On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3273-01.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2004
On leave granted, plaintiff Barbara Maldonado appeals from a grant of partial summary judgment dismissing her claims for negligent and intentional infliction of emotional distress. Plaintiff's claim arose out of an accident on July 5, 1999, in which her seven-year-old son was hit by an automobile driven by defendant T'Chad Leeds and owned by the Church of Jesus Christ of Latter-Day Saints. The child was dragged and severely injured. Plaintiff witnessed the accident and has been diagnosed with post-traumatic stress and panic disorders.
In his oral decision on the motion, the trial judge found "as a matter of law" that the emotional distress claims should be dismissed because (1) plaintiff did not seek a medical evaluation or treatment until four years after the accident; (2) plaintiff's cause of action accrued on the day of the accident and the statute of limitations had run; and (3) plaintiff had made no distinction between negligent and intentional infliction of emotional distress.
In this appeal, plaintiff argues that the trial court erred in (1) finding that plaintiff did not incur severe emotional distress as a result of the accident; and (2) finding that the statute of limitations barred plaintiff's claims for negligent and intentional infliction of emotional distress. We reverse and remand.
On July 3, 2001, plaintiff, as guardian ad litem for the minor child, filed the initial complaint asserting claims on behalf of the child. On February 11, 2002, plaintiff filed an amended complaint, adding herself as an individual plaintiff and her claims for negligent and/or intentional infliction of emotional distress.
By December 2003, plaintiff and her son were both diagnosed as suffering from chronic post-traumatic stress disorder by Dr. Grigory Rasin. Plaintiff was also diagnosed with panic disorder. According to Dr. Rasin, plaintiff has continuing nightmares, "obsessive recollection of the accident" and was "in constant fear for the safety of her children." She exhibits "exaggerated startle responses" and three to four times a day she experiences "episodes of shakiness, development of paresthesias, shortness of breath and palpitations and feelings of fear." In addition, plaintiff attested to her "extreme anxiety," loss of appetite and weight loss. Although her symptoms are "incapacitating," Dr. Rasin noted that plaintiff has a "significant tendency to minimize problems." Notwithstanding Dr. Rasin's report, the trial judge dismissed plaintiff's claims for emotional distress.
We have carefully considered the entire record before us, and we are satisfied that the trial judge erred in finding "as a matter of law" that plaintiff's symptoms did not meet the standard for emotional distress.
In Portee v. Jaffee, 84 N.J. 88 (1980), the Court held that a mother who watched her seven-year-old son suffer and die when he became trapped in an elevator shaft could recover for a negligent infliction of emotional distress. The court thereby established that a "bystander" has an independent cause of action for emotional distress. A plaintiff alleging a Portee claim must demonstrate:
(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 stress.
"To be compensable, emotional distress must be 'sufficiently substantial to result in physical illness or serious psychological sequelae.'" Trisuzzi v. Tabatchnik, 285 N.J. Super. 15, 27 (App. Div. 1995) (quoting Eyrich v. Dam, 193 N.J. Super. 244, 253 (App. Div.), certif. denied, 97 N.J. 583 (1984)). Liability will be imposed only if the injury is "sufficiently palpable, severe, or enduring." Decker v. Princeton Packet, Inc., 116 N.J. 418, 431 (1989). Mere aggravation, embarrassment, an unspecified number of headaches, loss of sleep, and lack of interference with the every day routine do not, as a matter of law, constitute severe emotional distress. Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 368-69 (1988). Evaluation of emotional distress claims raises questions of law and fact involving both judge and jury. Id. at 367. "The court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved." Ibid. "Severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including... post[-]traumatic stress disorder." Taylor v. Metzger, 152 N.J. 490, 515 (1998) (quoting Poole v. Copland, Inc., 481 ...