(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
KEJOO AHN, ETC., ET AL. V. DR. CHUNG KIM, ET AL. (A-98/99/100/101-95)
Argued February 27, 1996 -- Decided July 18, 1996
POLLOCK, J., writing for a unanimous Court.
This appeal concerns the liability of a private psychiatric hospital and members of its staff for the
disappearance of a patient from an open ward. Kejoo Ahn (Mrs. Ahn) instituted this action individually, as
guardian of her husband, Dr. Ho Ahn, and as executrix of his estate. Defendants include the Carrier
Foundation, which operates the Carrier Clinic; Dr. Bohdan Cehelyk, the admitting physician; nurses Felicia
Schilp and Mary Manuell; security officers Barbara Higgins and Ellsworth Rand; and Irwin Kelly, director of
security.
Dr. Ahn was admitted voluntarily to the Carrier Clinic on March 22, 1988 for severe depression. On
arrival at Carrier Clinic, Dr. and Mrs. Ahn signed the admittance forms and met with Dr. Cehelyk.
Believing that Dr. Ahn had suicidal ideations, but was not suicidal, Dr. Cehelyk did not assign Dr. Ahn to a
closed unit where his movements would have been restricted. Instead, Dr. Cehelyk assigned Dr. Ahn to an
open unit where patients had more freedom to move about. Dr. Ahn disappeared from the Clinic within six
hours of his admission. Since then, no one has seen or heard from him.
On August 26, 1988, Mrs. Ahn was appointed guardian over the person and property of Dr. Ahn.
One year after his disappearance, on March 22, 1989, Mrs. Ahn filed the present action, seeking recovery for
Dr. Ahn's pain and suffering and for her own emotional distress. In a separate proceeding in March 1993,
the Law Division, pursuant to N.J.S.A. 3B:27-6, declared Dr. Ahn legally dead as of March 23, 1993, five
years after his disappearance. Mrs. Ahn was then appointed executrix of Dr. Ahn's estate. Thereafter, Mrs.
Ahn amended her complaint to include a cause of action for the wrongful death of Dr. Ahn. Mrs. Ahn's
motion to add nurse Caroline Barter as a defendant was denied.
At the close of Mrs. Ahn's case, the court granted directed verdicts for Kelly and Rand. Before
submission of the case to the jury, the court dismissed the emotional-distress claim. Over the objection of
Mrs. Ahn's counsel, the court instructed the jury not to presume that Dr. Ahn committed suicide. The court
explained that Mrs. Ahn bore the burden of proving by a preponderance of evidence that Dr. Ahn had
committed suicide. The court also charged the jury that a court order had been entered declaring Dr. Ahn
dead.
The jury found that Dr. Cehelyk, nurse Schilp and Higgins had not been negligent; that Manuell had
been negligent in that she deviated from accepted nursing standards in connection with Dr. Ahn; that Carrier
Clinic had been negligent in that members of its nursing staff deviated from accepted nursing standards and
in its security staffing on March 22, 1988; and that Mrs. Ahn failed to prove that Dr. Ahn committed suicide
within a short space of time after his disappearance from the Carrier Clinic. Because the jury concluded that
defendants' negligence had not caused Dr. Ahn's death, the trial court entered judgment for defendants.
On appeal, the Appellate Division reversed, finding reversible error in the charge concerning the presumption against suicide and in limiting Mrs. Ahn to a theory of intentional, active suicide. The Appellate Division precluded Mrs. Ahn from referring at trial to the previously-entered declaration of Dr. Ahn's death, reasoning that the order pertained to "winding up his affairs," and did not establish anything factually relevant to the wrongful death action. The court further stated that as with the presumption against suicide, counsel should not refer at trial to the statutory presumption of death. On the other issues, the
Appellate Division affirmed the dismissal of Mrs. Ahn's claim for emotional distress, permitted her to add
Barter as a defendant to the wrongful death action; and reversed the judgment in favor of Kelly. Thus, the
court ordered a retrial on both the wrongful death and survival actions as to Carrier Foundation, Dr.
Cehelyk, Manuell, Schilp, Higgins and Kelly.
The Supreme Court granted Mrs. Ahn's petition for certification to review the judgment dismissing
her emotional-distress claim and restricting the use of the declaration of Dr. Ahn's death. The Court also
granted defendants' cross-petitions seeking review of the scope of the remand.
HELD: The issues of negligence and causation are so interrelated that both issues must be retried, except as
to Dr. Cehelyk. In addition, Mrs. Ahn's claim for emotional distress was properly dismissed by the
trial court. On retrial, Mrs. Ahn is entitled to rely on the statutory presumption of death or refer to
the court order declaring Dr. Ahn's death to prove any element of her cause of action, including Dr.
