(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).
Argued October 13, 1993 -- Decided June 2, 1994
HANDLER, J., writing for a majority of the Court.
The tort commonly referred to as "bystander" liability allows recovery for the emotional injury
suffered by a bystander who witnesses the wrongful death or serious physical injury of another person with
whom the bystander had a marital or intimate familial relationship. The specific issue on appeal is whether
bystander liability allows recovery by a person who was not legally married to the deceased victim but who
cohabitated with and was engaged to marry the decedent.
Eileen Dunphy and Michael T. Burwell became engaged to marry in April 1988 and began living
together in June of 1988. The couple planned to marry in February 1992. On September 29, 1990, Dunphy
and Burwell helped a friend change a tire on Route 80 in Mount Arlington. As Burwell changed the left
rear tire of his friend's car, which was sitting on the shoulder of the roadway, he was struck by a car driven
by James Gregor. Dunphy, who had been standing approximately five feet from Burwell, witnessed the
impact and ran to help and comfort her seriously injured fiance. Burwell died the following day.
Since the accident, Dunphy has undergone psychiatric and psychological treatment for depression
and anxiety. She sued James Gregor, seeking to recover damages for the "mental anguish, pain and
suffering" experienced as a result of witnessing the events that led to the death of Michael Burwell.
At her deposition, Dunphy testified that both she and Burwell had taken out life-insurance policies making
each other beneficiaries; had maintained a joint checking account from which they had paid their bills; and
had jointly purchased an automobile. Burwell also asked several times that Dunphy elope with him, and
often introduced her in public as his wife.
The trial court ruled that Dunphy could not maintain an action for negligent infliction of emotional
distress because she was neither married to nor involved in an intimate familial relationship with the
decedent. A majority of the Appellate Division reversed, ruling that a jury should be allowed to determine
whether the relationship of cohabitants engaged to be married is the functional equivalent of an intimate
familial relationship. The dissenting judge was of the view that only persons legally married would be
entitled to such a cause of action.
The appeal is before the Supreme Court as a matter of right based on the dissent below.
HELD: Because Eileen Dunphy, an unmarried cohabitant, shared an intimate familial relationship with
the victim of the defendant's negligence, under the circumstances of this case, she should be
afforded the protections of bystander liability for the negligent infliction of emotional distress.
1. In Portee v. Jaffee, the Court recognized a cause of action for the negligent infliction of emotional
injury experienced by a bystander who witnessed the wrongful death of another person. Portee was based on
the California Supreme Court case Dillon v. Legg. Under Portee, for a bystander-claimant to prevail, that
claimant must demonstrate 1) the death or serious physical injury of another caused by a defendant's
negligence; 2) a marital or intimate familial relationship between the bystander and the injured person; 3)
observation of the death or injury at the scene of the accident; and 4) resulting severe emotional distress.
(pp. 4-6)
2. The California Supreme Court would not extend bystander liability to a cohabitant because liability
had become too expansive and burdensome. The California Court determined that it must draw a "bright
line" to limit the scope of liability of a negligent actor. However, this Court's experience does not parallel
California's. In general, New Jersey courts have applied all the elements of Portee restrictively. Nor has
there been a radical expansion of bystander liability since Portee. Rather than looking, as the California
Court did, to a bright-line distinction between married and unmarried persons, the Court must look to the
application of the principles of tort law to determine whether a particular claimant is owed a duty of care.
(pp. 6-11)
3. In imposing a duty, courts must consider the relationship of the parties, the nature of the risk (its
foreseeability and severity); and the impact the imposition of a duty would have on public policy. Ultimately,
whether a duty exists is a matter of fairness. Applying the standard of an intimate familial relationship to an
unmarried cohabitant and affording that cohabitant the protection of bystander liability is not unfair.
Persons engaged to be married and living together foreseeably fall into the category of a relationship with
the victim at the time of the injury that is deep, lasting, and genuinely intimate. Moreover, there is no
additional, unfair burden that would be placed on potential wrongdoers. (pp. 11-14)
4. The assessment of the quality of interpersonal relationships is not beyond a jury's knowledge or
ability to determine if it is deserving of compensation. The quality of the relationship creates the severity of
the loss. The critical determination in evaluating the interpersonal relationship must be guided by a standard
that focuses on factors that identify and define the intimacy and familial nature of the relationship, taking
into account: 1) the duration of the relationship; 2) the degree of mutual dependence; 3) the extent of
common contributions to a life together; 4) the extent of the quality of shared experiences; and 5) as
expressed by the Appellate Division, whether the plaintiff and the injured person were members of the same
household, their emotional reliance on each other, the particulars of their day-to-day relationship, and the
manner in which they related to each other in attending to life's everyday requirements. The California
Court was concerned that without a "bright-line" definition of the bystander-victim relationship, courts will
not be able to counteract fraudulent claims. That concern, however, does not outweigh the need to
recognize legitimate claims. (pp. 14-18)
5. Bystander liability in favor of unmarried persons who enjoy an intimate familial relationship that is
substantial, stable, and enduring is not adverse to public policy concerns. The State's strong interest in
promoting marriage will not be subverted if unmarried cohabitants are given the same rights as married
persons with respect to the right to recover for the negligent infliction of emotional injury. Allowing tort
recovery in these circumstances will not discourage the desirability of marriage, erode society's commitment
to the institution of marriage, or have a significant adverse impact on automobile insurance premiums
sufficient to undermine any considerations of public policy. (pp. 18-21)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE GARIBALDI, dissenting, is of the view that the majority fails to define a sufficiently
limiting principle in its standard for deciding who qualifies as an intimate family member. Unlike the
majority, Justice Garibaldi would continue to construe the Portee test narrowly. Justice Garibaldi believes
that the majority's opinion will substantially increase the numbers of claimants seeking recovery for bystander
emotional distress and perceives no public-policy reason to support such an increase. Moreover, Justice
Garibaldi believes that permitting recovery here will cause confusion in many other areas of the law in which
spouses continue to be treated differently from unmarried cohabitants.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN and STEIN join in JUSTICE
HANDLER's opinion. JUSTICE GARIBALDI filed a separate dissenting opinion. JUSTICE CLIFFORD
did not participate.
