December 21, 2007
PAULA A. VARGAS AND LUIS VARGAS, AS ADMINISTRATOR AD PROSEQUENDUM ON BEHALF OF THE ESTATE OF MELISSA VARGAS, PLAINTIFFS, AND LUIS VARGAS, INDIVIDUALLY, PLAINTIFF-APPELLANT,
MILDRED QUINONES AND JOSE L. QUINONES, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only element of a Portee claim at issue in this appeal.
The Court held that this element was satisfied in Portee, where a mother observed her seven-year-old son trapped for four-and-a-half hours between the outer door and wall of an elevator, during which time the boy moaned, cried out and flailed his arms, eventually dying before he could be extricated from the elevator shaft. 84 N.J. at 91. In discussing the third element of the kind of negligent infliction of emotional distress claim recognized in that case, the Court stated:
Discovering the death or serious injury of an intimate family member will always be expected to threaten one's emotional welfare. Ordinarily, however, only a witness at the scene of the accident causing death or serious injury will suffer a traumatic sense of loss that may destroy his sense of security and cause severe emotional distress. As Justice Cardozo stated in his classic formulation, "The risk reasonably to be perceived defines the duty to be obeyed." Such a risk of severe emotional distress is present when the plaintiff observes the accident at the scene. Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened. The law of negligence, while it redresses suffering wrongfully caused by others, must not itself inflict undue harm by imposing an unreasonably excessive measure of liability. Accordingly, we hold that observing the death or serious injury of another while it occurs is an essential element of a cause of action for the negligent infliction of emotional distress. [Id. at 99-100 (citations omitted).]
The Court has applied this element of a Portee cause of action restrictively. In Frame v. Kothari, 115 N.J. 638 (1989), the Court rejected claims for emotional distress damages brought by parents of a child who died as a result of a doctor's alleged malpractice in failing to advise them to return the child to the hospital when he manifested symptoms of a severe head injury. After receiving this alleged advice, the parents allowed the child to go back to sleep, but were unable to awaken him four hours later. Id. at 641. After emergency surgery, the child died in the hospital the following morning. Ibid. The parents were not present at the time of the child's death. Ibid. In concluding that these circumstances could not satisfy the third element of a Portee cause of action, the Court stated:
Here, Mr. and Mrs. Frame were present during the 2:00 p.m. telephone conversation when Dr. Kothari negligently failed to diagnose their son's condition. The diagnosis, however, did not manifest itself in an immediate injury. It was not until four hours later that Mr. and Mrs. Frame discovered their son in a moribund condition. Eleven more hours elapsed before they learned through a telephone call from the hospital of his death. The chain of circumstances, although deeply tragic, were not "shocking." In a sense, their situation was like that of parents who witnessed the pain and suffering of their child due to illness or injury without awareness that a medical misdiagnosis was contributing to their child's continued pain and suffering. [Id. at 650.]
Similarly, in Carey v. Lovett, 132 N.J. 44, 61 (1993), the Court held that to prevail in a Portee negligent infliction of emotional distress claim based on alleged malpractice that resulted in the death of his child several days after birth, a father had to show that he "contemporaneously observe[d] the malpractice and its effect on the [child]."
Synthesizing its prior decisions as well as decisions of this court, the Court has observed that "restrictive applications [of the elements of a Portee claim] include a requirement that the bystander contemporaneously observe both the wrongful act and its resulting harm." Dunphy v. Gregor, 136 N.J. 99, 107 (1994).
It is clear that Mr. Vargas did not "contemporaneously observe" either his wife's car accident or the death in utero of the fetus she was carrying. Mr. Vargas was at home when the accident occurred. He did not arrive on the scene until ten to thirty minutes later, after Mrs. Vargas had been removed from the car and placed in an ambulance, and his observations were not significantly different from what they would have been if he had first observed her when she arrived at the hospital. Moreover, the death of the fetus was not immediately apparent upon Mr. Vargas's arrival at the accident scene. It was only after tests were performed at the hospital that the attending doctors concluded the fetus was probably not viable, and this conclusion was not confirmed until the fetus was delivered by a caesarian section performed hours after the accident.
Plaintiff relies upon cases such as Ortiz v. John D. Pittinger Builder, Inc., 382 N.J. Super. 552 (Law Div. 2004), in which courts allowed bystander claims to proceed where claimants suffered emotional distress from observing fires that resulted in the deaths of close relatives even though the smoke and flames from the fire prevented them from actually seeing the victims. However, this line of case rests on the recognition that "fire cases are unique because 'the flames are likely to hide the victims from the view of those present at the scene.'" Id. at 561 (quoting Stump v. Ashland, Inc., 499 S.E.2d 41, 49 (W. Va. 1997)). Consequently, the requirement that plaintiff must have observed "the death or injury at the scene of the accident," Portee, supra, is satisfied by showing that the plaintiff was "sensorially aware, in some important way, of the [fire] and the necessarily inflicted [harm to the victims]." Ortiz, supra, 382 N.J. Super. at 561 (emphasis omitted) (quoting Wilks v. Horn, 3 Cal. Rptr. 2d 803, 807 (Ct. App. 1992)). In contrast, Mr. Vargas was not "sensorially aware" in any way of Mrs. Vargas's car accident and the resulting harm to the fetus because he was at home when the accident occurred.
Finally, Mr. Vargas argues, relying upon Giardina v. Bennett, 111 N.J. 412 (1988), that he is not required to establish the Portee elements of a cause of action for negligent infliction of emotional distress because his claim is based on the stillbirth of a fetus. However, although this argument would be correct as applied to Mrs. Vargas's emotional distress claim, see Carey, supra, 132 N.J. at 59, a father's emotional distress claim based on the stillborn delivery of a fetus is treated differently than a mother's claim, id. at 60. As previously discussed, the father is required to establish all the elements of Portee cause of action, including that he "contemporaneously observe[d] the malpractice and its effects upon the [fetus]." Id. at 61; accord Gendek v. Poblete, 139 N.J. 291, 299-300 (1995).
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