Ahn's death.
1. Issues in negligence cases should be retried together unless the issue unaffected by error is entirely
distinct and separable from the other issues. Whether issues are sufficiently separable to warrant a partial
retrial ultimately depends on the circumstances of each case. Here, the issues of negligence and causation
are so interrelated that both issues must be retried. The risk that Dr. Ahn would commit suicide interrelates
with the alleged negligence of the various defendants. However, because Mrs. Ahn no longer wishes to
pursue the claim against Dr. Cehelyk, judgment dismissing the matter against him is reinstated. (pp. 14-15)
2. Mrs. Ahn's claim for negligent infliction of emotional distress does not satisfy the requirements for
recognized causes of action, specifically those involving bystanders to accidents; actions for medical
malpractice committed in the presence of the plaintiff; or cases involving loss of a corpse. Mrs. Ahn cannot
sustain a claim for indirect infliction of emotional distress because she did not witness either the alleged
negligence of the Carrier Clinic staff or the death or disappearance of her husband. The shock of receiving a
call informing her that her husband was missing also does not support a cause of action. Moreover,
defendants did not owe a direct duty to Mrs. Ahn. Carrier Foundation did not assume the risk that any
tortious conduct toward Dr. Ahn would result in liability for emotional distress to Mrs. Ahn. (pp. 16-19)
3. The Court disagrees with the Appellate Division holding in respect of the statutory presumption of death.
A presumption requires the fact-finder, once it finds the existence of one fact, to the presume the existence
of another fact. If the opposing party introduces evidence tending to disprove the presumed fact, the
presumption is lost. The party seeking the benefit of the presumption bears the burden of proof, which then
shifts to the opposing party the burden of production. A plaintiff such as Mrs. Ahn, who bears the burden of
proving the death of her husband, on introducing into evidence a declaration of her husband's death, would
be entitled to a presumption that he is in fact dead. The burden of production would then shift to
defendants to introduce evidence rebutting that presumption. Notwithstanding that shift in the burden of
production, the ultimate burden of proving Dr. Ahn's death would remain on Mrs. Ahn. (pp. 19-21)
4. Reliance by third parties on declarations of death in such matters of remarriage, the administration of decedent's estates and payment of life insurance suggests that reliance on the statutory presumption is appropriate in a wrongful death action. Common sense, fundamental fairness and the need to bring stability to human affairs also support that conclusion. Although the declaration of the death by itself suffices to create the presumption of Dr. Ahn's death, Mrs. Ahn may introduce other evidence to support that presumption. If defendants introduce sufficient evidence to rebut the presumption, the jury may consider the declaration of death and the underlying evidence in determining whether Mrs. Ahn has met her burden of proof. If, however, defendants fail to introduce sufficient evidence to rebut the presumption, the court should instruct the jury that, if it accepts the order declaring Dr. Ahn's death, then it must also find that he is in fact dead. The evidence defendants introduced at trial was insufficient to rebut the statutory
presumption. Unless defendants can adduce additional evidence on retrial to disprove Dr. Ahn's death, Mrs.
Ahn is entitled to the presumption that Dr. Ahn is in fact dead. (pp. 21-23)
Judgment of the Appellate Division is AFFIRMED to the extent that it dismisses Mrs. Ahn's
emotional-distress claim and remands the wrongful death and survival actions for retrial. The judgment is
MODIFIED by dismissing the complaint against Dr. Cehelyk and by according Mrs. Ahn the benefit of the
presumption of death.
JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE
POLLOCK'S opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-98/99/100/
101 September Term 1995
KEJOO AHN, individually, and HO
AHN, by his Guardian, KEJOO AHN,
and KEJOO AHN, individually and as
Executrix of the Estate of HO AHN,
Deceased,
Plaintiff-Appellant
and Cross-Respondent,
v.
DR. CHUNG KIM, STANLEY BIRCH,
ELLSWORTH RAND, "JOHN DOE" AND
"JANE ROE", (fictitious names),
Defendants,
and
THE CARRIER FOUNDATION and THE
CARRIER CLINIC MEDICAL ASSOCIATION,
Defendants-Respondents,
and
DR. BOHDAN CEHELYK, FELICIA SCHILP,
R.N., MARY MANUELL, R.N., IRWIN
KELLY and BARBARA HIGGINS,
Defendants-Respondents
and Cross-Appellants.
