February 24, 2009
ESTATE OF JOSEPH SENATORE AND MARY LEE SENATORE, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS, AND STATE FARM INDEMNITY COMPANY AS SUBROGEE OF JOSEPH J. SENATORE, AND STATE FARM FIRE & CASUALTY COMPANY AS SUBROGEE OF JOSEPH AND MARY LEE SENATORE, PLAINTIFFS,
GENERAL MOTORS CORPORATION AND JIM SALERNO PONTIAC BUICK, INC., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-0398-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges Stern, Rodríguez and Payne.
Mary Lee Senatore and the Estate of Joseph J. Senatore*fn1 (plaintiffs) appeal from a grant of summary judgment dismissing Mary's claim for negligent infliction of emotional distress. This relief was sought in connection with product liability claims against General Motors Corporation (GM) and Jim Salerno Pontiac Buick, Inc. (Salerno) (collectively "defendants"). Defendants cross-appealed from the denial of their motion to exclude the testimony and report of plaintiff's treating psychologist. We reverse on the appeal and affirm on the cross-appeal.
These are the salient facts. On December 25, 2002, Joseph Senatore heard a loud noise as he attempted to start his 1998 Buick Park Avenue, which was manufactured by GM and sold by Salerno. Joseph's son and his wife Mary went into the garage, where the car was parked, to investigate. Mary saw flames coming from the front of the Buick "around the tire area."
According to Mary, she feared for her own safety and the safety of her family members present in the garage. She alleged that she "just stood there immobile" because she was "terrified." She feared that she or her family might be injured by the fire or an explosion. Fortunately, she and her family escaped injury. However, the garage and attached house were completely destroyed by the fire. The parties have stipulated that "the fire was the result of a condition described in General Motors Product Safety Recall Bulletin Number 03054 . . . which provided in relevant part that certain vehicles could experience fuel pressure regulation diaphragm leaks . . . ."
Plaintiffs sued GM and Salerno. This suit was consolidated with subrogation actions brought by State Farm Indemnity Company and State Farm Fire & Casualty Company, plaintiffs' automobile and home insurance carriers respectively, to recover approximately $400,000 in first party insurance payments. In 2006, Joseph died of causes unrelated to the fire. His estate was substituted as a party.
After the fire, Mary began attending psychotherapy sessions with Irene E. Parisi, Ph.D., a licensed professional psychologist, who opined that Mary "was experiencing significant difficulty in coping with feelings of depression and anxiety in relation to the fire which destroyed her home . . ." According to Parisi, Mary felt "totally overwhelmed" and "was grieving the loss of her home, furnishings, memorabilia, and her pet cat." The therapy "focused on verbalizing feelings associated with the loss, and adjusting to the stressful process of rebuilding her home, as well as coping with anxiety about her future." Treatment was terminated in March 2003.
Following her husband's death, Mary returned to therapy. According to Dr. Parisi's original report dated December 19, 2006:
[Mary] was again struggling with feelings of loss and grief, this time in relation to the unexpected illness and death of her husband, coupled with regret and anger that so much of her husband's last years had been spent coping with the stressful process of rebuilding after the loss of their home. Thoughts of the fire have apparently intensified again, with an exacerbation of the emotional pain she had experienced several years earlier as she again finds herself adjusting to a significant and unexpected changed in her life.
In a follow-up report dated December 22, 2006, Parisi stated that:
[Mary's] symptoms are consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood (309.28 DSM IV), and are considered, within the realm of medical probability, to be causally related to the fire which damaged her home on December 25, 2002. Although the symptoms described had diminished to some degree in response to the patient's participation in psychotherapy in late 2003 and early 2004, their underlying residuals were apparently exacerbated by the death of her husband in August, 2006, resulting in her return to therapy. At this point, it is anticipated that this woman's condition is permanent, although determination of the extent of residual symptoms cannot be definitively made until the present course of treatment is completed.
Both of Dr. Parisi's reports were served on the defendants several weeks after the September 29, 2006 discovery end date.
Defendants moved to exclude Dr. Parisi's reports on the grounds that, despite several attempts to obtain the reports, they were provided after the close of discovery and plaintiffs "made no showing of diligence or exceptional circumstances that would justify permitting them to supplement their discovery at this late date with the report[s] . . . ." The judge denied the motion and allowed defendants to conduct an independent medical examination of Mary, depose Dr. Parisi, and amend their answer. As a result, Mary and Dr. Parisi were deposed. This ruling was memorialized in an order dated January 26, 2007.
At Mary's deposition, the following exchange occurred:
[DEFENSE ATTORNEY]: When you say you're not handling things well, are you referring to the stress of dealing with the loss of the home?
[MARY LEE SENATORE]: I wasn't able to sleep. I kept having, and still do, extreme difficulty sleeping. I kept getting nauseous. If I had to make a decision about something, I would get tense. I would start shaking. I would shiver. I felt exhausted. I couldn't even cook dinner half of the times because I just felt so exhausted by all of the problems that were facing me, all of the things that I had to do. I knew if I picked out one thing, I would get one thing, but then tomorrow I would have to pick out something else because they were constantly calling and saying, the plumber is coming, we need this. The electrician is coming; we need to know your choices on that, and it was a constant thing. I had to wind up sleeping with Tums on my night stand because I would wake up in the middle of the night with dreams, with thoughts and I would get nauseous.
