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Dunphy v. Gregor

Decided: June 2, 1994.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 261 N.J. Super. 110 (1992).

Handler, Wilentz, Pollock, O'Hern, Stein, Garibaldi


The opinion of the Court was delivered by


Many states, including our own, recognize the tort commonly referred to as "bystander" liability. Bystander liability allows recovery for the emotional injury suffered by a person, who, as a bystander, witnesses the wrongful death or serious physical injury of another person with whom the bystander had a close, substantial, and enduring relationship. In this case, the central inquiry focuses on the nature of that relationship. The specific issue presented is whether bystander liability allows recovery by a person who was not legally married to a deceased victim but who cohabitated with and was engaged to marry the decedent.

The issue is sharpened by the conflicting opinions of the lower courts. The trial court ruled that an action for negligent infliction of emotional distress was not available to a claimant who was neither married to nor involved in an intimate familial relationship with the decedent. The Appellate Division ruled that a jury should be allowed to determine whether the relationship of cohabitants engaged to be married was the functional equivalent of an intimate familial relationship. 261 N.J. Super. 110 (1992). A Dissent in the Appellate Division expressed the view that only persons legally married would be entitled to such a cause of action. Id. at 125.

The appeal is before this Court as a matter of right because of the Dissenting opinion. R. 2:2-1(a)(2).


Eileen Dunphy and Michael T. Burwell became engaged to marry in April 1988 and began cohabitating two months later. The couple set a date of February 29, 1992, for their wedding. On September 29, 1990, the couple responded to a friend's telephone call for assistance in changing a tire on Route 80 in Mount Arlington. As Michael changed the left rear tire of the friend's car on the shoulder of the roadway, he was struck by a car driven by defendant, James Gregor. After being struck by the vehicle, his body was either dragged or propelled 240 feet. Eileen, who had been standing approximately five feet from Michael, witnessed the impact, and ran to him immediately. Realizing that he was still alive, she cleared pebbles and blood from his mouth to ease his breathing. She attempted to subdue his hands and feet as they thrashed about, all the while talking to him in an effort to comfort him. The following day, after a night-long vigil at Dover General Hospital, Eileen was told that Michael Burwell had died as a result of his injuries. Since the accident, Eileen has undergone psychiatric and psychological treatment for depression and anxiety. She instituted an action seeking to recover damages for the "mental anguish, pain and suffering" experienced as a result of witnessing the events that led to the death of her fiance.

Eileen testified at her deposition that both she and Michael had taken out life-insurance policies making each other beneficiaries. They had maintained a joint checking account from which they had paid their bills, and also they had jointly purchased an automobile. In addition, Michael had asked her several times to elope with him, and he had introduced her in public as his wife.


In Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), this Court first recognized a cause of action for the negligent infliction

of emotional injury experienced by a bystander who witnessed the wrongful death of another person. A mother suffered horrendous emotional trauma as a result of watching her seven-year-old son suffer a slow and agonizing death after becoming trapped in an elevator. The Court sustained the mother's right to bring a negligence action for the infliction of emotional injury against the landlord and the elevator company, although she herself had not been subjected to any risk of physical harm. Id. at 101. In recognizing a bystander's cause of action for the negligent infliction of emotional injury, the Court cited approvingly to Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), in which the California Supreme Court allowed a mother to recover damages for the emotional injury she had suffered from witnessing the wrongful death of her daughter. The California court, acknowledging that the mother had been a mere bystander to the tragedy, specifically noted that the horror of the event bore uniquely on her because the victim had been her own daughter and because she had been near the accident and had actually observed its occurrence. Those considerations shaped the standard adopted by the court to govern a cause of action for the infliction of emotional injury. Dillon, supra, 441 P.2d at 920.

In Portee, we adopted a similar standard. Portee set out a four-factor test for determining a cause of action for negligent infliction of emotional distress. For a bystander-claimant to prevail, the claimant must demonstrate "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between the plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." 84 N.J. at 101.

