In Portee v. Jaffee, 84 N.J. 88 (1980), the plaintiff witnessed her son’s painful, slow death while he was trapped for four and one-half hours in an elevator shaft although she herself had not been at risk for physical injury. Holding that, under certain very limited circumstances, negligence liability could be imposed for mental or emotional distress even in the absence of physical harm, the Court set forth the following four elements for a cause of action for negligent infliction of emotional distress:
1) the death or serious physical injury of another caused by defendant’s negligence;
2) a marital or intimate, familial relationship between plaintiff and the injured person;
3) observation of the death or injury at the scene of the accident;
4) resulting severe emotional distress. Id. at 101.
This four-part test “has since become a mainstay of New Jersey tort law. Jablonowska v. Suther, 195 N.J. 91 (2008). And as the Portee Court held, “[t]he…requirement – that the plaintiff witness the incident which resulted in death or serious injury – is…essential.” Portee, at 99. The Portee Court went on to explain:
Discovering the death or serious injury of an intimate family member will always be expected to threaten one’s emotional welfare. Ordinarily, however, only a witness at the scene of the accident causing death or serious injury will suffer a traumatic sense of loss that may destroy his sense of security and cause severe emotional distress. Portee, at 99.
It is clear that the observation of another as required by Portee involves sensory perception of one of the five senses. See Mansour v. Leviton Mfg. Co., Inc., 382 N.J. Super. 594, 890 A.2d 336 (App. Div. 2006). In Jablonowska v. Suther, 195 N.J. 91, 111, 948 A.2d 610 (2008), our Supreme Court, in addressing the first and third elements, reiterated the principle that "[t]he viability of Portee claims depends only on whether the plaintiff has had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises." Id. at 107, 948 A.2d 610 (emphasis added).
In addition to having a familial relationship, your emotional distress must be severe or amount to the permanent loss of a bodily function as is required by the law. The verbal threshold requires a showing of injuries that constitute a permanent loss of a bodily function. Collins v. Union County Jail, 150 N.J. 407 (1997). To satisfy the threshold, therefore, plaintiffs must prove by objective medical evidence that, as the result of the accident they have sustained an injury that is permanent and that the injury has caused a substantial loss of a bodily function. Brooks v. Odom, 150 N.J. 395, 402-403 (1997).
It is especially important that a doctor verify the plaintiffs’ subjective expressions of emotional distress by examination and observation. Randall v. State, 277 N.J. Super. 192, 197 (App. Div. 1994) (citing Oswin v. Shaw, 129 N.J. 290 (1992)); see Collins, supra, 150 N.J. 407, 418 (plaintiff’s psychologist verified his diagnosis through a year-long course of evaluation and treatment). An expert must do more than simply parrot what his patient tells him. Randall, supra, 277 N.J. Super. at 198. It is not enough to satisfy the requirements of causation and permanency for the expert to state, in a conclusory fashion, that the accident caused the plaintiff’s symptoms and that they are permanent. Ibid. Such conclusions must be supported by an explanation of how, from a medical point of view, the accident “caused the symptoms plaintiff describes and why, from a medical point of view, they are considered permanent.” Ibid., citing Buckelew v. Grossbard, 87 N.J. 512 (1981).
If you have been unfortunate enough to witness a loved one get seriously injured or killed in an accident, Verp & Leddy can help to get you and your loved one compensated.