Argued February 27, 1996 -- Decided July 18, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
281 N.J. Super. 511 (1995).
Michael D. Schottland argued the cause for
appellant and cross-respondent (Schottland,
Aaron & Manning, attorneys).
Richard E. Brennan argued the cause for
respondent and cross-appellant Dr. Bohdan
Cehelyk (Shanley & Fisher, attorneys).
Leonard Rosenstein argued the cause for
respondents The Carrier Foundation and The
Carrier Clinic Medical Association and
respondents and cross-appellants Felicia
Schilp, R.N., and Mary Manuell, R.N. (Hurley
& Vasios, attorneys).
Stephen O. Mortenson argued the cause for
respondent and cross-appellants Irwin Kelly
and Barbara Higgins (Mortenson and Pomeroy,
attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
This appeal concerns the liability of a private psychiatric
hospital and members of its staff for the disappearance of a
patient from an open ward. Plaintiff Kejoo Ahn (Mrs. Ahn),
instituted this action individually, as guardian of her husband,
Dr. Ho Ahn, and as executrix of his estate. Defendants include
the Carrier Foundation, which operates the Carrier Clinic, and
numerous individual defendants: Dr. Bohdan Cehelyk; nurses
Felicia Schilp and Mary Manuell; security officer Barbara
Higgins; and director of security Irwin Kelly. Mrs. Ahn seeks
recovery for Dr. Ahn's pain and suffering, his wrongful death,
and for her own emotional distress. Two separate proceedings
preceded the present action. In one, Mrs. Ahn was appointed the
guardian of the person and property of Dr. Ahn. In the second,
she obtained a declaration of Dr. Ahn's death pursuant to
N.J.S.A. 3B:27-6.
Before submission of the case to the jury, the court, after
hearing testimony from Mrs. Ahn and her daughter, dismissed the
emotional-distress claims. Subsequently, the jury found that Dr.
Cehelyk, Schilp, and Higgins had not been negligent. It found
further, however, that Manuell had been "negligent in that she
deviated from accepted nursing standards in connection with Dr.
Ho Ahn." Additionally, the jury found Carrier Clinic negligent
"in that other members of its nursing staff deviated from
accepted nursing standards" and "in its security staffing on
March 22, 1988." Finally, the jury found that Mrs. Ahn failed to
prove that Dr. Ahn committed "suicide within a short space of
time after his disappearance from the Carrier Foundation." It
concluded that defendants' negligence had not caused Dr. Ahn's
death. Accordingly, the Law Division entered a judgment for
defendants.
The Appellate Division affirmed the dismissal of Mrs. Ahn's
emotional-distress claim. Because of erroneous jury
instructions, it reversed the judgment dismissing her wrongful-death claim and remanded the matter for retrial as to all
defendants.
281 N.J. Super. 511 (1995). Finally, the Appellate
Division ruled that Mrs. Ahn could not introduce into evidence
the declaration of Dr. Ahn's death or rely on the presumption of
his death.
We granted Mrs. Ahn's petition for certification to review
the judgment dismissing her emotional-distress claim and
restricting the use of the declaration of Dr. Ahn's death.
142 N.J. 519 (1995). We also granted defendants' cross-petitions
seeking review of the scope of the remand. Id. Dr. Cehelyk,
Schilp, and Higgins contend that the Appellate Division should
not have reversed the jury finding that they had not been
negligent. Kelly essentially argues that the trial court
correctly dismissed the claim against him for lack of expert
testimony. Manuell basically asserts that the trial court should
not have submitted to the jury the issue of her negligence, which
was supported by only an improper "net opinion."
We affirm the dismissal of Mrs. Ahn's claim for emotional
distress and the remand for a retrial on negligence, causation,
and damages as to all defendants, except Dr. Cehelyk, as to whom
plaintiff has elected not to proceed any further. We modify the
Appellate Division judgment regarding use of the presumption and
declaration of death and remand the matter to the Law Division.
Mrs. Ahn testified that beginning in 1987 Dr. Ahn "worried a
lot," and felt "hopeless" and "useless." Dr. Ahn, who had
settled a malpractice action that year, thought he was "a bad
doctor." Also, he was distressed about an Internal Revenue
Service investigation and the prospect that the Government would
take his home and other property.
In January, 1988, a psychiatrist, Dr. C.N. Kim, began
treating Dr. Ahn. On the first visit, Dr. Ahn attempted suicide
by trying to hang himself in the bathroom with his belt. Dr. Kim
placed Dr. Ahn on medication and told Mrs. Ahn to "watch him
carefully."