SUPREME COURT OF NEW JERSEY
A-
26 September Term 1993
EILEEN M. DUNPHY,
Plaintiff-Respondent,
v.
JAMES L. GREGOR,
Defendant-Appellant.
Argued October 13, 1993 -- Decided June 1, 1994
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
261 N.J. Super. 110 (1992).
Donald S. McCord, Jr., argued the cause for
appellant (O'Donnell, McCord, Helfrich &
Bangiola, attorneys).
William J. Vosper, Jr., argued the cause for
respondent.
E. Drew Britcher submitted a brief on behalf
of amicus curiae, Association of Trial
Lawyers of America - New Jersey (Stern,
Steiger, Croland, Tanenbaum & Schielke,
attorneys; Mr. Britcher and Armand Leone,
Jr., on the brief).
The opinion of the Court was delivered by
HANDLER, J.
Many states, including our own, recognize the tort commonly referred to as "bystander" liability. Bystander liability allows recovery for the emotional injury suffered by a person, who, as a
bystander, witnesses the wrongful death or serious physical
injury of another person with whom the bystander had a close,
substantial, and enduring relationship. In this case, the
central inquiry focuses on the nature of that relationship. The
specific issue presented is whether bystander liability allows
recovery by a person who was not legally married to a deceased
victim but who cohabitated with and was engaged to marry the
decedent.
The issue is sharpened by the conflicting opinions of the
lower courts. The trial court ruled that an action for negligent
infliction of emotional distress was not available to a claimant
who was neither married to nor involved in an intimate familial
relationship with the decedent. The Appellate Division ruled
that a jury should be allowed to determine whether the
relationship of cohabitants engaged to be married was the
functional equivalent of an intimate familial relationship.
261 N.J. Super 110 (1992). A dissent in the Appellate Division
expressed the view that only persons legally married would be
entitled to such a cause of action. Id. at 125.
The appeal is before this Court as a matter of right because
of the dissenting opinion. R. 2:2-1(a)(2).
Eileen Dunphy and Michael T. Burwell became engaged to marry in April 1988 and began cohabitating two months later. The couple set a date of February 29, 1992, for their wedding. On
September 29, 1990, the couple responded to a friend's telephone
call for assistance in changing a tire on Route 80 in Mount
Arlington. As Michael changed the left rear tire of the friend's
car on the shoulder of the roadway, he was struck by a car driven
by defendant, James Gregor. After being struck by the vehicle,
his body was either dragged or propelled 240 feet. Eileen, who
had been standing approximately five feet from Michael, witnessed
the impact, and ran to him immediately. Realizing that he was
still alive, she cleared pebbles and blood from his mouth to ease
his breathing. She attempted to subdue his hands and feet as
they thrashed about, all the while talking to him in an effort to
comfort him. The following day, after a night-long vigil at
Dover General Hospital, Eileen was told that Michael Burwell had
died as a result of his injuries. Since the accident, Eileen has
undergone psychiatric and psychological treatment for depression
and anxiety. She instituted an action seeking to recover damages
for the "mental anguish, pain and suffering" experienced as a
result of witnessing the events that led to the death of her
fiance.
Eileen testified at her deposition that both she and Michael
had taken out life-insurance policies making each other
beneficiaries. They had maintained a joint checking account from
which they had paid their bills, and also they had jointly
purchased an automobile. In addition, Michael had asked her
several times to elope with him, and he had introduced her in
public as his wife.
In Portee v. Jaffee, 84 N.J. 88 (1980), this Court first recognized a cause of action for the negligent infliction of emotional injury experienced by a bystander who witnessed the wrongful death of another person. A mother suffered horrendous emotional trauma as a result of watching her seven-year-old son suffer a slow and agonizing death after becoming trapped in an elevator. The Court sustained the mother's right to bring a negligence action for the infliction of emotional injury against the landlord and the elevator company, although she herself had not been subjected to any risk of physical harm. Id. at 101. In recognizing a bystander's cause of action for the negligent infliction of emotional injury, the Court cited approvingly to Dillon v. Legg, 441 P.2d 912 (1968), in which the California Supreme Court allowed a mother to recover damages for the emotional injury she had suffered from witnessing the wrongful death of her daughter. The California court, acknowledging that the mother had been a mere bystander to the tragedy, specifically noted that the horror of the event bore uniquely on her because the victim had been her own daughter and because she had been near the accident and had actually observed its occurrence. Those considerations shaped the standard adopted by the court to govern a cause of action for the infliction of emotional injury. Dillon, supra, 441 P. 2d at 920.
In Portee, we adopted a similar standard. Portee set out a four-factor test for determining a cause of action for negligent
infliction of emotional distress. For a bystander-claimant to
prevail, the claimant must demonstrate "(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." 84 N.J. at 101.
In Portee, we explained the importance of the existence of
an intimate familial relationship between the plaintiff and the
victim as the basis for recovery:
It is the presence of deep, intimate,
familial ties between the plaintiff and the
physically injured person that makes the harm
to emotional tranquility so serious and
compelling. The genuine suffering which
flows from such harm stands in stark contrast
to the setbacks and sorrows of everyday life,
or even to the apprehension of harm to
another, less intimate person. The existence
of a marital or intimate familial
relationship is therefore an essential
element of a cause of action for negligent
infliction of emotional distress.
The Appellate Division understood Portee to mean that the law "should not ignore the fact of a deep emotional attachment between . . . any two persons who share an adequately earnest emotional commitment in a relationship that is functionally equivalent to familial." 261 N.J. at 123-24. Accordingly, the majority below held that the marital or intimate-familial relationship standard that was applied in Portee to a parent and
child also encompassed the relationship between plaintiff and her
fiance. Id. at 123.
