September 1, 2009
JAY GIACALONE BUTTERFIELD, AN INDIVIDUAL, PLAINTIFF-APPELLANT,
LUCAS ELECTRIC CO., INC., DEFENDANT-RESPONDENT.
JOHN BUTTERFIELD, AS PARENT AND GUARDIAN AD LITEM FOR JOHN MICHAEL BUTTERFIELD, A MINOR; JOHN BUTTERFIELD, INDIVIDUALLY, PLAINTIFFS,
LUCAS ELECTRIC CO., INC., DEFENDANT, AND LUCAS ELECTRIC CO., INC., DEFENDANT/THIRD-PARTY PLAINTIFF,
JAY GIACALONE BUTTERFIELD, THIRD-PARTY DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-1286-06 and L-788-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges Sabatino and Chambers.
Plaintiff, Jay Giacolone Butterfield, appeals the Law Division's order granting summary judgment to defendant, Lucas Electric Co. The order dismissed plaintiff's claims for emotional distress arising out of her observing her sixteen-month-old son falling into a hole dug by defendant, from which he was extricated about twelve minutes later. We affirm.
Here are the relevant facts, which we consider in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
At about 4:00 p.m. on August 22, 2005, plaintiff took her son John Michael, who was then sixteen months old, to Tamaques Park in Westfield. John Michael was playing with another child on a mound of dirt near the park's tennis courts when he fell into a hole approximately fifteen feet deep and about three feet in diameter. Defendant had excavated the hole in installing new light stanchions for the tennis courts. The hole was unmarked. The boy landed in the hole about ten to twelve feet beneath ground level.
Plaintiff, who had been talking to the mother of John Michael's playmate, was standing about fifteen to twenty feet away when her son fell into the hole. Once she realized that he had fallen, she ran over and heard John Michael crying. She remained in verbal contact with him, assuring that she was nearby. The police were summoned, and a rescue team of police and firefighters arrived about ten minutes after John Michael had fallen. After verifying that John Michael was still breathing, the rescue team pulled the boy out of the hole. When he was brought to safety, plaintiff perceived his body was "limp," and she feared that he was dead. The rescue team carried John Michael to a waiting ambulance. At that point, plaintiff was able to see her son up close and verify that he was indeed alive.
The ambulance took plaintiff and John Michael to a local hospital. After several medical tests were performed and indicated normal readings, the boy was released later that day. He was diagnosed with superficial abrasions and contusions. About a week later, the boy's pediatrician noted that he was "alert, active and playful." No further treatment of the boy relating to the accident was provided for the next sixteen months, when he was taken to a psychiatrist. According to the psychiatrist, the son had manifested symptoms of post-traumatic stress disorder.
Meanwhile, plaintiff herself reported having anxiety from this incident. She sought treatment with a psychiatrist and a social worker, and was also diagnosed with post-traumatic stress disorder. Her condition persisted and she currently takes medication for her symptoms.
Plaintiff filed a complaint in the Law Division alleging that, as a result of witnessing her son's entrapment in the hole, she suffered from "severe emotional injury." She contended that defendant is liable to her for the negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980). Plaintiff also claimed that defendant is liable to her for "parental bystander" emotional distress, under Falzone v. Busch, 45 N.J. 559 (1965). No other defendants were named. Defendant moved for summary judgment, arguing that
plaintiff cannot establish the elements of a cause of action under either Portee and its progeny, or Falzone. The trial court heard oral argument, and adopted defendant's position. Among other things, the motion judge concluded that plaintiff had not shown that she had observed her son become "seriously injured," as is required under Portee. The judge also rejected plaintiff's claims under the parental bystander theory.
Plaintiff now appeals, arguing that she met her burden of establishing the traditional elements of a Portee claim, or, alternatively, that Portee should be extended to a scenario such as this where the accident resulted in post-traumatic stress disorder. She also contends that she had been standing in the "zone of danger" near the hole, qualifying her to make a claim for bystander emotional injury under Falzone.
We have fully considered plaintiff's arguments. We affirm the entry of summary judgment, substantially for the well-stated reasons in Judge Diane Pincus's decision placed on the record on November 10, 2008. We add just a few points of amplification.
The well-established elements of a Portee claim for the negligent infliction of emotional distress are: "(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 resulting severe emotional distress." Portee, supra, 84 N.J. at 101; see also Dunphy v. Gregor, 136 N.J. 99, 102-05 (1994). We agree with the motion judge that the first element of this test:
"death or serious physical injury," has not been established here. Fortunately, John Michael did not die after his fall, and the abrasions and contusions he received do not amount to "serious" physical injuries.
Plaintiff maintains that the fact that both she and her son have been diagnosed with post-traumatic stress disorder satisfies the "serious injury" element of Portee. We disagree. To be sure, in Jablonowska v. Suther, 195 N.J. 91 (2008), the Supreme Court held that a plaintiff who had suffered post-traumatic stress disorder after witnessing her mother die in a motor vehicle accident had a viable cause of action under Portee. Here, however, there is no comparable death or "serious injury" on the part of John Michael, the relative whose accident was observed.
We reject plaintiff's contention that post-traumatic stress disorder is a per se indicator of the kind of serious injury required under Portee. We agree with Judge Pincus that the Tort Claims Act and the other cases cited by plaintiff on this issue involved far more extreme circumstances and injuries than the instance case, in which plaintiff's son maintained contact with his mother while he was down in the hole, was rescued within twelve minutes, receiving only a few scratches and bruises. Although we do not diminish a mother's natural fear that her toddler may be badly hurt or trapped, this scenario simply did not rise to the actionable level of a serious injury.
In addition, we readily concur with Judge Pincus that plaintiff has no claim under Falzone, supra, 45 N.J. at 569, because plaintiff herself lacked a "reasonable fear" of her own "immediate personal injury." Plaintiff, who was standing at a somewhat remote distance from the dirt pile and the excavation site, could not have reasonably feared that she, herself, was on the brink of falling into the hole and getting injured. Her fear concerned her son's welfare, not her own physical safety.
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