On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7029-06.*fn3
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Axelrad, Sapp-Peterson and Espinosa.
In this appeal, we consider whether the third element of a claim for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980), "observation of the death or injury at the scene of the accident," is satisfied with proof of knowledge or awareness of death or injury but without any contemporaneous sensory perception. We determine that such proof does not satisfy the third element. We therefore affirm the trial court orders granting summary judgment dismissing plaintiff's Portee claim and denying plaintiff's motion for reconsideration.
The facts, when viewed most favorably to plaintiff, Kwaku Boadu Bosompem,*fn4 as the party opposing summary judgment, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), disclose that the tragic events in this matter unfolded on September 29, 2005. On that date, Catrina Briggs (Briggs), the mother of his daughter, Yaa Ayannah Bosompem,*fn5 was pushing Yaa Ayannah in a baby stroller across Bloomfield Avenue in Verona when a motor vehicle operated by Meyers struck both Briggs and their daughter, fatally injuring both. Shortly before the accident, the two had accompanied Bosompem to a job orientation. He had instructed Briggs to return to the car with Yaa Ayannah and wait for him in the car. The fatal accident occurred at some point after Briggs and Yaa Ayannah left Bosompem at the orientation location.
As the named administrator of his daughter's estate, Bosompem filed a complaint on behalf of her and himself, individually, against Meyers, Briggs' estate, and Amica Insurance Company. Among the causes of action asserted were claims of wrongful death, N.J.S.A. 2A:31-1 to -6, negligent supervision, and negligent infliction of emotional distress. In an order dated December 7, 2007, the court, following a motion brought by defendant Meyers, consolidated plaintiff's complaint with a complaint filed on behalf of the Estate of Catrina Briggs against Meyers. Briggs' estate reached a settlement with Meyers and a Stipulation of Dismissal was later executed and filed with the court. Thereafter, Meyers moved for partial summary judgment against Bosompem, claiming that he failed to meet the criteria to assert a Portee claim. Portee, supra, 84 N.J. at 101.
On March 6, 2009, the motion judge, after conducting oral argument, granted the motion. The court concluded that plaintiff failed to raise a genuinely disputed issue of fact related to the third element of a Portee claim, and entered an order dated March 6, granting partial summary judgment dismissing the third count of plaintiff's complaint. See Ibid. On March 12, Meyers entered into a settlement with plaintiff on behalf of Yaa Ayannah's estate and a Stipulation of Dismissal was filed with the court on April 17.
Plaintiff filed a motion for reconsideration of the court's March 6 order, which the court denied. In a statement of reasons attached to the order, the court concluded that plaintiff's motion did not meet the standards for relief pursuant to Rule 4:49-2. On June 18, a Stipulation of Dismissal was filed dismissing plaintiff's complaint against Amica Insurance without prejudice. Plaintiff filed the ensuing appeal.
Plaintiff contends summary judgment was improvidently granted because there was "an issue of material fact regarding plaintiff's sensory observation of his daughter's serious injury" and, in granting summary judgment, the motion judge failed to afford him the benefit of all favorable inferences. Plaintiff maintains that had the court done so, it would have denied the motion. We disagree.
The standard of review of a trial court's grant of a motion for summary judgment is de novo, using the same standard as that employed by a trial court. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). We must determine whether the facts, when viewed most favorably to the non-moving party, establish genuinely disputed issues of fact sufficient to defeat summary judgment. Brill, supra, 142 N.J. at 523. Measured against this standard, we are in complete accord with Judge Rachel Davidson that plaintiff's Portee claim fell short.
In Portee, supra, 84 N.J. at 101, our Supreme Court first recognized a cause of action in tort premised not upon actual physical injury upon the claimant, but based upon distress resulting from perceiving the negligently inflicted injuries upon another. In order ...