The dissent below interpreted the Portee requirement of a
"familial relationship" as one restricted to marriage or blood
ties. 261 N.J. Super. at 125 (Muir, J.A.D., dissenting). It
noted that the California court, which authored Dillon, supra,
has since refused to extend the cause of action for negligently-inflicted emotional distress to persons in a cohabitant
relationship. Ibid. (citing Elden v. Sheldon,
758 P.2d 582 (Cal.
1988)). The dissent concluded that our courts should similarly
limit bystander liability. Ibid.
As in this case, the plaintiff and the decedent in Elden
were cohabitants and were involved in a relationship that the
plaintiff claimed was similar to a marital relationship. 758
P.
2d at 585. They were riding together in a car when it was
struck by the defendant's car, throwing the decedent from the
vehicle and fatally injuring him. The plaintiff brought an
action to recover for the negligent infliction of emotional
distress resulting from witnessing her fiance's fatal injuries.
Id. at 582-83.
In rejecting the cohabitant's claim, the California Supreme
Court stressed the need for a "sufficiently definite and
predictable test to allow for consistent application from case to
case." Id. at 587. It reasoned that to allow recovery for
emotional distress to those outside of the victim's immediate
family "would result in the unreasonable extension of the scope
of liability of a negligent actor." Id. at 588. It determined
that it must draw a "bright line" to limit the scope of liability
of a negligent actor, and it therefore restricted bystander
liability to persons who were legally married or related.
The court in Elden was reacting to the experience of the
California courts with bystander liability under the Dillon
standard. After Dillon, California courts had expanded nearly
all the boundaries of liability set out in the several prongs of
the Dillon analysis. See, e.g. Ocha v. Superior Court,
703 P.2d 1 (Cal. 1985) (permitting recovery even though injury-producing
event was not sudden or accidental); Molien v. Kaiser Foundation
Hospitals,
616 P.2d 813 (Cal. 1980) (eliminating "sudden
occurrence element" for "direct victim" plaintiffs); Krouse v.
Graham,
562 P.2d 1022 (Cal. 1977) (ruling that plaintiff need not
visually perceive third-party injury to recover); Nazaroff v.
Superior Court,
145 Cal. Rptr. 657 (Cal. Ct. App. 1978)
(broadening concept of contemporaneous observation). Elden thus
came after a marked expansion of the applicability of bystander
liability.
The California Supreme Court's perception that bystander
liability had become too expansive and burdensome was exemplified
in Thing v. La Chusa,
771 P.2d 814 (1989), in which the
California Supreme Court reinforced its holding in Elden. In
Thing, the mother of a child who had been struck by a car and
seriously injured sought recovery for the emotional distress she
suffered when, after being told about the incident, she rushed to
her child's side and found him lying in the roadway. In denying
the mother's right to recover in those circumstances, the court
rejected the idea that foreseeability alone should determine
liability, observing that Dillon provided virtually no limit on
liability for nonphysical harm, id. at 826, and that since
Dillon, California courts had given little consideration to
avoiding the limitless exposure to liability created by the
foreseeability test. Id. at 821. The court stressed the need
for a clear rule by which courts may determine liability, and
concluded that limiting recovery to persons closely related by
blood or marriage was justified because those were the people
most likely to endure severe emotional distress as a result of
watching a loved one suffer. Id. at 828.
Although Thing clearly demonstrated the California Supreme
Court's frustration with the ambitious expansion of bystander
liability in the post-Dillon period, we note that that expansion
was the product of liberal applications of the other prongs of
the Dillon analysis, not of the intimate-familial-relationship
prong. Indeed, the post-Dillon experience in California led one
commentator to note that only the relationship prong related in
any significant way to foreseeability. John L. Diamond, Dillon
v. Legg Revisited: Toward a Unified Theory of Compensating
Bystanders and Relatives for Intangible Injuries,
35 Hastings
L.J. 477, 487-89 (1984). Thus, Elden and Thing, although surely
indicating California's desire to rein in the outer limits of
bystander liability, must be understood as products of
California's somewhat idiosyncratic experience with the cause of
action for bystander liability.
Our own experience does not parallel that of California. In
general, our courts have applied all the elements of the Dillon
Portee test restrictively. Indeed, some of our cases applying
Portee have interpreted the "marital or intimate familial
relationship" requirement as referring to close relatives or
immediate family members. E.g., Henderson v. Morristown Memorial
Hosp.,
198 N.J. Super. 418, 431 (App. Div.) (noting "[t]he remedy
afforded by Portee v. Jaffee is clearly designed to provide a
recovery for plaintiff's emotional distress resulting from the
death or serious bodily injury to a close relative"), certif.
denied,
101 N.J. 250 (1985). In Eyrick ex rel. Eyrick v. Dam,
193 N.J. Super. 244 (App. Div.), certif. denied,
97 N.J. 583
(1984), the court considered and rejected a claim for negligent
infliction of emotional injury brought by a woman who had
witnessed a circus leopard attack and kill the young child of a
close friend and neighbor, who had been entrusted to her care for
the afternoon. The woman's cause of action was based solely on
her status as a bystander in witnessing the child's horrible
death. The court concluded that her emotional injury would be
compensable only if the court were to extend the Portee doctrine,
which it refused to do. Id. at 259. Although the plaintiff had
sustained severe emotional distress as an eyewitness to the fatal
accident, she did not meet the relationship element of the Portee
test because of the absence of intimate family ties between her
and the victim.