Thereafter, Dr. Ahn stopped working, felt helpless, and did
not eat or sleep. He returned to work in March, 1988. A few
weeks later, one of his patients died, and Dr. Ahn's depression
deepened. After meeting with Dr. Lee, a family friend, Dr. Ahn
agreed that he needed in-patient treatment. Dr. Lee arranged for
Dr. Ahn's admission to Carrier.
On March 22, 1988, at about 10:00 a.m., Mrs. Ahn drove Dr. Ahn to the Carrier Clinic. The Clinic is located in a rural area of Montgomery Township on 400 acres of open grounds approximately one mile from Route 206 and a few miles from Princeton Airport. Surrounding the grounds are a sparsely-populated residential
area, fields, and woodlands. Rising to the west are the Sourland
Mountains.
On arrival at the Clinic, Dr. and Mrs. Ahn signed the
admission forms and met with the admitting physician, Dr.
Cehelyk. In the admission report, Dr. Cehelyk noted that Dr. Ahn
had a history of depression while in medical school. Dr. Ahn,
however, was well until October, 1987, when he became
"progressively more depressed." Dr. Cehelyk diagnosed Dr. Ahn
with "major effective disorder depressed," noting specifically
high anxiety level with agitation; guilty and pessimistic
ruminations; profound psychomotor retardation (a slowing down and
slow thinking); indigenous depressive symptoms (poor sleep
habits, mood variations, and poor appetite); and suicidal
ideations (thoughts of hurting oneself). Believing that Dr. Ahn
had suicidal ideations, but was not suicidal, Dr. Cehelyk did not
assign Dr. Ahn to a closed unit, where his movements would be
restricted. Instead, Dr. Cehelyk assigned him to an open unit,
where patients have various dining and grounds privileges ranging
from freedom to move in public areas, such as the dining room and
gym, to unsupervised walks of the grounds.
The nurse in charge of the unit, Carolyn Barter, wrote in her nursing admission progress note that Dr. Ahn was "quite depressed," "never smiled during interview," and had suicidal
thoughts. Dr. Ahn told her, however, that he would hurt himself
only at home, and not in the hospital.
After their interview with Dr. Cehelyk, Dr. and Mrs. Ahn
went to Dr. Ahn's room. A guard checked Dr. Ahn's belongings and
removed his razor, but not his belt. Mrs. Ahn left Carrier
Clinic at approximately 1 p.m..
On returning home to Toms River, Mrs. Ahn, who was still
worried about her husband, called Dr. C.N. Kim. He told her that
he would call the Clinic.
At 3 p.m., Manuell replaced Barter as the nurse in charge of
the unit. Manuell last saw Dr. Ahn around 4 p.m. His roommate
saw him at 5 p.m. Since then, no one has seen or heard from him.
At approximately 5:30 p.m., after receiving a call from Dr.
C.N. Kim, Dr. Chung Kim went to meet with Dr. Ahn. Dr. Kim could
not find him. When Dr. Ahn did not respond to pages on the
intercom, nursing assistants tried to find him.
Although Manuell heard the pages, she testified that she
learned of Dr. Ahn's disappearance when she returned from dinner
at 8 p.m. She called her supervisor, Schilp, who instructed
Manuell to conduct a search of the other units. Clinic personnel
completed the search in twenty minutes.
Manuell announced over the PA system a "stat head check," a
room-to-room verification of all patients. She also notified
Higgins who, with Ellsworth Rand, were the only security officers
on duty. A third officer should have been on duty but was
absent. Higgins went on a "search and rescue," which consists of
a forty-five minute search in a vehicle of the grounds and
surrounding roadways. While conducting the search, Higgins
received a radio message that "patient Ho Ahn was suicidal."
According to Mrs. Ahn, between 8:00 and 8:45 p.m., she
called Carrier. A nurse informed her, "Your husband is not with
us." Carrier claims, however, that an unidentified staff member
had called Mrs. Ahn to inform her of Dr. Ahn's disappearance.
Schilp notified Dr. Kull, Director of Admissions, at 8:45
p.m. that Dr. Ahn was missing. Shortly thereafter, Schilp
notified the Montgomery Township police. By then, Higgins
realized that the situation was "severe," because "the patient
was suicidal."
Higgins informed Carrier's director of security, Irwin Kelly, at 9:15 p.m. of Dr. Ahn's disappearance. Although Kelly came to the Clinic, Higgins remained in charge of the search, which continued with road searches by nursing assistants until 11 p.m. Police continued to search in cars and with one dog until 12:30 a.m. Carrier personnel conducted a three hour "mountain
search" the following day. The police and Mrs. Ahn's private
investigator also continued to search unsuccessfully with dogs
and helicopters during the ensuing week.