In Portee, we explained the importance of the existence of an intimate familial relationship between the plaintiff and the victim as the basis for recovery:

It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling. The genuine suffering which flows from such harm stands in stark contrast to the setbacks and sorrows of everyday life, or even to the apprehension of harm to another, less intimate person. The existence of a marital or intimate familial relationship is therefore an essential element of a cause of action for negligent infliction of emotional distress.

[Id. at 98-99 (footnotes omitted).]

The Appellate Division understood Portee to mean that the law "should not ignore the fact of a deep emotional attachment between . . . any two persons who share an adequately earnest emotional commitment in a relationship that is functionally equivalent to familial." 261 N.J. at 123-24. Accordingly, the majority below held that the marital or intimate-familial-relationship standard that was applied in Portee to a parent and child also encompassed the relationship between plaintiff and her fiance. Id. at 123.

The Dissent below interpreted the Portee requirement of a "familial relationship" as one restricted to marriage or blood ties. 261 N.J. Super. at 125 (Muir, J.A.D., Dissenting). It noted that the California court, which authored Dillon, supra, has since refused to extend the cause of action for negligently-inflicted emotional distress to persons in a cohabitant relationship. Ibid. (citing Elden v. Sheldon, 46 Cal. 3d 267, 758 P.2d 582, 250 Cal. Rptr. 254 (Cal. 1988)). The Dissent concluded that our courts should similarly limit bystander liability. Ibid.

As in this case, the plaintiff and the decedent in Elden were cohabitants and were involved in a relationship that the plaintiff claimed was similar to a marital relationship. 758 P.2d at 585. They were riding together in a car when it was struck by the defendant's car, throwing the decedent from the vehicle and fatally injuring him. The plaintiff brought an action to recover for the negligent infliction of emotional distress resulting from witnessing her fiance's fatal injuries. Id. at 582-83.

In rejecting the cohabitant's claim, the California Supreme Court stressed the need for a "sufficiently definite and predictable test to allow for consistent application from case to case." Id. at 587. It reasoned that to allow recovery for emotional distress to those outside of the victim's immediate family "would result in the unreasonable extension of the scope of liability of a negligent actor." Id. at 588. It determined that it must draw a "bright line" to limit the scope of liability of a negligent actor, and it therefore restricted bystander liability to persons who were legally married or related.

The court in Elden was reacting to the experience of the California courts with bystander liability under the Dillon standard. After Dillon, California courts had expanded nearly all the boundaries of liability set out in the several prongs of the Dillon analysis. See, e.g. Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (Cal. 1985) (permitting recovery even though injury-producing event was not sudden or accidental); Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (Cal. 1980) (eliminating "sudden occurrence element" for "direct victim" plaintiffs); Krouse v. Graham, 19 Cal. 3d 59, 562 P.2d 1022, 137 Cal. Rptr. 863 (Cal. 1977) (ruling that plaintiff need not visually perceive third-party injury to recover); Nazaroff v. Superior Court, 80 Cal. App. 3d 553, 145 Cal. Rptr. 657 (Cal. Ct. App. 1978) (broadening concept of contemporaneous observation). Elden thus came after a marked expansion of the applicability of bystander liability.

The California Supreme Court's perception that bystander liability had become too expansive and burdensome was exemplified in Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989), in which the California Supreme Court reinforced its holding in Elden. In Thing, the mother of a child who had been struck by a car and seriously injured sought recovery for the emotional distress she suffered when, after being told about the incident, she rushed to her child's side and found him lying in the roadway. In denying the mother's right to recover in those circumstances, the court rejected the idea that foreseeability alone

should determine liability, observing that Dillon provided virtually no limit on liability for nonphysical harm, id. at 826, and that since Dillon, California courts had given little consideration to avoiding the limitless exposure to liability created by the foreseeability test. Id. at 821. The court stressed the need for a clear rule by which courts may determine liability, and concluded that limiting recovery to persons closely related by blood or marriage was justified because those were the people most likely to endure severe emotional distress as a result of watching a loved one suffer. Id. at 828.

