Emotional Distress for Watching Family Member Killed, Injured in Accident
In Jablonowska v. Suther, 2008 WL 2342591 (N.J.), the New Jersey Supreme Court ruled that motorists or passengers have the right to sue for emotional distress under auto insurance policies if they witness the suffering of a family member who was killed or seriously injured in a motor vehicle accident.
The court addressed the question of whether the verbal threshold provision of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), which acts as a limitation on an insured's ability to sue an errant operator of a motor vehicle, could apply to bar an insured from maintaining a claim for negligent infliction of emotional distress pursuant to the liability theory in Portee v. Jaffee, 84 N.J. 88 (1980). In Portee, the court recognized a plaintiff's entitlement to recompense for the severe emotional harm that could be expected from having perceived the death of, or serious injury to, a spouse or intimate family relative.
Plaintiff's complaint alleged a Portee-based negligent infliction of emotional distress claim arising from the automobile accident caused by defendants that resulted in her suffering severe emotional distress after witnessing her mother, a passenger in her vehicle, sustain fatal injuries at the accident scene.
Though the plaintiff, who was diagnosed with post-traumatic stress disorder after the accident, was awarded more than $500,000 in damages on wrongful death and survivorship claims, her emotional distress claim was dismissed by the trial court in 2004. The court rejected Jablonowska's argument because her own physical injuries were not serious enough to meet the “verbal threshold” provision of AICRA.
The court of appeals court agreed, but the New Jersey Supreme Court overturned that decision, ruling that those eligible to sue for emotional harm because of the suffering they witnessed should not be precluded because they witnessed it in a car.
According to the court, since its inception, the Portee claim always had transcended the need to prove permanent physical injury. Despite that background, the legislature provided no indication, either through the verbal threshold's plain language or its legislative history, of demonstrating an intent suddenly to superimpose the threshold's permanent bodily injury requirement on Portee claims involving the happenstance use of a motor vehicle.
The court explained that a plaintiff could maintain a Portee claim for negligent infliction of emotional distress where: (1) the defendant's negligence caused the death of, or serious physical injury to, another; (2) the plaintiff shared a marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress.
Also, unlike emotional distress tied to the possibility of personal harm to the plaintiff, a Portee claim for negligent infliction of emotional distress was not dependent on the aggrieved person's presence within the zone of danger created by the defendant's negligent conduct.
The court explained that the location of the plaintiff vis-a-vis the danger created by the defendant's negligent conduct did not impact the potential for recovery on a Portee claim for negligent infliction of emotional distress, the viability of which depended only on whether the plaintiff had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arose.
The court held that Portee claims for negligent infliction of emotional distress, which were based on the severe emotional distress resulting from perceiving the death of, or severe injury to, a spouse or close familial relation, were independent of the requirements imposed by AICRA, and that the unique, derivative Portee claim was independent of AICRA's verbal threshold. Therefore, the plaintiff's Portee claim should not have been dismissed for non-compliance with AICRA's requirements for suit.