II.
On August 26, 1988, Mrs. Ahn was appointed guardian of the
person and property of Dr. Ahn. One year after his
disappearance, on March 22, 1989, Mrs. Ahn filed a complaint in
the present action originally seeking recovery for Dr. Ahn's pain
and suffering and her own emotional distress. In a separate
proceeding in March of 1993, the Law Division declared Dr. Ahn
legally dead as of March 23, 1993, five years after his
disappearance. The Surrogate of Ocean County then appointed Mrs.
Ahn the executrix of Dr. Ahn's estate. Consequently, Mrs. Ahn
amended her complaint to include a cause of action for the
wrongful death of Dr. Ahn. The trial court denied her motion to
add nurse Carolyn Barter as a defendant.
In dismissing Mrs. Ahn's claim for emotional distress, the
court explained that although Mrs. Ahn doubtless had been shocked
to learn of her husband's disappearance, her shock was like that
of a wife who learns that her husband has died due to medical
negligence. Further, the fact that Dr. Ahn was missing, instead
of conclusively dead, did not distinguish her case from one
involving ordinary medical malpractice, for which a spouse
generally may not recover for emotional distress.
At the close of Mrs. Ahn's case, the court granted directed
verdicts for Kelly and Rand. Although Kelly had scheduled three
officers for that evening, nothing indicated he knew that only
two had reported. Rand, the court explained, had merely followed
Higgins's instructions.
Over the objection of Mrs. Ahn's counsel, the court
instructed the jury "not to presume that Doctor Ahn committed
suicide." It explained that Mrs. Ahn bore the burden of proving
by a preponderance of evidence that Dr. Ahn had com mitted
suicide. It also charged the jury that a court order had been
entered declaring Dr. Ahn dead. The issue, therefore, was not
whether Dr. Ahn was dead, but whether he had committed suicide
shortly after leaving the clinic .
In addition to its other findings, the jury found that Dr.
Ahn had not committed "suicide within a short space of time after
his disappearance from the Carrier foundation." Consequently,
the court entered a judgment for all defendants.
The Appellate Division found reversible error in the charge on the presumption against suicide. It reasoned that the charge was particularly damaging because Mrs. Ahn bore the burden of proving that defendants' negligence had caused Dr. Ahn's death. The court explained "that the erroneous jury instruction on the presumption against suicide irremediably tainted the jury's
special verdicts, on both the negligence and causation of
wrongful death issues, because the concept of suicide was such an
integral part of this unusual trial proceeding." 281 N.J. Super.
at 534. According to the court, the jury's evaluation of the
standards of psychiatric care "involved the claimed or denied
risks of suicide in this particular case relevant to the issue of
negligence on the admission procedure, the security of the
patient within the hospital, and the search procedures used when
he eloped." Ibid. The court explained that "[t]he presumption
against Dr. Ahn's suicide should not have been on the evidentiary
scales with all the other evidence for or against a suicidal
death." Id. at 535.
The Appellate Division also determined that the trial judge
erred in limiting Mrs. Ahn to a theory of intentional, active
suicide. It concluded that "if plaintiff wants to pursue a
broader theory than suicide or intentional self-destruction on
retrial, she may do so." Id. at 536. For Mrs. Ahn to succeed,
the jury "must find that Dr. Ahn met his death by suicide, or
misadventure, or accident or exposure within a reasonable period
of time after leaving Carrier, a period of time which would
relate his demise to a negligent breach of duty by one or more of
the defendants." Ibid.
Finally, the Appellate Division precluded Mrs. Ahn from referring at trial to the previously-entered declaration of Dr.
Ahn's death. The court reasoned that the order pertained to
"winding up his affairs," id. at 537, and "did not establish
anything pertinent factually to the wrongful death action,
especially since neither party has sought to effectively invoke
collateral estoppel or issue preclusion in this case." Ibid.
Further, the court stated that, as with the presumption against
suicide, counsel should not refer at trial to the statutory
presumption of death. Ibid. Thus, the Appellate Division
concluded:
[R]eference to the statutory presumption of death [and
to the declaration of death] is no more appropriate on
the retrial than reference to the presumption against
suicide was. They are both procedural vehicles forged
by the law to expedite human affairs where the true
facts are uncertain. In this case each has
demonstrated its utility. Plaintiff has been qualified
after five years to bring the death action and has been
forced to come forward with factual proof on the
likelihood that Dr. Ahn committed suicide. She has had
the advantage of the presumption of death statute. She
has assumed the procedural burden of proving a suicide.