Although Thing clearly demonstrated the California Supreme Court's frustration with the ambitious expansion of bystander liability in the post-Dillon period, we note that that expansion was the product of liberal applications of the other prongs of the Dillon analysis, not of the intimate-familial-relationship prong. Indeed, the post-Dillon experience in California led one commentator to note that only the relationship prong related in any significant way to foreseeability. John L. Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries, 35 Hastings L.J. 477, 487-89 (1984). Thus, Elden and Thing, although surely indicating California's desire to rein in the outer limits of bystander liability, must be understood as products of California's somewhat idiosyncratic experience with the cause of action for bystander liability.

Our own experience does not parallel that of California. In general, our courts have applied all the elements of the Dillon-Portee test restrictively. Indeed, some of our cases applying Portee have interpreted the "marital or intimate familial relationship" requirement as referring to close relatives or immediate family members. E.g., Henderson v. Morristown Memorial Hosp., 198 N.J. Super. 418, 431, 487 A.2d 742 (App. Div.) (noting "the remedy afforded by Portee v. Jaffee is clearly designed to provide a recovery for plaintiff's emotional distress resulting from the death or serious bodily injury to a close relative"), certif

. denied, 101 N.J. 250 (1985). In Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244, 473 A.2d 539 (App. Div.), certif. denied, 97 N.J. 583 (1984), the court considered and rejected a claim for negligent infliction of emotional injury brought by a woman who had witnessed a circus leopard attack and kill the young child of a close friend and neighbor, who had been entrusted to her care for the afternoon. The woman's cause of action was based solely on her status as a bystander in witnessing the child's horrible death. The court concluded that her emotional injury would be compensable only if the court were to extend the Portee doctrine, which it refused to do. Id. at 259. Although the plaintiff had sustained severe emotional distress as an eyewitness to the fatal accident, she did not meet the relationship element of the Portee test because of the absence of intimate family ties between her and the victim.

We have similarly encouraged narrow applications of the other prongs of the Dillon-Portee test. Those restrictive applications include a requirement that the bystander contemporaneously observe both the wrongful act and its resulting harm. Carey v. Lovett, 132 N.J. 44, 62, 622 A.2d 1279 (1993) (ruling that father seeking to recover as bystander for malpractice that resulted in death of his child several days after the child's birth "must contemporaneously observe the malpractice and its effects on the victim"); Frame v. Kothari, 115 N.J. 638, 649, 560 A.2d 675 (1989) (requiring contemporaneous observation of both act of malpractice and fatal or gravely-injurious effects of that act on victim); Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 327, 571 A.2d 318 (App. Div.) (interpreting Portee as holding that "a bystander may not recover damages for emotional distress unless he has been present and has observed the actual injury inflicted on a member of his family"), certif. denied, 122 N.J. 188 (1990); Lindenmuth v. Alperin, 197 N.J. Super. 385, 484 A.2d 1316 (Law Div. 1984) (denying recovery for emotional distress of mother from death of her child three days after the child's birth); cf. Mercado v. Transport of New Jersey, 176 N.J. Super. 234, 237, 422 A.2d 800 (Law Div. 1980) (holding that Portee does not require close relative

to witness accident causing alleged emotional injury). We have likewise insisted on a strong showing that the emotional injury be severe. E.g., Carey, supra, 132 N.J. at 62 (requiring with respect to malpractice resulting in death of newborn, that "a mother must prove that she suffered emotional distress so severe that it resulted in physical manifestations or that it destroyed her basic emotional security"; and that a father "must be shocked by the results"); Frame, supra, 115 N.J. at 643 (noting that claim based on emotional injury must be associated with aftermath of accident, "such as bleeding, traumatic injury, and cries of pain"). ...

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