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Hope v. Royal Healthgate Nursing and Rehabilitation Center


December 22, 2008


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1764-06.

Per curiam.



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 support their argument that it should be relaxed completely in this case.

For example, in Croft v. Wicker, 737 P. 2d 789, 791-92 (Alaska 1987), the Supreme Court of Alaska permitted a Portee-type claim to proceed where parents had seen the defendant take their young daughter out on a three-wheeler and saw their daughter's distress when she returned after defendant had sexually assaulted her, even though they had not witnessed the actual sexual assault. In Tommy's Elbow Room v. Kavorkian, 727 P. 2d 1038, 1040-43 (Alaska 1986), the Supreme Court of Alaska held that a Portee-type claim could be made when the plaintiff did not actually witness the automobile accident involving his daughter, but had passed the accident scene and subsequently witnessed her being removed from the car when he returned to the scene.

In this case, had the plaintiff children actually witnessed distress on the part of their mother at the time the alleged abuse was taking place, but only learned about the cause of the distress when contacted by the Prosecutor's Office, this line of cases would support their position. However, under the actual facts of this case, they do not.

To extend Portee liability to a situation like the one before us would, in our view, be inconsistent with the public policy that informed the Supreme Court's decision to impose the "contemporaneous observation" requirement in Portee in the first place. In fashioning the Portee, supra, remedy for "contemporaneous observers" of the tortious conduct, the Court sought to provide a remedy only for those whose distress goes beyond that ordinarily experienced when one learns of the death or serious injury of "an intimate family member." 84 N.J. at 99.

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." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928); see 2 F. Harper & F. James, [The Law of Torts] § 18.2 at 1018 [(1956)]. 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 (emphasis added).]

See also Carey v. Lovett, 132 N.J. 44, 57-58 (1993) ("Additional concerns about speculative results or punitive liability have led us to limit such claims to the observation of shocking events."); Frame v. Kothari, 115 N.J. 638, 643 (1989) ("To justify recovery, the plaintiff should observe the kind of result that is associated with the aftermath of an accident, such as bleeding, traumatic injury, and cries of pain.").

Consequently, we affirm the order of the motion judge to the extent it dismisses the plaintiff children's Portee-type claims.


We turn now to the plaintiff children's argument that they have direct claims for negligent infliction of emotional distress against Royal Healthgate based upon a duty owed to them, rather than a Portee claim which is derivative and based on a duty owed to their mother. Such a direct claim does not require satisfaction of the full four-factor Portee test, including the "contemporaneous observation" requirement.

Application of the Portee criteria to all emotional distress cases would preclude recovery when a plaintiff's distress is the "direct" result of defendant's negligence. Obviously, when a third party has not been injured, the first and third Portee factors can never be satisfied. These Portee factors, however, limit recovery for emotional distress only in the "bystander" cases, and only when defendant's duty to the bystander originates in a duty to a third party. [Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 536 (1988).]

The question then becomes whether Royal Healthgate had a direct duty to Robert or Diane, or both. The plaintiff children premise the required duty on the provisions of N.J.S.A. 30:13-1 to -11, which is commonly referred to as the "Nursing Home Bill of Rights."*fn3 N.J.S.A. 30:13-3(h) provides that every nursing home has the responsibility to "[e]nsur[e] compliance with all applicable State and Federal statutes and rules and regulations."

The plaintiff children point to the provisions of 42 C.F.R. § 483.10(11)(i)(A) and (B), as creating a duty owed to them. That regulation provides as follows:

(11) Notification of changes. (i) A facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is --

(A) An accident involving the resident which results in injury and has the potential for requiring physician intervention;

(B) A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications). [Ibid.]

See also N.J.A.C. 8:39-13.1(c) ("The facility shall notify any family promptly of an emergency affecting the health or safety of a resident."). In addition, they argue that we should find a common law duty on the part of a nursing home to notify the adult children of a resident of an incident such as the one at issue here.

In opposition, Royal Healthgate points to our decision in Brehm v. Pine Acres Nursing Home, Inc., 190 N.J. Super. 103 (App. Div. 1983), which held that the provisions of the Nursing Home Bill of Rights do not apply, either directly or through a common law right, to the spouse of a resident upset by the violation of the resident's rights.