We have similarly encouraged narrow applications of the
other prongs of the Dillon-Portee test. Those restrictive
applications include a requirement that the bystander
contemporaneously observe both the wrongful act and its resulting
harm. E.g., Carey v. Lovett,
132 N.J. 44, 62 (1993) (ruling that
father seeking to recover as bystander for malpractice that
resulted in death of his child several days after the child's
birth "must contemporaneously observe the malpractice and its
effects on the victim"); Frame v. Kothari,
115 N.J. 638, 649
(1989) (requiring contemporaneous observation of both act of
malpractice and fatal or gravely-injurious effects of that act on
victim); Johnson v. Mountainside Hosp.,
239 N.J. Super. 312, 327
(App. Div.) (interpreting Portee as holding that "a bystander may
not recover damages for emotional distress unless he has been
present and has observed the actual injury inflicted on a member
of his family"), certif. denied,
122 N.J. 188 (1990); Lindenmuth
v. Alperin,
197 N.J. Super. 385 (Law Div. 1984) (denying recovery
for emotional distress of mother from death of her child three
days after the child's birth); cf. Mercado v. Transport of New
Jersey,
176 N.J. Super. 234, 237 (Law Div. 1980) (holding that
Portee does not require close relative to witness accident
causing alleged emotional injury). We have likewise insisted on
a strong showing that the emotional injury be severe. E.g.,
Carey, supra, 132 N.J. at 62 (requiring with respect to
malpractice resulting in death of newborn, that "a mother must
prove that she suffered emotional distress so severe that it
resulted in physical manifestations or that it destroyed her
basic emotional security"; and that a father "must be shocked by
the results"); Frame, supra, 115 N.J. at 643 (noting that claim
based on emotional injury must be associated with aftermath of
accident, "such as bleeding, traumatic injury, and cries of
pain"). Moreover, our courts have acknowledged that all four
prongs of the Portee test must be met. E.g., Carey, supra, 132
N.J. at 62; see Eyrick, supra,
193 N.J. Super. 244.
In short, we have countenanced no rapid or radical expansion
of bystander liability since Portee. Nothing in our experience
with bystander liability counsels a departure from our accustomed
application of the traditional principles of tort law. Rather,
we are convinced that the solution to the posed question lies not
in a hastily-drawn "bright line" distinction between married and
unmarried persons but in the "sedulous application" of the
principles of tort law, which inform our ultimate determination
that a particular claimant is owed a duty of care. People
Express Airlines, Inc. v. Consolidated Rail Corp.,
100 N.J. 246,
254 (1985).
Although a foreseeable risk is the indispensable corner-stone of any formulation of a duty of care, not all foreseeable
risks give rise to duties. The imposition of a duty is the
conclusion of a rather complex analysis that considers the
relationship of the parties, the nature of the risk -- that is,
its foreseeability and severity -- and the impact the imposition
of a duty would have on public policy. Goldberg v. Housing
Auth.,
38 N.J. 578, 583 (1962). Ultimately, whether a duty
exists is a matter of fairness. Kelly v. Gwinnell,
96 N.J. 538,
544 (1984).
We have recognized, in numerous settings, that traditional
principles of tort liability can be adapted to address areas in
which recognition of a cause of action and the imposition of a
duty of care are both novel and controversial. E.g., Hopkins v.
Fox and Lazo,
132 N.J. 426 (1993) (imposing duty of care on real
estate brokers with respect to safety of visitors to "open-houses"); Weinberg v. Dinger,
106 N.J. 469 (1987) (imposing duty
of care on water companies to ensure adequacy of water-pressure
for fire safety); People Express Airlines, Inc., supra,
100 N.J. 246 (imposing duty of care to protect against foreseeable
economic losses of victim of negligence); Kelly, supra,
96 N.J. 538 (imposing duty of care on social hosts who serve alcohol to
visibly-intoxicated guests who are later involved in automobile
accidents).
Although novel, applying the standard of an intimate
familial relationship to an unmarried cohabitant such as Eileen
Dunphy and affording her the protections of bystander liability
is hardly unfair. She represents an eminently foreseeable but
clearly discrete class of potential plaintiffs. Moreover, the
other elements of the bystander cause of action under Portee -
contemporaneous observation, death or serious injury to the
victim, and severe emotional injury to the plaintiff -- structure
the kind of "particularized foreseeability" that ensures that the
class is winnowed even further and that limitless liability is
avoided. People Express Airlines, Inc., supra 100 N.J. at 263;
see also Hopkins, supra, 132 N.J. at 451-52 (noting that multi-factored standard defining broker's duty of care limits
liability) (Clifford, J., concurring).
One can reasonably foresee that people who enjoy an intimate
familial relationship with one another will be especially
vulnerable to emotional injury resulting from a tragedy befalling
one of them. Foreseeability based on that standard, as
recognized by the Appellate Division majority, preserves the
distinction that must be made between ordinary emotional injuries
that would be experienced by friends and relatives in general and
those "indelibly stunning" emotional injuries suffered by one
whose relationship with the victim "at the time of the injury, is
deep, lasting, and genuinely intimate." 261 N.J. Super. at 123.
Persons engaged to be married and living together may foreseeably
fall into that category of relationship. "[G]iven the widespread
reality and acceptance of unmarried cohabitation, a reasonable
person would not find the plaintiff's emotional trauma to be
'remote and unexpected.'" Elden, supra, 758 P.
2d at 591
(Broussard, J., dissenting) (citation omitted).
Nor can we discern any additional, unfair burden that would
be placed on potential wrongdoers in general, or, as in this
case, negligent drivers. The identical acts of reasonable care
that would have prevented the fatal accident that claimed the
life of Michael Burwell would have preserved the emotional
security of Eileen Dunphy. Certainly the extension of such a
duty of care to an engaged cohabitant as a foreseeable and
protectable person does not increase the burden of care or extend
it beyond what is ordinarily expected and appropriate for
reasonable drivers. See Hopkins, supra, 132 N.J. at 448
(emphasizing that duty owed to potential purchasers at "open
house" "arises . . . when . . . such an inspection is part of the
professional services that would be undertaken by a reasonable
broker").
Most recently, the Court in Carey, supra, employed
traditional tort doctrine in addressing bystander liability,
stating that under common-law-negligence principles, "the scope
of duty depends generally on the foreseeability of the
consequences of a negligent act, as limited by policy
considerations and concerns for fairness." 132 N.J. at 57. Such
an approach, as stated by Justice Broussard in his dissent in
Elden, recognizes that those in an intimate and familial
relationship are "foreseeably and genuinely injured by a
negligent defendant's acts," and allowing for their recovery
"both advances the goals of tort compensation and sufficiently
limits liability. To that end, a standard based on the
significance and stability of the plaintiff's relationship is
workable and fair." Elden, supra, 758 P.