All subrogation claims, as well as plaintiffs' claim for property damage not covered by insurance, were settled prior to trial. The only extant claim is Mary's emotional distress claim. Defendants moved for summary judgment with respect to Mary's claim for negligent infliction of emotional distress.
The judge granted the motion for summary judgment by an order dated April 20, 2007, which he amplified with a written opinion. The judge stated in his oral opinion:
[I]t must be noted that there were no personal injuries which occurred to any person, family member or otherwise arising from the fire. They were all fortunate to get out.
Certainly, it created stress. I do not in any way minimize the pain that Mrs. Senatore has suffered, but I believe that that pain cannot be, as a matter of law, associated with liability upon the defendants.
On appeal, plaintiffs contend that summary judgment was improperly granted because, "when viewed in a light most favorable to plaintiff the R. 4:46-2 motion record shows that plaintiff's claim of emotional distress presents a fact question for the jury, not a matter of law." Plaintiffs also contend that the judge applied the incorrect legal standard.
Plaintiffs rely on Falzone v. Busch, 45 N.J. 559 (1965), to support their assertion that summary judgment was improper because Mary's claim for emotional distress presents a question of fact. In Falzone v. Busch, the Supreme Court recognized for the first time that a witness to an accident could recover damages for emotional trauma that resulted in bodily injury or sickness, even if she was not physically harmed in the accident. Id. at 569. The Court held:
[W]here negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability. [Ibid.]
Thus, a plaintiff can recover damages if the plaintiff can demonstrate that the defendant's negligent conduct placed the plaintiff in reasonable fear of immediate personal injury, which gave rise to emotional distress resulting in a substantial bodily injury or sickness. Ibid.
This holding rejected the prior rule that a plaintiff could recover for emotional anguish arising from a defendant's negligent conduct only when some physical impact on the plaintiff accompanied the emotional harm. Ward v. W. Jersey & Seashore R.R. Co., 65 N.J.L. 383, 384 (Sup. Ct. 1900); Greenberg v. Stanley, 51 N.J. Super. 90, 105-06 (App. Div. 1958). Following the Falzone decision, courts considered emotional distress foreseeable where it occurred to a plaintiff within the "zone of risk" created by negligent conduct, so long as substantial bodily injury or sickness also resulted from the fright. Caputzal v. Lindsay Co., 48 N.J. 69, 76 (1966). The plaintiff in Caputzal suffered a heart attack as the result of his fear that he had been poisoned by drinking water discolored by a defective water softener. Id. at 71-72. The Supreme Court held plaintiff's extraordinary reaction to the product defect was not, as a matter of law, a foreseeable reaction to the product. Id. at 76. The Court stressed that liability should be denied as a matter of law where a plaintiff's emotional reaction to circumstances brought about by a defective product is not the foreseeable reaction of an average buyer. Ibid.
The Supreme Court later extended the Falzone holding to bystanders who were not at risk of physical harm, but who witnessed the death or serious bodily injury of a close family member. Portee v. Jaffee, 84 N.J. 88, 101 (1980). The Court cautioned that liability for the emotional consequences of a party's negligence should be strictly limited to conduct that is reasonably likely to have a significant negative effect on the average person's "basic emotional stability." Ibid. To extend liability beyond that point would welcome "speculative results" and "inflict undue harm by imposing an unreasonably excessive measure of liability." Id. at 97, 99. Thus, claims for the negligent infliction of emotional distress are permitted only in very limited circumstances.
We have consistently rejected claims for negligent infliction of emotional distress where the distress is the result of circumstances beyond those already recognized by our courts, or where a plaintiff is unable to demonstrate that her distress was sufficiently severe and enduring to trigger liability. See Decker v. Princeton Packet, Inc., 116 N.J. 418, 431 (1989) (denying liability where plaintiffs allegedly suffered emotional distress as the result of the false publication of a family member's obituary); Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 368-69 (1988) (denying recovery for emotional distress allegedly suffered upon defendant's wrongful dishonor of plaintiff's check); Caputzal, supra, 48 N.J. at 76-79.
There is no recovery unless the distress a plaintiff experiences resulted from the fear of being harmed while in the "zone of danger." Russo v. Nagel, 358 N.J. Super. 254, 270 (App. Div. 2003) (denying liability because plaintiff did "not allege, nor [did] the factual allegations support, a cause of action based on bodily injury or sickness resulting from fright or apprehension of danger"). Moreover, in order to survive summary judgment in a "zone of danger" case, a plaintiff must present medical evidence that links a severe psychological condition to plaintiff's fear for her personal safety. Falzone, supra, 45, N.J. 564-70.
