The Supreme Court is the “guardian” of New Jersey’s common law. Accordingly, it is the function of the court to fashion a tort law that comports with our social concepts of “basic fairness.” The courts have frequently stated that the imposition of “duty” invokes “a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”

In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court created the tort of negligent infliction of emotional distress (NIED). The plaintiff, Renee Portee, witnessed the agonizing death of her seven-year old son, Guy, when he became trapped by an elevator door. The court held that a person who was not physically injured in an accident may recover damages for emotional distress caused by witnessing the injury of another, in the following circumstances:

  1. The death or serious physical injury of another;
  2. A marital or intimate familial relationship;
  3. Observation at the scene of the accident; and
  4. Severe emotional distress.