On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1764-06.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Stern and Waugh.
On leave granted, plaintiffs Robert R. Hope, Sr., and Diane J. Strauss appeal the dismissal on summary judgment of their claims for negligent infliction of emotional distress against defendant Royal Healthgate Nursing Home and Rehabilitation Center (Royal Healthgate). We affirm.
Robert and Diane are two of the three adult children of plaintiff Mary C. Hope.*fn1 Mary is incapacitated due to Alzheimer's related dementia. Robert is said to be her legal guardian,*fn2 as well as her guardian ad litem. Mary was a patient at the nursing home facility operated in Trenton by Royal Healthgate from July 1999 to November 2005.
According to plaintiffs, Russell Smith, a licensed practical nurse then employed by Royal Healthgate, subjected their mother to physical and sexual abuse between March and August 2004. Royal Healthgate claims that it first became aware of the allegations of abuse on or about August 18, 2004. Royal Healthgate immediately suspended Smith and later terminated his employment.
It appears from the record that none of the plaintiff children were aware of the alleged abuse at the time they claim it was taking place. In fact, a significant aspect of their claims is that the alleged abuse of their mother was not reported to them at all by Royal Healthgate, despite certain legal requirements discussed at length below. They did not learn about the allegations of abuse until October 2005, well over a year following Smith's termination, when Robert was contacted by a representative of the Mercer County Prosecutor about a victim statement for Smith's sentencing hearing. Robert then informed his siblings.
Plaintiffs commenced the present action against Royal Healthgate in July 2006 with the filing of a twelve count complaint. Count X, which is at issue on this appeal, contends that the plaintiff children "suffered severe harm and pain as a result of" Royal Healthgate's having "intentionally, recklessly, and/or negligently inflicted emotional distress" on them. Royal Healthgate filed its answer and affirmative defenses in December 2006.
In January 2008, Royal Healthgate moved for partial summary judgment, seeking dismissal of the plaintiff children's claims of negligent infliction of emotional distress. Royal Healthgate argued that the plaintiff children's claims were not viable because they failed to meet the "contemporaneous observation" requirement of Portee v. Jaffee, 84 N.J. 88 (1980). The plaintiff children opposed the motion, arguing they had viable claims for negligent infliction under Portee and also direct claims for negligent infliction based on Royal Healthgate's failure to notify them of the abuse.
The motion was heard and granted on March 14, 2008. Although not unsympathetic to the plaintiff children's arguments, the motion judge determined that he was bound by existing appellate precedent. The order of dismissal was entered on May 2, 2008. We granted leave to appeal on June 24, 2008.
An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008); C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57-58 (App. Div. 2006). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
The plaintiff children advance two arguments on appeal. First, they contend that they need not satisfy the requirements of Portee for bystander liability. While Portee liability is based upon a breach of duty to a third party, the plaintiff children contend that Royal Healthgate had a direct duty to them. Second, they contend that, even if they have only a Portee-type claim, the motion judge erred in determining that they need to satisfy the "contemporaneous observation" requirement under the unique circumstances of this case.
We first address the viability of the plaintiff children's claims under Portee, in which the Supreme Court "first recognized a cause of action for the negligent infliction of emotional injury experienced by a bystander who witnessed the wrongful death [or serious physical injury] of another person." Dunphy v. Gregor, 136 N.J. 99, 102-03 (1994). Portee established "a four-factor test for determining a cause of action for negligent infliction of emotional distress." Id. at 103. To prevail on such a claim, the claimant must demonstrate: "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between the 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, supra, 84 N.J. at 101.
The motion judge based his ruling in favor of Royal Healthgate on the plaintiff children's failure to satisfy the third factor of the Portee test, which is often referred to as the "contemporaneous observation" requirement. See, e.g., Jablonowska v. Suther, 195 N.J. 91, 103 (2008) (emphasis added), restating the four-factor test as follows:
A plaintiff now can maintain an independent cause of action for negligent infliction of emotional distress where (1) the defendant's negligence caused the death of, or serious physical injury to, another; (2) the plaintiff shared a marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress.
The plaintiff children suggest that New Jersey law permits the relaxation of the "contemporaneous observation" requirement in "unique factual situations." They rely on the Law Division's decision in Ortiz v. John D. Pittenger Builder, Inc., 382 N.J. Super. 552 (Law Div. 2004), which held that the requirement was satisfied when the plaintiffs witnessed the house fire in which their daughter and granddaughter, respectively, was burned to death, even though they did not see the actual incineration of the child. In fact, both plaintiffs had been in the house when the fire started and the grandmother was severely burned trying to find the child.
Relying on case law from other states, the Law Division concluded that "actual observation" is not required if there was "an experiential perception" of the event. Id. at 563 (quoting Landreth v. Reed, 570 S.W. 2d 486, 490 (Tex. Civ. App. 1978)). In this case, however, there was no such "experiential perception." In fact, the plaintiff children had no perception of the alleged abuse when it was ongoing or immediately thereafter. They only learned about it when informed by the Prosecutor's Office.
While we agree with the plaintiff children's assertion that the courts in New Jersey and other states have somewhat softened the "contemporaneous observation" requirement, e.g., the holding in Ortiz that it was sufficient to witness the house on fire, the cases relied upon by them do not ...