New Jersey courts have historically recognized a cause of action for damages to a bystander as a result of witnessing an injury-producing event to one with whom the bystander has an intimate or familial relationship. This cause of action is known as a Portee claim, originating from the landmark case Portee v. Jafee, 84 N.J. 88 (1980). This week, in Richard Litwin v. Whirlpool Corporation, et. al., the Appellate Division of the Superior Court of New Jersey has further defined what constitutes a bystander’s observation or “witnessing” of an injury-producing event.
On June 12, 2009, plaintiff and his stepson, Louis Acerra, were at home and asleep when they were awakened by the smoke detector alerting them to a fire downstairs that had started due to a faulty dishwashing unit. Plaintiff and Acerra took refuge in plaintiff’s room, but were separated when Acerra ran out into the hallway which was covered in smoke and flames. Plaintiff, believing that Acerra had escaped, proceeded to climb out the second floor window and was rescued. When he realized that his son had not escaped, the plaintiff had to be restrained from trying to re-enter the home to rescue Acerra. Shortly thereafter, plaintiff observed rescue personnel bringing his seriously burned stepson out of the house. The stepson had survived the fire but sustained extensive and severe burns. The plaintiff took care of his son over the next three years through multiple medical procedures. However, his son succumbed to the injuries sustained and passed away.
Plaintiff’s complaint sought damages related to his own and his son’s injuries as well as a Portee claim. This latter claim requires proof that 1) death or serious physical injury was caused by a tortfeasor’s negligence; 2) there is a intimate familiar relationship between the plaintiff and the injured person; 3) the plaintiff observed the death or injury at the scene; and 4) there was resulting severe emotional distress.
The trial court granted defendants’ motion for partial summary judgment in part, and dismissed the plaintiff’s Portee claim reasoning that the plaintiff did not directly witness or observe the injury-producing event. Rather, he only saw his stepson after the injuries had already occurred. The appellate division disagreed and reversed and remanded the case for trial. The court noted that this type of claim only requires proof of a sensory and contemporaneous perception of injury to a close family member. This element can be established by observation of the direct aftermath of an accident or injury. While merely being on the scene may not suffice, in this case, the father was in the burning home and thereafter witnessed his son’s burnt body carried from it.
This case may open the door to others arguing this type of claim. However, while the court found that a plaintiff does not have to witness the moment of the injury, it is clear that the plaintiff must have sufficient facts to show contemporaneous perception of the accident or injury.
Thanks to Steve Kim for his contribution.