On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-902-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2007
Before Judges Skillman and Winkelstein.
On March 14, 2003, plaintiff Paula Vargas's car collided at an intersection in Paterson with a car operated by defendant Mildred Quinones. Mrs. Vargas was eight months pregnant at the time. After the accident, paramedics removed Mrs. Vargas from her car and placed her in an ambulance.
Mrs. Vargas's husband, plaintiff Luis Vargas, was at home when the accident occurred. His mother and sister informed Mr. Vargas of the accident by telephone, and he drove to the scene. Mrs. Vargas was already in the ambulance, waiting to be driven to the hospital, when he arrived. Mr. Vargas observed his wife in the ambulance bleeding, crying hysterically and holding her stomach. According to Mr. Vargas, he also "noticed what appeared to be a wet stain on [his wife's] clothing making me think that her water was caused to break." He then followed the ambulance to the hospital, where it was determined the fetus had died in utero in the accident. A doctor performed a caesarian section to remove the fetus. Mr. Vargas did not observe this procedure. However, he was allowed to hold the fetus after the delivery.
Plaintiffs subsequently brought this negligence action against Mildred Quinones and Jose Quinones, the owner of the car Mildred was driving at the time of the accident. Mrs. Vargas asserted a claim for her own personal injuries, and Mr. Vargas asserted a per quod claim for loss of his wife's consortium. In addition, plaintiffs asserted wrongful death and survivorship claims for the deceased fetus, who they named Melissa Vargas. Lastly, both Mr. and Mrs. Vargas asserted claims for emotional distress based on the death of the fetus.
The trial court granted defendants' motion for a partial summary judgment dismissing the survivorship and wrongful death claims and Mr. Vargas's claim for his emotional distress caused by the death of the fetus. Subsequently, the parties entered into a settlement of all plaintiffs' claims except for Mr. Vargas's emotional distress claim. Consequently, this appeal is solely from the part of the partial summary judgment dismissing that claim.
Mr. Vargas's claim is what our courts have sometimes referred to as a "Portee" bystander claim for negligent infliction of emotional distress. See Dunphy v. Gregor, 136 N.J. 99, 102-04 (1994). To prevail on such a claim, a bystander must establish four elements:
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. [Portee v. Jaffee, 84 N.J. 88, 101 (1980) (emphasis added).]
The trial court granted defendants' motion to dismiss Mr. Vargas's Portee claim based on the fact that he did not observe the death of the fetus at the scene of the accident. Therefore, that is the ...