On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1708-02.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Wecker and S.L. Reisner.
On March 26, 1989, the infant plaintiff, Leonora Mansour, was injured when an electric wok filled with hot liquid fell from a countertop and spilled its contents on her, causing serious injury. The wok was allegedly manufactured, in whole or in part, sold, or distributed by defendants Farberware, Inc., S.W. Farber, Inc., Federated Department Stores, Inc., Walter Kidde Company, Inc., Bruckner Manufacturing Corp., Sterns, Salton/Maxim Housewares, Inc., (collectively "Farberware") and Leviton Manufacturing Company, Inc.
On February 27, 2002, plaintiff Leonora Mansour, by her father and guardian ad litem, Mansour Mansour ("Leonora"), and Mansour Mansour individually ("Mansour") filed a products liability complaint against the alleged manufacturers and retailers of the wok, claiming the product was defective. Mansour individually also named plaintiffs' former attorney, Leslie Bierman, Esq., alleging professional negligence in his failure to file a complaint on Mansour's behalf for negligent infliction of emotional distress (also known as "bystander liability") under Portee v. Jaffee, 84 N.J. 88 (1980), and failure to advise Mansour to do so within the two-year statute of limitations generally applicable to negligence actions, N.J.S.A. 2A:14-2.*fn1
For purposes of these appeals, we accept the factual allegations as set forth by appellants in their opposition to attorney Bierman's summary judgment motion. Mansour was in the living room when the incident occurred and ran into the kitchen upon hearing his daughter Leonora scream, followed by a bang. Mansour heard her continuing screams and saw steam coming out of her body. He saw the wok, the lid, and water on the floor. Mansour first rushed Leonora into the bathroom shower and then to the hospital. About five hours later, he returned to the home and threw the wok and lid away.
Bierman filed a cross-motion for summary judgment, arguing that there was no basis for the malpractice claim against him because Mansour's claims against Farberware and Leviton for negligent infliction of emotional distress, if they existed,*fn2 were tolled by statute and therefore not time-barred.
Farberware, joined by Leviton, opposed Bierman's summary judgment motion on the ground that Mansour failed to state a Portee cause of action because he did not witness the accident, and in the alternative, if Mansour did have a Portee claim, the statute of limitations for such a claim was not tolled, leaving Bierman potentially liable for Mansour's damages as an injured bystander.*fn3
The judge granted Bierman's motion for summary judgment, holding that Mansour's allegations stated a cause of action under Portee, and that the statute of limitations for Mansour's Portee claim was tolled. On that basis, the judge concluded that Mansour had no malpractice claim against Bierman for failing to bring or advise Mansour to bring the claim within two years.
By leave granted, defendants Farberware and Leviton each appeal the summary judgment dismissing all claims against attorney Bierman. We have consolidated the Farberware and Leviton appeals in this opinion. Taken together, the appeals raise two questions: First, if we assume that the father's complaint states a cause of action under Portee (despite appellants' arguments to the contrary),*fn4 is the statute of limitations on such a claim tolled by N.J.S.A. 2A:14-2.1, for as long as the child's cause of action is tolled? Second, does a father who heard the screams of his infant child as she was scalded by hot water "witness" the incident for purposes of stating a Portee claim? We answer both questions "yes" and affirm the summary judgment dismissing Mansour's legal malpractice claim against attorney Bierman, who neither filed nor advised him to file a Portee claim within two years of the incident.
We note that none of the counts in the products liability complaint against Farberware and Leviton expressly alleges a claim for negligent infliction of emotional distress, apparently because plaintiff Mansour (and presumably his attorney) were of the belief that the statute of limitations had run on such a claim. It is in the several counts alleging liability against Bierman that Mansour spelled out the elements of a Portee claim against Farberware and Leviton, as well as the allegation that the statute had run. Thus the products defendants clearly have been on notice of that claim and have litigated fully the issue of its timeliness. There is no inherent unfairness, then, in permitting Mansour on remand to amend his complaint to more specifically allege his bystander liability claim against those defendants.
Here, as we said, defendants Farberware and Leviton responded to Bierman's motion for summary judgment by arguing in the alternative: first, that Mansour failed to state a Portee claim, but even if he did, the two-year statute was not tolled, the claim was time-barred, and Bierman must be held in.*fn5 On this appeal, all parties have fully briefed the question whether Mansour's allegations, if proved at trial, could support recovery under Portee.*fn6 All parties have assumed that the judge decided that question in plaintiff Mansour's favor. We therefore deem it appropriate and in the interest of fairness to the parties and judicial economy to decide that issue now.
Leviton argues that the father here does not meet the basic elements of a Portee plaintiff because he was not in the same room and did not see the wok fall on the child. In dismissing the malpractice claim because the Portee claim was not tolled, the judge essentially stated that he found that the complaint stated a valid cause of action, thus he was not ...