Portee Claims, and the Need to Have Witnessed the Horrific Event

Litwin v. Whirlpool Corp., 436 N.J. Super. 80 (App. Div. 2014).  In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court established “a cause of action for damages to a bystander as a result of witnessing an injury-producing event to one with whom the bystander has an intimate or familial relationship,” as this opinion by Judge Sapp-Peterson summarized it.  One element of a Portee claim is “[o]bservation of the death or injury at the scene of the accident.”  The issue here, on leave to appeal granted after the Law Division awarded partial summary judgment to certain defendants, was whether, under the facts of this case, plaintiff had satisfied that test.  An additional question was whether plaintiff had made a sufficient case for severe emotional distress.  Applying the same summary judgment standard that governed in the Law Division, but reviewing legal conclusions de novo, the Appellate Division reversed on both issues.

The facts were as follows.  Late one night, plaintiff and his stepson were awoken by the sound of a smoke detector that indicated a fire in their home.  They saw smoke rising from downstairs and sheltered in plaintiff’s bedroom.  The stepson later ran into the hallway, which was smoky and full of flames.  Plaintiff called out to him, but when the stepson did not respond, plaintiff, believing that the stepson had escaped, himself got out through a second-floor window and was rescued.  Shortly after that, however, he saw firefighters bringing his stepson’s body, still burning and smoking, with his skin melting, out of the house.  The stepson had third-degree burns over 56% of his body.  He later died.

Attributing the fire to a defective Whirlpool dishwasher model that had been recalled due to a fire hazard, plaintiff sued Whirlpool and two defendants who had serviced the dishwasher in connection with the recall.  Whirlpool settled.  The other two defendants pursued a motion for partial summary judgment on the two issues discussed above.

In reversing the summary judgment, Judge Sapp-Peterson found the second issue fairly easy:  plaintiff had adduced sufficient evidence of post-traumatic stress disorder to present a claim for severe emotional distress to a jury.  The more involved issue, however, was whether plaintiff had met the Portee requirement of having observed the injury to his stepson.  The panel found that he had.  “A jury could reasonably infer from [the evidence] the magnitude of emotional distress plaintiff experienced because he had been in the fire, was an eyewitness to his son still in the burning house, and observed [his] smoldering body being removed from the burning house….  [I]t was not necessary for him to have been inside his home observing his son’s body burning in order to satisfy the observation prong supporting a Portee claim.”  Quoting Ortiz v. John D. Pittenger, Builder, Inc., 382 N.J. Super. 552, 561 (Law Div. 2004), which itself had relied on an out-of-state case, Judge Sapp-Peterson stated that “[f]ire cases are unique because the flames are likely to hide the victims from the view of those present at the scene.  To disallow recovery to plaintiffs in such cases merely because they did not actually view the injuries being inflicted on the bodies of the victims defies reason and common sense” (emphasis in Ortiz).  The panel remanded the case for further proceedings.