RICHARD LITWIN, Administrator Ad Prosequendum for the ESTATE OF LOUIS M. ACERRA, and RICHARD LITWIN, Individually, Plaintiff-Appellant,
WHIRLPOOL CORPORATION, as successor in interest to MAYTAG CORPORATION, Defendants, and A& E FACTORY SERVICES, LLC; MICHAEL S. CECERO, individually, and as agents, servants, and/or employees of A& E FACTORY SERVICES, LLC, Defendants-Respondents
Argued January 8, 2014.
Approved for Publication June 11, 2014.
On appeal from an Interlocutory Order of the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4479-09.
Jacqueline DeCarlo argued the cause for appellant ( Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo, of counsel and on the briefs).
Paul E. White ( Sugarman, Rogers, Barshak & Cohen, P.C. ) of the Massachusetts bar, admitted pro hac vice, and Martin L. Sisselman argued the cause for respondents ( Sisselman & Schwartz, LLP, and Mr. White, attorneys; Andrew R. Levin ( Sugarman, Rogers, Barshak & Cohen, P.C. ) of the Massachusetts bar, admitted pro hac vice, Mr. White, and Mr. Sisselman, on the brief).
Before Judges SAPP-PETERSON, LIHOTZ and MAVEN. The opinion of the court was delivered by SAPP-PETERSON, P.J.A.D.
[436 N.J.Super. 82] SAPP-PETERSON, P.J.A.D.
We consider this interlocutory appeal following the Supreme Court's reversal of our denial of interlocutory review of the trial court order granting partial summary judgment to defendants A& E Factory Services, LLC (A& E) and Michael S. Cecero, who repaired plaintiff Richard Litwin's Whirlpool dishwasher. The motion judge granted summary judgment, finding plaintiff failed [436 N.J.Super. 83] to satisfy the observation prong necessary to assert a Portee  claim and also failed to establish a prima facie case of severe emotional distress. We now reverse.
On June 12, 2009, around midnight, plaintiff and his stepson, Louis Acerra, were at home and asleep when they were awakened by the sound of a smoke detector alerting them to a fire downstairs. They sought refuge in plaintiff's bedroom after observing smoke rising from downstairs. Once in the bedroom, they covered the door with clothing to prevent the smoke from seeping into the bedroom. Acerra subsequently ran out into the hallway, which was filled with smoke and flames. Plaintiff called out to Acerra, but when he did not respond, plaintiff believed he had escaped and proceeded to climb out the second floor window and hung onto the window ledge until rescue personnel arrived and brought a ladder to assist him.
Once on the ground and realizing that Acerra had not escaped, he attempted to re-enter the house, but firefighters restrained him. Shortly thereafter, he observed
rescue personnel bringing his son out of the house. Acerra's body was still burning, smoldering and smoking, with skin melting from his bones. Although Acerra survived the fire, he sustained third-degree burns to nearly 56% of his body. Plaintiff was his primary caretaker for the next three years, while he underwent multiple skin grafting and related procedures. Acerra died on January 17, 2012, after undergoing another procedure related to his injuries.
Plaintiff commenced treatment with psychologists Dr. Robbin J. Kay, in June 2010, and with Dr. Theodore J. Batlas in March 2011. Both doctors diagnosed plaintiff as suffering from post-traumatic stress disorder (PTSD) stemming from the fire. Dr. Kay reported that plaintiff's symptoms were triggered by smelling fire or [436 N.J.Super. 84] smoke and he experienced flashbacks of the fire. Dr. Batlas reported that plaintiff was an " eyewitness to his son's catastrophic burn injuries and was essentially the only person involved in caretaking for his son when he returned [home] . . . to rehabilitate following his hospitalization." He also opined that plaintiff continued to " suffer from flashbacks related to the fire and subsequent related events . . . [and] suffer[s] tremendous guilt at not being able to have done more to rescue/save his son both in the fire and from his subsequent death."
Prior to the fire, the United States Product Safety Commission announced a recall campaign to address a potential fire hazard involving several models of Maytag and Jenn-Air dishwashing units, including the model plaintiff owned. Whirlpool acknowledged at least 135 reports of fires directly related to the recall campaign. Plaintiff received a letter regarding a recall on his dishwasher; he called the 800 number on the letter and was informed a repair kit would be sent to him. Plaintiff refused the repair kit and requested that a repair technician come to his home. In July 2007, Whirlpool sent Cecero, an A& E employee, to service the dishwasher.
Following the fire, plaintiff filed a complaint, individually and on behalf of Acerra for injuries they sustained as a result of defendants' alleged negligence. Among the claims asserted against defendants was a bystander or Portee claim. Defendants filed a motion seeking partial summary judgment dismissing plaintiff's Portee claim. Whirlpool settled plaintiff's claims prior to the ...