CAPITOL REPORT by Lisa Chapland, Esq. @Lisac1997
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit
njsba.com.
Appellate Division to Reconsider Standing to File Portee Claim The Appellate Division will consider, on the merits, the familial relationship requirement to file a
Portee claim for negligent infliction of emotional distress. The NJSBA participated as
amicus curaie in the initial interlocutory appeal and submitted a brief in support of remanding the question back to the trial court for a jury finding on the issue in
Moreland v. Parks, Docket No. A-4754-16T4.
The trial court initially granted the defendants partial summary judgment denying a
Portee claim for the domestic partner of the child who was killed in an accident witnessed by family members. Moreland appealed the decision on an interlocutory basis, but the Appellate Division declined to consider the matter. Moreland took the appeal to the Supreme Court, which summarily reversed the Appellate Division, remanding the matter to consider the merits of the appeal.
In
Moreland, the biological mother, sibling and domestic partner of the mother witnessed an accident that resulted in the death of another child while on their way to a “Disney on Ice” show. The child was hit by a car that was struck by a fire truck attempting to make a U-turn in the vicinity of the family. Though both children called the biological mother and domestic partner “mom,” and the plaintiffs proffered facts indicating a strong familial relationship, including that the domestic partner lived in the home, the trial court ruled that the domestic partner lacked the requisite familial relationship for a claim of negligent infliction of emotional distress.
In the initial appeal and on remand, the association
submitted a brief challenging the trial court’s ruling as too narrow a reading of marital, legal, custodial or biological relationships to an injured person or decedent. The association argued that the standard of review for a
Portee claim is whether the bystander seeking to recover had a “close, substantial, and enduring relationship” with the decedent, citing
Dunphy v. Gregor, 136 N.J. 99, 101 (1994). In
Dunphy, the Supreme Court declined to draw a bright-line rule narrowing the class of potential claimants grounded in strict legal family relationships, considering whether a fiancée had standing to file such a claim. The Supreme Court set forth factors to consider when determining whether a familial relationship exists, including 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 whether the plaintiff and the injured person were members of the same household.
Relying on this standard, in its brief, the association urged the Appellate Division to reverse the trial court’s partial summary judgment order and remand the matter for further review and presentation to a jury applying the
Dunphy standard to define familial relationships.