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Gangemi v. National Health Laboratories

June 28, 1996


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

Approved for Publication June 28, 1996.

Before Judges Dreier A.m. Stein and Cuff. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

The opinion of the court was delivered by


Plaintiff, Julie Gangemi appeals by leave granted from the dismissal of the count of her complaint alleging her right to damages under N.J.S.A. 2A:31-1 to -6 for the wrongful death of her sister, Rita Blasko, who was her sole sibling. Ms. Blasko died on March 11, 1992 of cervical cancer after her Pap smear test had been misdiagnosed to be negative by defendant National Health Laboratories. The error was not discovered for one and a half years, after which time treatment was fruitless. Ms. Blasko had never married, and plaintiff was the surviving next-of-kin.

Plaintiff was thirty-five years old when her sister died at the age of forty-one. The two sisters had always been very close and plaintiff considered her sister as her "confidant/advisor." The family had moved often when they were children, and plaintiff had no close childhood friends aside from her sister. Their mother had died in 1981. Plaintiff states that she particularly relied on her sister for counsel regarding her turbulent relationship with her husband, whom she had married when she was eighteen and divorced in 1981. After the divorce, plaintiff regularly sought her sister's advice in coping with the difficult "on-again/off-again" relationship she maintained with her husband. They visited each other weekly during the fifteen years plaintiff and her sister both resided in New Jersey, and every other week when plaintiff moved to Pennsylvania in 1988. They spoke on the telephone several times a week.

Plaintiff also relied on her sister for guidance regarding her career. Her sister had worked at a hospital for nineteen years until her death. After plaintiff's divorce, and after working for many years as a waitress, plaintiff also entered the health field as a lab technician. She found her sister's advice "invaluable" during this time.

In its motion for partial summary judgment, defendant had argued that plaintiff was not entitled to bring a claim under New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, because there was no evidence that she had suffered any pecuniary damages as a result of her sister's death. At the July 28, 1995 and August 11, 1995 arguments, however, the Judge questioned why no one had discussed whether a sister would be entitled to maintain a wrongful death action. Defendant's counsel explained that plaintiff was the decedent's next-of-kin, and he had assumed that she was the beneficiary under the statute. The Judge then referred to a case before the Appellate Division concerning the standing of a fiance. *fn1 Defendant noted the interrelationship between the Wrongful Death Act and the intestacy statute, and conceded that a sister could recover under the wrongful death act if she could show damages. The Judge, however, stated:

Neither of you really approached it from the way that I was concerned about ... It's possible the Appellate Division or the Supreme Court might in fact decide that such an item of damage should be available to a sister, to a boyfriend or girlfriend, to a cousin, to a neighbor who has done the same acts; that may be. But at present, based on the fact that Green versus Bittner in their language -- and the Supreme Court predicates it on the parent/child relationship -- I think as a trial level Judge I'm not at liberty to extend this to someone outside that scope, namely a sister.

The court appeared to be applying to this case the standing principles associated with a claim for negligent infliction of emotional distress, rather than the law governing a wrongful death plaintiff's ability to prove damages for the loss caused by the death. The Judge eventually explained that, while she believed plaintiff might have standing as a sibling, she understood Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1990), to require either dependency to support the pecuniary interest claim, or a parent/child relationship to sustain what she termed "the emotional claim." She therefore granted defendant's motion for summary judgment.

The trial court's concern regarding a sibling's ability to assert a claim under the statute was misplaced. Unlike the situation involving negligent infliction of emotional distress claims, standing in wrongful death actions is established, at least initially, by statute. The first sentence of N.J.S.A. 2A:31-4 reads:

The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same.

Thus, the statute clearly anticipates recovery for any qualifying family member, but excludes cohabiting fiances, friends, or neighbors who never could have standing under intestacy laws. Siblings such as plaintiff, who are entitled to take under the intestacy laws and who also can ...

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