Emotional Rescue?
Does New Jersey recognize a claim for emotional distress when the plaintiff only observes the happening of an accident but is not physically injured? In 1980, the New Jersey Supreme Court held that if a plaintiff can prove the following: (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 (4) resulting severe emotional distress, the plaintiff can be awarded damages for the emotional distress. Portee v. Jaffee, 84 N.J. 88, 101 (1980).
What is critical about this cause of action, commonly referred to as a Portee Claim, is that the plaintiff does not have to suffer any actual physical harm in order to recover damages. Instead, the claim arises out of the emotional trauma suffered by the plaintiff in witnessing a loved-one’s severe physical injury or death.
Prior to 2008 there was some question as to whether the motor vehicle verbal threshold applied to a Portee claim. The New Jersey Supreme Court addressed that issue in Jablonowska v. Suther, 195 N.J. 91 (2008).
In Jablonowska, plaintiff was rear-ended by the defendant while driving her automobile on Route 21 in Newark. Plaintiff suffered some minor physical injuries. However, plaintiff’s mother, a passenger in her vehicle, was killed in the accident.
As a result of her mother’s death, plaintiff suffered severe emotional distress which resulted in “frequent crying, headaches, palpitations, chest pain, shortness of breath, nausea with vomiting, dizziness, [and] tingling and numbness of her extremities.” In addition, plaintiff suffered a decrease in appetite, impaired memory and concentration and eventually entered psychotherapy.
Plaintiff filed suit, alleging that defendant’s negligent operation of his vehicle caused her to experience “the psychological trauma of witnessing her mother’s injuries and subsequent death at the accident scene, which caused [plaintiff’s] severe mental impairment.” The defendant moved for dismissal of the Portee claim arguing that plaintiff’s injuries did not surpass the permanency requirement of the verbal threshold. Plaintiff responded by arguing that her Portee claim was independent of the verbal threshold test.
The trial court ruled in favor of the defendant, finding that the verbal threshold applied, and dismissed the Portee claim. On appeal, the Appellate Division affirmed the trial court.
The New Jersey Supreme Court reversed. In its ruling, the Court observed that under common law a Portee claim
has always transcended the need to prove permanent physical injury because it focuses on a unique type of heartsickness. It allows compensation for the severe emotional distress resulting from perceiving the death of, or severe injury to, a spouse or close familial relation. Absent some express legislative indication to the contrary, it is illogical to presume that the Legislature impliedly meant to subject Portee claims to the verbal threshold’s permanent-injury requirement that the tort itself foregoes.
Thus, the Court ruled that a plaintiff’s claim for negligent infliction of emotional distress based on a Portee theory of liability is independent of the requirements imposed by statute and, therefore, is not subject to the verbal threshold.