2d at 591 (Broussard,
J., dissenting). We agree.
Central to a claim under bystander liability is the
existence of an intimate familial relationship and the strength
of the emotional bonds that surround that relationship. The harm
precipitating emotional distress must be so severe that it
destroys the emotional security derived from a relationship that
is deep, enduring, and intimate. The quality of the relationship
creates the severity of the loss. As we said in Portee, "no loss
is greater than the loss of a loved one, and no tragedy is more
wrenching than the helpless apprehension of death or serious
bodily injury to one of those whose very existence is a precious
treasure." 84 N.J. at 97.
Our courts have shown that the sound assessment of the
quality of interpersonal relationships is not beyond a jury's ken
and that courts are capable of dealing with the realities, not
simply the legalities, of relationships to assure that resulting
emotional injury is genuine and deserving of compensation. Thus,
"to achieve substantial justice in other cases, we have adjusted
the rights and duties of parties in light of the realities of
their relationship." Crowe v. DeGoia,
90 N.J. 126, 135 (1982);
see Kozlowski v. Kozlowski,
80 N.J. 378 (1979) (recognizing the
enforceability of support agreement between non-married
cohabitants based on consideration of longstanding close personal
relationship). Likewise, each time a court or jury assesses
damages for loss of consortium, the quality of the relationship
and thus the severity of the loss must be inquired into by the
factfinder. See, e.g., Bendar v. Rosen,
247 N.J. Super. 219, 228
(App. Div. 1991); see also Carr v. Carr,
120 N.J. 336, 352 (1990)
(applying principles of quasi-contract to protect rights acquired
as "a result of enduring, intimate personal relationships founded
on mutual trust, dependence, and raised expectations").
The task of exploring and evaluating an interpersonal
relationship when necessary to adjudicate claims arising from
that relationship poses no special obstacles in the context of
bystander liability. As noted by the Appellate Division:
Irrespective of the label placed upon a
particular relationship, it is a jury
question whether the inter-personal bonds
upon which the cause of action is based
actually exist. A defendant should always
have the right, even in the case of a parent
and child or a husband and wife, to test the
operative facts upon which the claim is based
irrespective of the de jure relationship.
[261 N.J. Super. at 122.]
We acknowledge that this critical determination must be
guided as much as possible by a standard that focuses on those
factors that identify and define the intimacy and familial nature
of such a relationship. That standard must take into account the
duration of the relationship, the degree of mutual dependence,
the extent of common contributions to a life together, the extent
and quality of shared experience, and, as expressed by the
Appellate Division, "whether the plaintiff and the injured person
were members of the same household, their emotional reliance on
each other, the particulars of their day to day relationship, and
the manner in which they related to each other in attending to
life's mundane requirements." Id. at 123.
Unlike the dissent, post at __ (slip op. at 10), we are
unpersuaded by the concerns of the California court expressed in
Elden and Thing that without a "bright line" definition of the
bystander-victim relationship, courts will not be able to
counteract fraudulent and meretricious claims. That
consideration does not outweigh the need to recognize claims that
are legitimate and just. Pieters v. B-Right Trucking, Inc.,
669 F. Supp. 1463, 1471 (N.D. Ind. 1987) (noting that "[a]n award of
damages for emotional distress resulting from the injuries and
death of a future husband is anything but fraudulent"). We agree
with the Appellate Division that
[t]o foreclose such a plaintiff from making a
claim based upon emotional harm because her
relationship with the injured person does not
carry a particular label is to work a
potential injustice, not only in this case
but also in too many other instances in which
the events leading to injury or death are
indelibly stunning, and where the emotional
injury is genuine and substantial and is
based upon a relationship of significant
duration that, at the time of injury, is
deep, lasting and genuinely intimate.
[Ibid.]
The California court also feared that the allowance of a
cause of action under such circumstances would intrude on the
privacy of the parties. Elden, supra, 758 P.
2d at 587. Of
course, even if the persons are married, probing inquiry into the
nature of their relationship will nonetheless occur. That does
in fact happen in many other contexts. See, e.g., Crowe, supra,
90 N.J. 126 (examining personal relationship for purposes of
equitable distribution); Bendar, supra,
247 N.J. Super. 219
(evaluating loss of consortium claim on basis of nature of
personal relationship). Moreover, the fact that people are
unmarried does not make that inquiry any more intrusive or
problematic. Pieters, supra, 669 F. Supp. at 1471 (noting that
"[p]roving damages will be no more difficult if [the plaintiff]
recovers for the distress caused by her fiance's injuries and
death").
The imposition of a duty of care, we have said, must not
only be fair, it must accord with sound public policy. Kelly,
supra, 96 N.J. at 544; Goldberg, supra, 38 N.J. at 582. We do
not find that bystander liability in favor of unmarried persons
who enjoy an intimate familial relationship that is substantial,
stable, and enduring is inimical to concerns of public policy.
We reject California's belief that the State's strong
interest in promoting marriage will be subverted if unmarried
cohabitants are given the same rights as married persons with
respect to the right to recover for the negligent infliction of
emotional injury. Elden, supra, 758 P.
2d at 586. In his
dissent, Justice Broussard correctly argues that allowing
recovery will not undermine the State's interest in promoting
marriage, because "[p]resumably, a person who would not otherwise
choose to marry would not be persuaded to do so in order to
assure his or her legal standing in a future personal injury
action should that person have the misfortune of witnessing the
serious injury of his or her spouse." Id. at 591.
We concur in that view. The State's interest in marriage
would not be harmed if unmarried cohabitants are permitted to
prove on a case-by-case basis that they enjoy a steadfast
relationship that is equivalent to a legal marriage and thus
equally deserves legal protection. Marriage will still maintain
its preferential status under the law. Allowing tort recovery in
circumstances such as these -- for persons who have developed an
emotional security from a sound and strong relationship -- will
not discourage marriage as a worthwhile and desirable
relationship or erode society's commitment to the institution of
marriage. Crowe, supra,
90 N.J. 126; Kozlowski, supra,
80 N.J. 378 (recognizing enforceability of support agreements made
between cohabitants to extent not based on relationship
proscribed by law or promise to marry).