The final error we find was the trial judge's denial of defendants' motion for judgment notwithstanding the verdict on the claim of Bernadette Brehm individually. We do not doubt that, as the jury found, Bernadette Brehm suffered emotional distress by reason of defendants' misconduct. But the misconduct related to Harold Brehm's transfer from Pine Acres and the further circumstance that he was never readmitted to that facility. Bernadette Brehm's emotional distress was incidental to the wrong done her husband. Though we are aware that a party may sometimes recover for emotional distress incidental to the physical injury to another person or for emotional distress intentionally caused the plaintiff himself, we see nothing in the Nursing Home Bill of Rights or in the common law which indicates that there should be a cause of action in favor of Bernadette Brehm for defendants' conduct. See Portee v. Jaffee, 84 N.J. 88, 101 (1980); Hume v. Bayer, 178 N.J. Super. 310, 314 (Law Div. 1981). Here defendants violated a duty owed Harold Brehm. While this no doubt caused Bernadette Brehm emotional distress, there must be some reasonable limitation on who may be awarded damages for improper conduct. In many situations wrongful conduct by a person may cause emotional distress to third parties. For example, wrongful discharge of an employee may cause severe emotional distress to the employee's spouse. Similarly, medical malpractice resulting in injury to a patient could result in emotional distress to the patient's spouse. In our view extension of the right to recover to Bernadette Brehm in this case would be unreasonable. See Russell v. Salem Transp. Co., 61 N.J. 502 (1972). Finally, we point out that Bernadette Brehm did not have standing individually to recover damages from Pine Acres for a violation of the Nursing Home Bill of Rights. See Profeta v. Dover Christian Nursing Home, 189 N.J. Super. 83 (App. Div. 1983). [Id. at 109-10.]

We note, however, that the provision violated in Brehm, N.J.S.A. 30:13-6, required that thirty days notice of non-emergent transfer or discharge be given to the patient or, in the case of an adjudicated incapacitated person, the guardian. Unlike the provisions of 42 C.F.R. § 483.10(11)(i)(A) and (B) and N.J.A.C. 8:39-13.1(c), quoted above, there is no specific requirement in N.J.S.A. 30:13-6 that notice be given to family members generally.

In Profeta v. Dover Christian Nursing Home, 189 N.J. Super. 83 (App. Div.), certif. denied, 94 N.J. 576 (1983), we held that there was no right of action under the Nursing Home Bill of Rights for a daughter and grandson distraught by a nursing home's failure to notify them of the nursing home patient's serious, and eventually fatal, illness. The plaintiffs in Profeta also relied upon the requirements of N.J.S.A. 30:13-3(h), that nursing home's comply with applicable rules and regulations, pointing to N.J.A.C. 8:30-2.4(a),*fn4 which required nursing homes to establish policies and procedures "for notifying sponsors or next of kin in the event of significant changes in patient's status." That duty is similar to the one contained in the Federal regulation, and the same as the State regulation quoted above.

After reviewing the language and purpose of the statute, we concluded in Profeta that the right of recovery found in N.J.S.A. 30:13-8 is available only to the resident or someone asserting his legal rights. Profeta, supra, 189 N.J. Super. at 88.

After careful consideration of the purposes and policies of the act we conclude that a proper interpretation of "persons whose rights are defined herein" pertains only to a resident or his legal representative.

N.J.S.A. 30:13-1 announces the legislative thesis underlying the entire act:

The Legislature hereby finds and declares that the well-being of nursing home residents in the State of New Jersey requires a delineation of the responsibilities of nursing homes and a declaration of a bill of rights for such residents.

The provisions delineating the responsibilities of nursing homes (N.J.S.A. 30:13-3) and declaring the rights of their residents (N.J.S.A. 30:13-5) are the heart of the act. The remaining provisions serve only to implement these two sections. The sense of a statute is to be gathered from the whole of the expression. Once the "internal sense" of the law is clear it will prevail over the words of the act and "particular terms are to be made responsive to the essential principle of Law." The act at issue is clear in its purpose, and that is to advance the well-being of nursing home residents. Because the sense of the law, gathered from all internal indicia, is to aid residents, we believe the phrase "persons . . . whose rights are defined herein" was intended to refer only to the resident or one asserting rights in his stead, such as a legal guardian. The asserted right of the next of kin to receive medical information concerning the resident if deemed advisable and to be informed of any significant change in the resident's status, support our conclusion. Both are primarily designed to aid the resident, when he or she is either incapable of acting in a meaningful manner on the information given or is likely to become incapable of so acting. For this reason we believe it is clear that the Legislature intended only the resident or his proxy to be able to vindicate infringement of these rights by an action for damages. Had the Legislature intended to confer this right on others, it would have explicitly done so. We therefore conclude that plaintiffs have no standing to bring this suit under the act reviewed. [Id. at 88-89 (citations omitted) (emphasis added).]

Our holding in Profeta does authorize Robert, as the apparent holder of his mother's power-of-attorney, to bring suit to vindicate his mother's rights under the Nursing Home Bill of Rights, but it does not authorize him to bring suit on his own behalf. We note that Robert has, in fact, brought numerous claims on his mother's behalf in the complaint.

Because the Legislature has not amended the statute to provide a cause of action for relatives such as the plaintiff children during the twenty-five years since our decisions in Brehm and Profeta, we decline to reconsider the merits of that decision. See Lemke v. Bailey, 41 N.J. 295, 301 (1963) ("[C]onstruction of a statute by the courts, supported by long acquiescence on the part of the Legislature, or continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent.").

In Brehm, we also held that there was no common law right of action in such circumstances because there was no duty. Brehm, supra, 190 N.J. Super. at 110. The existence of a duty is one of the requirements of the cause of action. See Williamson v. Waldman, 150 N.J. 232, 239 (1997). The plaintiff children urge us to revisit the Brehm holding in light of the particular circumstances of this case.