A severe psychological condition resulting from the negligent infliction of emotional distress must be reasonably foreseeable to the average person experiencing the tortious conduct. Decker v. Princeton Packet, supra, 116 N.J. at 430; Caputzal, supra, 48 N.J. at 76. In other words, "[i]f the psychic stimulus was not calculated to injure an average person, there is no negligence and no liability for injury suffered by an idiosyncratic plaintiff." Id. at 77.
Plaintiffs argue that the trial judge was required to determine whether there was a genuine issue of fact as to whether Mary suffered substantial mental distress caused by her proximity to the "zone of risk or danger" within the meaning of Falzone. If so, "the judge was obligated not to decide that critical issue, but, rather, to defer it to the jury." We agree.
Here, applying that standard to Mary's claim of emotional distress, and viewing the summary judgment motion record in the light most favorable to her, we conclude that to some extent her psychological injury was caused by her presence in the zone of danger.
All or most of [Mary's] distress could not properly be dismissed as anxieties solely attributable to the aggravation of having to deal with the typical sequelae of a house fire . . . . [Mary's] contemporaneous distress, persistent fire nightmares, nausea, tension, anxiousness, shaking/shivering, stomach pains, inability to eat and loss of appetite and loss of weight cannot be properly dismissed as unrelated, particularly in light of Dr. Parisi's medical testimony. [Mary's] difficulties in dealing with the fire's sequelae cannot be disassociated from the underlying consequences of her prior trauma.
It is obvious that some of Mary's emotional distress was caused by the aftermath of the fire, including the feeling of being overwhelmed by the loss of her home and Joseph's death. Mary also testified that she was, "terrified" by the fire because she was in the "zone of danger." She presents her testimony and Dr. Parisi's to establish a causal link between that and her current alleged emotional distress. Even if the distress caused by the aftermath of the fire was greater than her zone of danger distress, in our view of the governing case law, she is entitled to recover if she can prove zone of danger damages by the requisite standard. The judge cannot "weigh the evidence and determine the truth of the matter." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). It is up to the jury to make this determination and to apportion any recoverable damages. This case presents a close question of fact. Nonetheless, it is a factual issue that precluded the grant of summary judgment.
On cross-appeal, defendants contend that the judge "abused [his] discretion in denying defendants' motion to exclude the testimony and expert reports of plaintiffs' treating psychologist." We disagree.
Plaintiffs served Dr. Parisi's reports without authorization. Defendants moved to bar the reports. The judge found good cause for the delay because Mary had resumed treatment. The judge analyzed defendant's motion to bar as if plaintiff had moved for an extension of discovery pursuant to Rule 4:24.1(c).
R. 4:24-1(c) provides, in pertinent part: Extensions of Time. The parties may consent to extend the time for discovery for an additional 60 days . . . . If the parties do not agree or a longer extension is sought, a motion for relief shall be filed . . . and made returnable prior to the conclusion of the applicable discovery period . . . [I]f good cause is otherwise shown, the court shall enter an order extending discovery, and specifying the date by which discovery shall be completed. The extension order may describe the discovery to be completed and such other terms and conditions as may be appropriate . . . .
Pursuant to this Rule then, if there is no consent for an additional sixty days, or if a time extension is sought, a motion must be filed, returnable before the discovery end-date, and good cause must be shown to extend discovery. In addition, the order, if granted, may also specify the date by which discovery shall be completed and the discovery to be engaged in as well as any other terms and conditions as may be appropriate. Leitner v. Toms River Regional School, 392 N.J. Super. 80 (App. Div. 2007). Substantial justice on the merits and a just determination are goals that are not precluded by the "Best Practices" rule. Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 51 (App. Div. 2003).
Thus, the issue here is whether good cause was shown. Our standard of review is limited to a determination of whether the judge mistakenly exercised his discretion in permitting an extension of the discovery period under R. 4:24-1(c). Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185 N.J. 290 (2005). The term "good cause shown" is flexible and its meaning is not fixed and definite. Ibid.
Defendants argue that "no exceptional circumstances justified plaintiffs' failure to produce the expert reports of Dr. Parisi during the discovery period." Defendants cite Rules 4:17-4(e) and 4:24-1(c) for the standards controlling subsequent discovery past the close of discovery.
We apply the abuse of discretion standard in reviewing a trial court judge's decision to deny a motion to exclude an expert witness. Bender v. Adelson, 187 N.J. 411, 428 (2006). The testimony of Mary and Dr. Parisi was an essential element of plaintiffs' case. Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).
Here, we conclude that the judge did not abuse his discretion by admitting Dr. Parisi's report. We note that the judge permitted an independent medical examination of Mary; the deposition of Dr. Parisi; and amendment of defendants' answers. Homann v. Torchinsky, 296 N.J. Super. 326, 340-41 (App. Div.), certif. denied, 149 N.J. 141 (1997). Therefore, defendants were not prejudiced by the record remaining open.
Accordingly, the April 20, 2007 order granting defendants' motion for summary judgment is reversed. The matter is remanded to the Law Division, Morris County for trial. The January 27, 2007 order denying defendants' motion to bar the testimony of Dr. Parisi and extending discovery is affirmed.