Nor are we persuaded that allowing engaged cohabitants to
recover will have a significant adverse effect on automobile
insurance premiums sufficient to undermine any considerations of
public policy, as argued by defendant. Frame, supra, 115 N.J. at
650 (concluding that "any added cost to the medical profession
from the recognition of such a claim [for emotional distress
based on bystander liability] is outweighed by the suffering of
severe emotional distress from the shock of observing a
misdiagnosis that results in immediate injury to a loved one").
No empirical evidence supports such a claim.
Finally, we have no sense that the application of bystander
liability to an engaged cohabitant constitutes an avulsive
expansion of tort liability. The recognition of the justness and
fairness of such a cause of action is shared by other
jurisdictions. Some courts prefer to require a strict blood
relationship between the plaintiff and the victim for the
plaintiff to maintain a cause of action. E.g., Sollars v. City
of Albuquerque,
794 F. Supp. 360, 363-64 (D.N.M. 1992); Elden,
supra,
758 P.2d 582; Ferretti v. Weber,
513 So.2d 1333 (Fla.
Dist. Ct. App.), cause dismissed,
519 So.2d 986 (Fla. 1987);
Barnhill v. Davis,
300 N.W.2d 104, 107-08 (Iowa 1981); Trombetta
v. Conkling,
593 N.Y.S.2d 670, 671 (1993). Other states,
however, focus on the nature and integrity of the relationship
and have held that a blood tie between the plaintiff and the
victim need not exist for bystander recovery. See Pieters,
supra, 669 F. Supp. at 1471; Leong v. Takasaki,
520 P.2d 758,
760, 766 (Haw. 1974); James v. Lieb,
375 N.W.2d 109, 115 (Neb.
1985); Paugh v. Hanks,
451 N.E.2d 759, 766-67 (Ohio 1983); Sinn
v. Burd,
404 A.2d 672, 695 (Pa. 1979); Hildreth v. Marrs,
425 S.E.2d 157, 162-63 (W. Va. 1992). That latter view comports with
our own.
We conclude that under the circumstances of this case an unmarried cohabitant should be afforded the protections of bystander liability for the negligent infliction of emotional injury. The basis for that protection is the existence of an
intimate familial relationship with the victim of the defendant's
negligence.
An intimate familial relationship that is stable, enduring,
substantial, and mutually supportive is one that is cemented by
strong emotional bonds and provides a deep and pervasive
emotional security. We are satisfied that persons who enjoy such
an intimate familial relationship have a cognizable interest in
the continued mutual emotional well-being derived from their
relationship. When that emotional security is devastated because
one witnesses, in close and direct proximity, an accident
resulting in the wrongful death or grievous bodily injury of a
person with whom one shares an intimate familial relationship,
the infliction of that severe emotional injury may be the basis
of recovery against the wrongdoer.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Pollock, O'Hern and Stein
join in this opinion. Justice Garibaldi filed a separate
dissenting opinion. Justice Clifford did not participate.
SUPREME COURT OF NEW JERSEY
A-
26 September Term l993
EILEEN M. DUNPHY,
Plaintiff-Respondent,
v.
JAMES L. GREGOR,
Defendant-Appellant.
____________________________
GARIBALDI, J., dissenting.
I would reverse, not because I disagree with the majority's
basic assumption that an unmarried cohabitant will not suffer the
same emotional distress at the tragic death of her companion that
she would have suffered if she were married to the victim of a
fatal accident, but because I perceive no sufficiently limiting
principle in the majority's standard for deciding who qualifies
as an intimate family member. I do not doubt that many couples
who live together without formal marriage are bound by "emotional
ties as strong as those that bind formally married partners."
Elden v. Sheldon,
758 P.2d 582, 586 (Cal. l988). Yet, "The same
would often be true of very close friends." Ibid. A
demonstrable strength of emotional ties and a real potentiality
of severe emotional trauma, however, do not and should not end
our inquiry.
For example, in Portee v. Jaffee,
84 N.J. 88 (l980), we held
that to maintain a claim for negligent infliction of emotional
distress a parent actually had to witness the accident that had
resulted in her son's death. We did not believe that Mrs. Portee
would not have experienced severe emotional trauma had she only
heard an account of the tragic accident that befell her son.
Rather, we recognized that the class of persons able to recover
for the tort of negligent infliction of emotional distress as a
bystander had to be limited. We, therefore, set forth a four-factor test that a bystander-claimant would have to demonstrate
to prevail: "(l) 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." 84
N.J. at l0l.
In developing the Portee test, we relied on the decision of
the California Supreme Court in Dillon v. Legg, 44l P.2d 9l2
(l968). As the dissent below correctly noted, the California
Supreme Court "has since rejected an expansion of the cause of
action to a cohabitant relationship with similarities to a
marital relationship." 26l N.J. Super. at l25 (Muir, J.A.D.,
dissenting); see Elden, supra,
758 P.2d 582 (holding that
unmarried cohabitant could not recover for negligent infliction
of emotional distress as bystander). In its decision today, the
majority attempts to distinguish our experience in New Jersey
from the California experience by noting that "[a]fter Dillon,
California courts had expanded nearly all the boundaries of
liability set out in the several prongs of the Dillon analysis."
Ante at ___ (slip op. at 7).
I agree that we have hitherto construed all the elements of
the Dillon-Portee test narrowly. Unlike the majority, I would
continue to do so. I believe that the majority's opinion will
substantially expand the numbers of those seeking recovery for
bystander emotional distress. I perceive no public-policy reason
to support such an increase. Moreover, I think it will cause
confusion in many other areas of the law in which spouses
continue to be treated differently from unmarried cohabitants.