The development of our law with respect to claims for negligent infliction of emotional distress has been "incremental." Picogna v. Bd. of Educ., 143 N.J. 391, 397 (1996). The cause of action "involves traditional concepts of duty, breach, and causation." Williamson, supra, 150 N.J. at 239; see also Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (1989) ("The tort involving the negligent infliction of emotional distress can be understood as negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care."). Duty "is analyzed in terms of foreseeability." Ibid.

In Caputzal v. Lindsay Co., 48 N.J. 69, 76 (1966), relied upon in Decker, the Supreme Court held that "liability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted." The Court in Decker, supra, emphasized the importance of both foreseeability and severity in this context:

While the foreseeability of injurious consequences is a constituent element in a tort action, foreseeability of injury is particularly important in the tort of negligent infliction of emotional harm. This reflects the concern over the genuineness of an injury consisting of emotional distress without consequent physical injury. In these situations, there must be "an especial likelihood of genuine and serious mental distress, arising from special circumstances, which serves as a guarantee that the claim is not spurious." In emotional distress cases, there has been "a constant concern about the genuineness of the claim."

The progression has been from denying recovery unless the emotional distress is accompanied by physical impact, to permitting recovery if the emotional distress results in physical injury. More recently, we have found a sufficient guarantee of genuineness, even in the absence of physical injury, if the plaintiff perceives an injury to another at the scene of the accident, the plaintiff and the victim are members of the same family, and the emotional distress is severe. [Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 365 (1988).]

Thus, recovery for negligent infliction of emotional harm requires that it must be reasonably foreseeable that the tortious conduct will cause genuine and substantial emotional distress or mental harm to average persons.

Unless a plaintiff's alleged distress is truly genuine and substantial, the tort of negligent infliction should not be broadened to permit recovery of damages. Hence, the genuineness and severity of emotional distress can present threshold questions of law. In cases involving claims relating solely to emotional distress, [t]he severity of the emotional distress raises questions of both law and fact. Thus, 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. [Buckley, supra, 111 N.J. at 367.] [116 N.J. at 429-31 (citations omitted) (emphasis added).]

While we believe that a nursing home could reasonably foresee that the failure to inform close family members of the sexual abuse of their relative in the nursing home would have the potential to cause severe distress, we do not find sufficient evidence of the required severity in the record to warrant the extension of the cause of action in this case.

In its motion, Royal Healthgate raised the issue of the plaintiff children's ability to satisfy the severity requirement of their negligent infliction cause of action. In support of that argument, it attached to counsel's certification excerpts from the depositions of the plaintiff children. The following excerpt came from Robert's deposition:

Q: Since October of 2005 into the present, which is not September of 2007, you have not sought any counselor or physician's help dealing with this?

A: No.

Q: Can you tell me how it has had an impact on you physically, has there been any physical effects?

A: No.

Q: How about mentally, any mental effects?

A: No.

Q: And how about emotionally, any emotional effects?

A: Yes.

Q: In what respect?

A: I wake up at night and it's the first thing I think of.

Q: Anything else?

A: No.

Diane, who has suffered from asthma for over twenty years, attributed an increase in her use of an inhaler to her distress concerning her mother. She testified that she mentioned it to her pulmonologist, who responded that the cause "[c]ould be the stress from it." She never discussed such stress with her family physician. She had not consulted any mental health professionals with respect to her distress. She has had a hard time sleeping at night, but had not sought any treatment.

The plaintiff children submitted no certifications on the issue of their distress in response to the motion. Instead, the letter brief in opposition argued that the trial judge should not consider the issue because the discovery period was not over. However, on the issue of their own distress, the plaintiff children were in possession of the necessary facts and were in the best position to refute Royal Healthgate's allegations, if there was a basis to do so. See R. 4:46-5. Consequently, their own deposition testimony stands uncontradicted in the record.

We find, as a matter of law, that the distress described by the plaintiff children, assuming, as we must for summary judgment purposes, that they could prove it at trial, does not rise to the level required for a claim of negligent infliction of emotional distress. Such distress must be "so severe that no reasonable man can be expected to endure it." Runyon v. Smith, 163 N.J. 439, 444 (2000) (quoting Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)). See Wigginton v. Servidio, 324 N.J. Super. 114, 123-24, 132 (App. Div. 1999), certif. denied, 163 N.J. 11 (2000) (finding plaintiff's sixty-day medical leave of absence from work and suffering from "nausea and diarrhea" and depression sufficiently severe to allow her to proceed to trial on an emotional distress claim). The problems described by the plaintiff children do not fall into that category.

Consequently, we also affirm the decision of the motion judge to the extent it dismissed the plaintiff children's purported direct claims for negligent infliction of emotional distress.*fn5


In summary, we affirm the order of the trial judge dismissing those aspects of the plaintiff children's complaint that allege causes of action for negligent infliction of emotional distress, whether a Portee type claim based upon a duty owed to their mother or a direct claim based upon a duty owed to them individually.


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