Counsel cannot comment on and the judge cannot charge
on the presumptions.
The force and utility of both presumptions is
dissipated and they are now irrelevant to the jury. The
case should be presented as a straight-forward wrongful
death action with the issues of negligence and
causation presented to the jury without the clutter or
distraction of these legal presumptions.
[Ibid.]
On the other issues, the Appellate Division affirmed the dismissal of Mrs. Ahn's claim for emotional distress. Id. at 532. It permitted her to add Barter as a defendant to the wrongful death action. Id . at 531. Finally, the court reversed the summary judgment in favor of Kelly, asserting that reasonable
minds could differ about whether Kelly had been negligent. Id.
Thus, the court ordered a retrial on both the wrongful death and
survival actions as to Carrier Foundation, Dr. Cehelyk, Manuell,
Schilp, Higgins, and Kelly. Id. at 534.
Dr. Cehelyk, Schilp, and Higgins rely on the jury findings that each was not negligent. They contend that those findings are unrelated to the erroneous instruction on causation. Manuell
contends that we should dismiss the claims against her because
the evidence of her negligence was insufficient to merit
submission of that issue to the jury. Finally, Kelly contends
that we should sustain the trial court's directed verdict in his
favor.
care, and search. See Kassick v. Milwaukee Elec. Tool Corp.,
120 N.J. 130, 136 (1990) (ordering new trial on product defects,
misuse of product, and proximate cause because issues were
interrelated). For example, the jury finding that members of the
Carrier nursing staff "deviated from accepted nursing standards"
does not indicate whether the deviation related to the staff's
duties pertaining to nursing or security. Without knowing the
basis for the finding, a second jury could not determine whether
the deviation caused the patient's death. In these
circumstances, the more just and reasonable result is to require
a retrial on both negligence and causation.
The jury returned a verdict that Dr. Cehelyk had not been
negligent, but the Appellate Division included him in the remand
for retrial. 281 N.J. Super. at 534. Dr. Cehelyk petitioned for
reinstatement of the judgment in his favor. At oral argument,
Mrs. Ahn's counsel informed us that she does not wish to pursue
the claim against Dr. Cehelyk. Under the circumstances, we
modify the judgment of the Appellate Division and reinstate the
judgment of dismissal in Dr. Cehelyk's favor.
We likewise affirm the dismissal of Mrs. Ahn's claim for negligent infliction of emotional distress. Id. at 532. She concedes that her claim does not satisfy the requirements for recognized causes of action, specifically those involving
bystanders to accidents, Portee v. Jaffee,
84 N.J. 88 (1980);
actions for medical malpractice committed in the presence of the
plaintiff, Frame v. Kothari,
115 N.J. 638 (1989); Strachan v.
John F. Kennedy Memorial Hospital,
109 N.J. 523 (1988); or cases
involving loss of a corpse, Muniz v. United Hospitals Medical
Center Presbyterian Hospital,
153 N.J. Super. 79 (App. Div.
1977). Instead, she seeks the recognition of a previously
unrecognized claim arising out of her participation in her
husband's pre-admission psychiatric treatment and in his
admission to the Clinic.
She claims both a direct injury to herself, see Carey v. Lovett, 132 N.J. 45, 55 (1993), and an indirect injury arising out of the negligent treatment of her husband. The indirect claim derives from the line of cases involving bystanders. Frame, supra, 115 N.J. at 644-49; Portee, supra, 84 N.J. at 101. Generally, to recover for emotional distress resulting from medical malpractice on a family member, a claimant must establish a close temporal connection between the malpractice and the injury to the patient as well as the contemporaneous observation of the injury by the claimant. Frame, 115 N.J. at 645-46. In effect, the claimant must witness the malpractice and immediately connect it to the injury. Gendek v. Poblete, 139 N.J. 291, 300 (1995). The injury generally must be "susceptible to immediate sensory perception, and the claimant must observe the victim at
the time of or immediately after the injury." Frame, supra, 115
N.J. at 644; see also, Carey, supra, 132 N.J. at 58.
Last term, we rejected a couple's emotional-distress claim
based on nursing and medical malpractice on their new-born son
who died after several days of complicated and painful medical
treatment. Gendek, supra, 139 N.J. at 301-02. Neither parent
witnessed any act of malpractice. Furthermore, neither
immediately connected any malpractice with their baby's
respiratory failure or the need for emergency procedures. Id. at
302. Notwithstanding the genuineness of their suffering, their
claim did not manifest the "high degree of involvement and
connection," necessary to sustain a claim for the indirect
infliction of emotional distress. Ibid.