The Elden majority determined that courts must draw a bright line to limit the scope of liability of a negligent actor. As the Elden Court stated, no principled distinction exists between de facto spouses, de facto siblings, de facto parents, de facto grandparents, or de facto children. 758 P. 2d at 588. "The `problems of multiplication of actions and damages' [sic] that would result from such an extension of liability would place an intolerable burden on society." Ibid. (quoting Borer v. American Airlines, 563 P.2d 858, 864 (Cal. l977)).
Where we draw the line is "ultimately a question of fairness." Portee, supra, 84 N.J. at 101 (quoting Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962)). The proper analysis
should include a weighing of the relationship of the parties, the
nature of the risk, and the public interest in the proposed
solution. Goldberg, supra, 38 N.J. at 583. We should adopt a
rule that clearly delineates the scope of liability and clearly
defines those persons who may seek redress within the judicial
system. Although such a rule of thumb should guide the Court in
its analysis of all common-law causes of action, the Court should
apply it with added vigor in the context of causes of action for
negligent infliction of emotional distress because emotional
injuries, unlike physical injuries, are hard to define and the
number of potential claimants is virtually limitless.
The majority thinks that excluding unmarried cohabitants
from the class of eligible plaintiffs for bystander negligent
infliction of emotional distress is arbitrary line-drawing. I
agree, but a certain degree of arbitrariness is necessary in
setting the outer limits of tort liablity in general and in
setting the outer limits of liablity in the field of emotional
distress in particular. As Justice Pollock reminded us in Frame
v. Kothari,
115 N.J. 638, 649 (1989), "Whenever a court draws
lines, it risks the criticism of arbitrariness. Drawing lines,
however, is the business of the courts and lines must be drawn to
provide remedies for wrongs without exposing wrongdoers to
unlimited liability."
Moreover, "Everyone is subject to injury, disease, and
death. Common experience teaches that the injury or death of one
member of a family often produces severe emotional distress in
another family member." Id. at 642. Yet, Portee arbitrarily
required that to recover for negligent infliction of emotional
distress, plaintiffs had to be actual bystanders to the death or
injury of another. Does anyone believe that a mother who is told
that her child was killed crossing the street, or that a mother
who witnesses the prolonged agony of her child dying as a result
of a car accident that she did not see, suffers less emotional
distress than the mother who was present at the scene of the
accident?
We limit recovery to actual bystanders because
[e]motional distress is an intangible condition
experienced by most persons, even absent
negligence, at some time during their lives.
Close relatives suffer serious, even debilitating,
emotional reactions to the injury, death, serious
illness, and evident suffering of loved ones. . ..
That relative will have severe emotional distress
is an unavoidable aspect of the "human condition.
* * * The overwhelming majority of "emotional
distress" [that] we endure, therefore, is not
compensable.
[Thing v. La Chusa, 77l P.2d 8l4, 829 (Cal. l989).]
As defendant aptly points out, however, wherever the line is drawn, one can always find someone outside the line who arguably should be inside. For instance, if engaged cohabitants may recover, one could argue that engaged couples who do not cohabitate also should be allowed to recover. One could also argue that lifelong friends also should be allowed to recover?
However, allowing such recovery would bring us closer to
limitless liability, which we reject.
I believe, as did the dissenting judge below, that Portee meant to limit the class of plaintiffs eligible to recover for bystander emotional distress to those bystanders with a marital or blood relationship to the victim of the accident. Indeed, the plain language of Portee, "marital or intimate familial relationship," 84 N.J. at 101 (emphasis added), supports that interpretation. In fact, most of the cases have interpreted the Dillon-Portee "marital or intimate familial relationship" requirement as referring only to close relatives or immediate family members. E.g., Johnson v. Mountainside Hosp., 239 N.J. Super. 3l2, 327 (App. Div.) (interpreting Portee as holding that "a bystander may not recover damages for emotional distress unless he has been present and has observed the actual injury inflicted on a member of his family"), certif. denied, l22 N.J. l88 (l990); Henderson v. Morristown Memorial Hosp., l 98 N.J. Super. 4l8, 43l (App. Div.) (noting that "[t]he remedy afforded by Portee v. Jaffee is clearly designed to provide a recovery for plaintiff's emotional distress resulting from the death or serious bodily injury to a close relative"), certif. denied, l0l N.J. 250 (l985); Eyrick ex rel. Eyrick v. Dam, l 93 N.J. Super. 244 (App. Div.) (holding that close friend and neighbor of young
child killed by circus leopard when entrusted to her care could
not recover for negligent infliction of emotional distress),
certif. denied,
97 N.J. 583 (1984).
In addition to limiting the scope of the tort of negligent infliction of emotional distress, other valid public policy reasons argue in favor of excluding unmarried cohabitants from the class of persons eligible to recover for negligent infliction of emotional distress. Drawing the line at marriage conforms to the general expectation of society as reflected in the statutes of New Jersey that spouses should be treated differently than unmarried cohabitants. The New Jersey Legislature abolished common-law marriage in 1937. See N.J.S.A. 37:l-l0. Although social mores have changed since 1937, the Legislature has not re-authorized common-law marriage. Thus, the legal distinction between the duties and responsibilites of married and unmarried cohabitants remains. Moreover, the underlying rationale for the abolishment of common-law marriage still exists:
Inherent in the common law marriage are a non-recognition of the legal process, and a lack of commitment which often gives rise to an impermanent and ephemeral arrangement, such that economic support, let alone dependency, may be withheld randomly. The union, which in the eyes of the public remains an uncertainty, may dissolve at any time. Such a couple may not both use an identical surname, file joint tax returns, or be deemed an entity for census-taking, welfare or social security eligibility.
Thus, unmarried cohabitants, regardless of their demonstrable
level of commitment for one another, continue to be treated
differently than spouses for the purposes of the administration
of benefits under workers' compensation and insurance policies.
The distinction between the treatment of spouses and
unmarried cohabitants is apparent in other areas of the law. For
example, unlike spouses, unmarried cohabitants cannot inherit by
intestate succession. N.J.S.A. 3B:5-3; see Newburgh v. Arrigo,
88 N.J. 529, 54l (1982) (declining to find wife-in-fact to be
"heir"). Unmarried cohabitants also are not allowed to recover
for wrongful death under N.J.S.A. 2A:3l-4, the Wrongful Death
Act. See Sykes v. Propane Power Corp.,
224 N.J. Super. 686, 697
(App. Div. l988) (holding that plaintiff's status as unmarried
cohabitant barred her claim for wrongful death); Cassano v.
