On Jan. 30, 2009, plaintiff Valerie Benning and her same-sex partner, I’Asia Moreland, were living together with the partner’s young children and plaintiff’s godson. While the five were waiting to cross a street that day, they witnessed the collision of a fire engine and pickup truck, the latter of which struck the two-year-old child, causing her death. The trial judge dismissed Benning’s claim for emotional distress damages embodied in a complaint filed by both partners, and the Appellate Division denied leave to appeal from the interlocutory order dismissing the claim, but the Supreme Court granted the application and summarily remanded to the Appellate Division to determine “whether plaintiff may pursue her claims for negligent infliction of emotional distress” under Portee v. Jafee, 84 N.J. 88 (1980). On Aug. 17, in Moreland v. Parks, the Appellate Division concluded that the Law Division had improperly dismissed the claim as a matter of law, and remanded for further proceedings.
The Moreland decision authorizes a plaintiff in a same-sex relationship, prior to the legalization of same-sex marriage, to proceed with her claims. The decision does not expand the universe of individuals who can sue under Portee as bystanders for negligent infliction of emotional distress, but merely restates the requirements: “(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; and (4) resulting severe emotional distress.” The opinion also acknowledges that since Portee, the Supreme Court had enlarged the class of litigants when necessary to serve the underlying public policy based on the “existence of an intimate familial relationship with the victim of the [tortfeasor’s] negligence.” In Dunphy v. Gregor, the court had permitted a fiancée of the decedent to bring a claim but denied expansion in McDougall v. Lamm to allow a litigant to sue who had witnessed the traumatic death of a pet.