Similarly, although Mrs. Ahn doubtless has suffered from the loss of her husband and the ambiguity that clouds his disappearance, she cannot sustain a claim for indirect infliction of emotional distress. She did not witness either the alleged negligence of the Carrier staff or the death or disappearance of her husband. Portee, supra, 84 N.J. at 101; see also Lindemuth v. Alperin, 197 N.J. Super. 385, 389 (Law Div. 1984) (finding that misdiagnosis of infant who died three days later was not event causing injury which is capable of sensory perception). Furthermore, she did not immediately associate the loss of her husband with any negligent conduct by Carrier staff. See Gendek,
supra, 139 N.J. at 300; Frame, supra, 115 N.J. at 643-44. As
shocked as she may have been to learn over the telephone that Dr.
Ahn was missing, that shock does not support a cause of action.
See Acevedo v. County of Essex,
207 N.J. Super. 579, 585 (Law
Div. 1985). We cannot distinguish her reaction from that of
other spouses who sustain the loss of a husband or wife.
We likewise conclude that defendants did not owe a direct
duty to Mrs. Ahn. Generally, a hospital is not liable to a
patient's family members for negligent injury to the patient.
Johnson v. Jamaica Hosp.,
467 N.E.2d 502, 504 (N.Y. Ct. App.
1984); see Bruce I. McDaniel, Annotation, Recovery for Mental or
Emotional Distress Resulting from Injury to, or Death of, Member
of Plaintiff's Family Arising from Physician's or Hospital's
Wrongful Conduct,
77 A.L.R.3d 447, 485 (1977) (collecting cases
and indicating that hospital generally is not liable for
emotional distress to member of patient's family).
Consistent with the general rule, we conclude that Carrier did not assume the risk that any tortious conduct toward Dr. Ahn would result in liability for emotional distress to Mrs. Ahn. Strachan is distinguishable. There, we recognized the right of parents to recover for their emotional distress due to the hospital's failure to release their son's corpse after he was brain dead. 109 N.J. at 535. Similarly, in Muniz, the Appellate Division recognized the right of parents to recover for
infliction of emotional distress when a hospital failed to
confirm the death of their baby and misplaced the corpse for
three weeks. 153 N.J. Super. at 81. Here, nothing indicates
that Dr. Ahn died before his disappearance. As stressful as the
uncertainty about Dr. Ahn's disappearance may be for Mrs. Ahn, we
agree with the lower courts that Carrier's duty to him does not
extend to her.
The Superior Court may declare the absentee dead, if it is satisfied that he should be presumed dead under the provisions of N.J.S. 3B:27-1, or if it concludes from a review of the evidence, both direct and circumstantial, that the earlier death of the absentee has been established and that the death occurred prior to the institution of the proceeding before the court. A declaration with respect to a nonresident shall affect only property located within the State.
N.J.S.A. 3B:27-1 provides:
A resident or nonresident of this State who
absents himself from the place of his last
known residence for a continuous period of 5
years, during which he has not been heard
from, and whose absence is not satisfactorily
explained after diligent search, or inquiry
is presumed to be dead. His death is
presumed to have occurred at the end of the
period unless there is sufficient evidence
for determining that death occurred earlier.
Pursuant to those statutes, Mrs. Ahn obtained on March 23,
1993, an "order of declaration of death of Ho Ahn." It provided
that Dr. Ahn "is hereby declared dead as of March 23, 1993," and
that Mrs. Ahn's "request to have [Dr.] Ahn's date of death made
retroactive to March 23, 1988, is hereby denied." The Appellate
Division ruled that Mrs. Ahn may not rely on the statutory
presumption of death or refer to the Chancery Division's order to
prove any element of her cause of action, including Dr. Ahn's
death. We disagree.
A brief summary of the effect of presumptions will aid
comprehension of the statute. Simply stated, a presumption
requires the fact-finder, once it finds the existence of one
fact, to presume the existence of another fact. If the opposing
party introduces evidence "tending to disprove" the presumed
fact, the presumption disappears. N.J.R.E. 301; see Ford Motor
Co. v. Township of Edison,
127 N.J. 290, 312 (1992). The
question of the proof of the presumed fact becomes one for the
fact-finder "unless reasonable persons would not differ as to the
existence or non-existence of the presumed fact." N.J.R.E. 301.