Durham, l
80 N.J. Super. 620, 626 (Law Div. l98l) (holding that
plaintiff who cohabitated with decedent without marriage was not
"surviving spouse" within meaning of intestacy statute and
therefore could not recover under Wrongful Death Act). Only
spouses, and not unmarried cohabitants, can receive alimony. See
Crowe v. De Gioia, 90 N.J. l26, l32 (l982) (holding that alimony
authorization statute, N.J.S.A. 2A:34-23, does not embrace action
on contract between unmarried cohabitants). N.J.S.A. 44:1-140(a)
requires spouses to support each other, but, absent an agreement
to the contrary, one unmarried cohabitant can walk out on the
other without any notice or restrictions. Cf. Kozlowski v.
Kozlowski,
80 N.J. 378, 386-87 (l979) (finding that enforcement
of an agreement between two unmarried parties is far different
from creating new cause of action in favor of an unmarried
cohabitant).
Furthermore, in Portee, supra, we noted that the causes of
action for loss of consortium and for negligent infliction of
emotional distress are quite similar. 84 N.J. at 98 n.6.
Nonetheless, although spouses may recover for loss of consortium,
unmarried cohabitants cannot. Leonardis v. Morton Chem. Co., l84
N.J. Super. l0, ll (App. Div. l982). The refusal to allow claims
for loss of consortium in the absence of a marriage is based on a
number of sound policy considerations, which apply equally well
to the present case. See Schroeder v. Boeing Commercial Airplane
Co. 7l
2 F. Supp. 39, 42-43 (D.N.J. l989). Perhaps most
persuasive is the recognition that once the cause of action no
longer depends on the marital status, no clear principle exists
to limit liability at all. "[O]n social policy grounds,
liability at some point must be delimited." Id. at 42.
"If a loss of consortium were to be extended
to include unmarried individuals, the
certainty of who is entitled to prosecute
such a claim is destroyed . . .. Friends and
relatives may also suffer a loss of society
and companionship when an endeared one is
injured. To compensate for such losses,
however, would involve costs far beyond those
society can afford."
[Ibid. (quoting Denil v. Integrity
Mutual Ins. Co., 40l N.W.2d l3, l5
(Wis. Ct. App. l986)).]
IV
Public-policy reasons aside, I would still object to the
majority's decision today because it adopts an unworkable and
ultimately unwise standard for determining who may qualify as a
plaintiff in bystander emotional-distress actions. The
majority's decision will open the door to more bystander claims
because many people live together in "significant other"
relationships. The inquiry into whether a bystander has the
requisite "close, substantial, and enduring relationship" will
require the courts and defendants to delve into the intimate
details of claimants' lives. The proofs will undoubtedly deal
with a couple's sexual fidelity, their commitment to one another
measured in time intervals, their economic interconnectedness and
interdependence, not to mention their estate plans. Undoubtedly,
speculation will arise regarding the particulars of a couple's
day-to-day relationship and the manner in which the couple
relates to one another in attending to life's mundane
requirements. See ante at __ (slip op. at 16). Yet, in the end,
only the two people involed in the relationship really know how
close and stable their relationship is. In the majority of
bystander emotional-distress actions, however, only the
bystanding survivor will be available to disclose the details of
the relationship. Clearly, the defendants will be at a
disadvantage. That disadvantage can be recouped only through
lengthy, expensive, and intrusive investigations.
Those are precisely the reasons that the California Supreme
Court cited in declining to extend the tort of negligent
infliction of emotional distress to cover unmarried cohabitants.
In its words,
A determination whether a partner in an
unmarried cohabitation relationship may
recover damages for emotional distress based
on such matters as the sexual fidelity of the
parties and their emotional and economic ties
would require a court to undertake a massive
intrusion into the private life of the
partners. Further, application of these
factors would not provide a sufficiently
definite and predictable test to allow for
consistent application from case to case.
And although I applaud the Court's effort to impose
standards that must be met before an unmarried cohabitant may
prevail in a bystander action, the standards remain necessarily
open-ended. The end result will be that courts will be forced to
evaluate all sorts of personal relationships and necessarily
assign to them a rank in some large hierarchy. Ranking
relationships is not our role. As eloquently noted in
Childers v. Shannon, l
83 N.J. Super. 59l, 595 (Law Div. l982),
It is not the function of this court to sift
through the myriad relationships of a party
in a negligence action to determine which of
those near and dear have suffered an injury
proximately caused by tortious conduct.
Should this court allow this plaintiff's
claim for loss of consortiun, other courts
will be forced to determine which plaintiffs
have relationships sufficiently meaningful to
entitle them to claim consortium. Plaintiffs
here were engaged to be married at the time
of the accident; how long an engagement will
support a claim? One month? One week?
"Going steady"? Or is cohabitation to be the
test, as it apparently was in Bulloch?
Again: For how long? Was there joint
payments of rent? Grocery bills?
As Chief Justice Wilentz and I noted in a prior case
involving negligent infliction of emotional distress,
"We acknowledge that the trend of the prior decisions in the area
of bystander emotional distress has been to expand liability. It
is not, however, the trend, but the social policy underlying it,
that should guide the development of the common law." Frame,
supra, ll5 N.J. at 638 (concurring opinion).
Again, I have no disagreement with the majority's basic
assumption that a person involved in "an intimate familial
relationship that is stable, enduring, substantial, and mutually
supportive [and] is cemented by strong emotional bonds and
provides a deep and pervasive emotional security" will suffer as
much emotional distress on the death of his or her partner as a
spouse. See ante at __ (slip op. at 21). Nevertheless, the need
to draw clear lines in this area of the law, coupled with the
expensive and undoubtedly arduous task of proving which
relationship meets the majority's standards, compels me to vote
to reverse.