead. When she discovered he was still alive, she did everything she could for him. She wiped blood, dirt and pebbles from his mouth and lips, held his hands and feet as he thrashed about, and talked to him in an effort to comfort him. After Burwell was taken from the scene, plaintiff saw him again as he was quickly wheeled into Dover General Hospital. At about midnight, she saw him fleetingly as he was taken from the recovery room to the intensive care unit. She spent about an hour with him after he was settled in the intensive care unit. Plaintiff reappeared the following morning and spent all of each permitted visiting period with Burwell until his death that afternoon, which was reported to her while she was awaiting the next visit.

As a result of this experience, plaintiff suffered from depression and anxiety, and was being medicated for both conditions at the time of her deposition on April 11, 1991. She was being treated by a psychologist at sessions once or twice a week and by a psychiatrist at sessions four to six weeks apart. Plaintiff seeks damages for her "mental anguish, pain and suffering" experienced as a result of witnessing the events which led to the death of her fiance.

Plaintiff testified at depositions that she had worn an engagement ring before the accident and since, and that "I never take it off." As part of their cohabitation arrangement, plaintiff and her fiance maintained a single checking account from which their bills were paid. Each owned a life insurance policy with the other as named beneficiary. They had jointly purchased an automobile. Plaintiff also testified to some extent about the personal interaction between them, including how Burwell considered them to be already married and would introduce plaintiff as his wife.

This case is governed squarely by the holding and rationale of Portee. Notwithstanding plaintiff's proximity to the accident, her complaint does not allege, nor do her factual allegations support, a cause of action based on bodily injury or sickness resulting from fright or apprehension of danger to herself. See Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965). Plaintiff's actions in assisting and comforting her fiance do not qualify her as a rescuer who becomes physically involved in an heroic effort to extricate another person from harm or otherwise prevent injury from occurring. See Eyrich v. Dam, 193 N.J. Super. 244, 473 A.2d 539 (App.Div.1984), certif. denied, 97 N.J. 583, 483 A.2d 127 (1984).

Nevertheless, it is clear that plaintiff was in the "zone of risk" of mental or emotional distress notwithstanding that no physical harm to her was actually threatened or apprehended by her. See Portee, supra, 84 N.J. at 94-97, 417 A.2d 521, citing Caputzal v. The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966), and the court's reliance therein on the "zone of risk" analysis espoused by Professors Harper and James.

Defendant's conduct must involve foreseeable risk of harm to a class of people that includes plaintiff. . . . In [some] cases . . . plaintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance that in turn is caused by defendant's conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons or forces of nature, or their own responses (where these things are foreseeable).

3 F. Harper, F. James and O. Gray, The Law of Torts § 18.4 at 692-93 (2d Ed.1986) (footnotes omitted).

The Supreme Court itself noted, in summary, that "there was no requirement in the Caputzal formula that the 'zone of risk' of mental or emotional distress coincide with a zone of risk of physical harm". Portee, supra, 84 N.J. at 95, 417 A.2d 521. Foreseeability is the key to imposing liability. Ibid. In this case, the foreseeability requirement can be ...

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