Assuming that the party seeking the benefit of the
presumption bears the burden of proof, one effect of a
presumption is to shift to the opposing party the burden of
production, but not the burden of proof. As N.J.R.E. 301 states,
"[t]he burden of persuasion as to the proof or disproof of the
presumed fact does not shift to the party against whom the
presumption is directed unless otherwise required by law." See
also Ford Motor Co., supra, 127 N.J. at 314-15 (stating that
burden of persuasion remains on plaintiff throughout case);
Facendo v. S.M.S. Concast, Inc.,
286 N.J. Super. 575, 585 (App.
Div. 1996) (same).
Thus, a plaintiff, such as Mrs. Ahn, who bears the burden of
proving the death of her husband, on introducing into evidence a
declaration under N.J.S.A. 3B:27-1 of her husband's death, would
be entitled to a presumption that he is in fact dead. The burden
of production would then shift to defendants to introduce
evidence rebutting the presumption. Notwithstanding that shift
in the burden of production, the ultimate burden of proving Dr.
Ahn's death would remain on Mrs. Ahn.
Declarations of death are used routinely in connection with such matters as remarriage, the administration of decedents' estates, the payment of life insurance, and the sale of real estate. Reliance by third parties on the statutory presumption in such matters suggests that reliance is appropriate also in a wrongful death action. Common sense, fundamental fairness, and the need to bring stability to human affairs also support that suggestion. The alternative would consign the widow to limbo and unduly complicate, if not forestall, an action for her husband's wrongful death. Although the declaration of death by itself
suffices to create the presumption of Dr. Ahn's death, Mrs. Ahn
may also introduce other evidence to support the presumption.
If defendants introduce sufficient evidence to rebut the
presumption, the jury may consider the declaration of death and
the underlying evidence in determining whether Dr. Ahn is dead.
That evidence would include Dr. Ahn's medical history, past
suicide attempt, family history of suicide, mental condition on
admission to Carrier, diagnosis on admission, the facts
surrounding his subsequent disappearance, and the nature of the
Carrier Clinic as a psychiatric hospital. The jury would then
weigh all the evidence and decide whether Mrs. Ahn has met her
burden of proving Dr. Ahn's death. If, however, defendants fail
to introduce sufficient evidence to rebut the presumption, the
court should instruct the jury that if it accepts the order
declaring Dr. Ahn dead, then it must also find that he is dead in
fact. See Apfelbaum v. Prudential Ins. Co. of America,
12 N.J.
Misc. 62, 65 (1932) (stating that the issue is one for the jury);
Midgett v. United States,
603 F.2d 835, 846 (Ct. Cl. 1979)
(stating that presumption of death amounts to prima facie case,
and if not rebutted, requires "a verdict for plaintiff on the
issue of death"); see also Alfred C. Clapp & Dorothy G. Black, 7A
New Jersey Practice § 1854, at 513-14 & n.4. (1984) (stating "It
would seem that where a certified copy of the judgment is
introduced into evidence and is not met with countervailing
proof, the court should direct a verdict as to the issue.").
To assist the court and parties on remand, we add our
conclusion that the evidence defendants introduced at trial was
insufficient to rebut the presumption. That evidence includes
the facts that Dr. Ahn's glasses and coat were missing, the
failure to find his body, and the proximity of the Clinic to
Route 206 and the Princeton Airport. Unless defendants can
adduce additional evidence to disprove Dr. Ahn's death, Mrs. Ahn
is entitled to the presumption that he is in fact dead. In
reaching these conclusions, we note that Mrs. Ahn has not pled or
sought to introduce proof in support of the doctrines of res
judicata, collateral estoppel, or issue preclusion. Hence, we do
not determine the applicability of those doctrines to her action.
We affirm the judgment of the Appellate Division to the
extent that it dismisses Mrs. Ahn's emotional-distress claim and
remands the wrongful death and survival actions for retrial. We
modify the judgment by dismissing the complaint against Dr.
Cehelyk and by according Mrs. Ahn the benefit of the presumption
of death.
JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN
join in JUSTICE POLLOCK'S opinion. CHIEF JUSTICE WILENTZ did not
participate.
NO. A-98/99/100/101-95 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
KEJOO AHN, etc.,
Plaintiff-Appellant
and Cross-Respondent,
v.
DR. CHUNG KIM, et al.,
Defendants,
and
THE CARRIER FOUNDATION, et al.,
Defendants-Respondents,
and
DR. BOHDAN CEHELYK, et al.,
Defendants-Respondents
and Cross-Appellants.
DECIDED July 18, 1996
Justice Handler PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY