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New Jersey Appeals Court Rules Lesbian Co-Parent May Seek “Bystander” Emotional Distress Compensation for Death of Child She was Raising With Her Same-Sex Partner

Posted on: August 21st, 2018 by Art Leonard No Comments

 

The New Jersey Appellate Division, the state’s intermediate appeals court, issued an important decision on August 17 expanding the range of “bystanders” to whom negligent actors may have liability for causing emotional distress to include non-marital same-sex families. A unanimous three-judge panel, taking account of the momentous developments in public attitudes about LGBT families over the past 38 years, ruled in Moreland v. Parks, 2018 WL 3945312, 2018 N.J. Super. LEXIS 120, that the lesbian co-parent of a young child who died as a consequence of a tragic traffic incident should not have been dismissed from the case by a Mercer County trial judge.

It was as recently as 1980 that the New Jersey Supreme Court first recognized, in the case of Portee v. Jaffee, 84 N.J. 88, that a mother who witnessed the agonizing death of her young son, who had become trapped between an elevator’s outer doors and the wall of the elevator shaft, could sue for the emotional distress she suffered due to the negligence of the defendant building owners and the elevator company in causing her son’s death. Through a slow process of doctrinal evolution, the courts have gradually shed their earlier reluctance to award damages for emotional distress to people who had not themselves suffered a direct physical injury, but the courts were cautious about expanding the range of such potential liability.

Portee is New Jersey’s controlling state Supreme Court precedent in “bystander” cases, and the Portee court ruled that bystanders eligible to seek compensation for severe emotional distress in such cases should be limited to “a marital or intimate, familial relationship between the plaintiff and the injured person.” In a further development in New Jersey law, the Supreme Court ruled in Dunphy v. Gregor, 136 N.J. 99 (1994), that the fiancé of a man killed in a traffic incident, who had witnessed the vehicle strike his body and attempted to comfort him while awaiting an ambulance, could sue the driver of the vehicle for negligent infliction of emotional distress, even though couple were not yet legally married.  The court emphasized that they were cohabiting and engaged to be married at the time, and considered this a sufficient “familial relationship.”

In the Moreland case decided on August 17, co-plaintiff Valerie Benning was standing on a street corner with her then-same-sex partner (now spouse), I’Asia Moreland and their children. Benning and Moreland had been living together for seventeen months, and were jointly raising Moreland’s two children (who were born before their relationship began) and Benning’s young godson.  Benning was holding the hand of two-year-old L’Maya as they waited for the traffic signal to change so they could cross the street to attend the “Disney on Ice” show playing at the Sun Bank Arts Center in Trenton.  Suddenly, a fire truck collided in the intersection with a pickup truck, and the pickup truck struck L’Maya, who was “propelled” sixty-five feet south of the intersection, and who later died from her injuries in the hospital.

Benning was also knocked down, and the next thing she remembered was lying on the ground and the confused panic that ensued around her, struggling to her feet and running towards L’Maya and hearing screaming from observers of the scene, then the ambulance trip to the hospital and the hysteria she suffered upon learning L’Maya was dead. The opinion quotes extensively from her deposition describing her experience, and the emotional and psychological trauma she suffered.

Moreland and Benning filed suit against multiple defendants, claiming a variety of damages. The Appellate Division’s ruling was about the trial judge’s decision to grant the defendants’ motion to dismiss Benning’s claim for compensation for the emotional distress she suffered as a “bystander” to the events causing L’Maya’s death.

At the time of this incident in 2009, Moreland and Benning were not legally related to each other, and Benning was not legally related to L’Maya. (Marriage equality did not come to New Jersey until several years later, at which time the women did marry, but as of 2009 they had not registered as N.J. civil union partners.)

The trial judge had to determine whether Benning’s relationship to L’Maya came within the scope of the New Jersey Supreme Court’s ruling in Portee, of an “intimate, familial relationship between plaintiff and the injured person.” The trial judge, who is not named in the court’s opinion, said that an “intimate” relationship would not “suffice” unless it could be considered “familial.”  “There is a requirement that they have to be family,” wrote the judge.  “Portee talks about familial relationship but it didn’t say family-ish or something similar to a family.  It says familial and there are cases that must use the word family.  It has to be family and there’s no question of fact that Ms. Benning was not.  The evidence is that she was a girlfriend and she might have been part of the child’s household, but by any definition that I can find in the law about family, Ms. Benning doesn’t meet it.  The undisputed facts are that she was neither a biological or adoptive parent.”

The judge also noted the lack of any expert psychological testimony. To the trial judge, it wasn’t enough that there was evidence that within weeks of Benning and Moreland living together, L’Maya had begun referring to Benning as “mom.” Said the judge, “just using the word mom all by itself doesn’t count for much, whether there’s a secure relationship, a bonded relationship, a reliant relationship, whether this is someone that the two-year-old would have looked to for a comfort, the facts just aren’t there to be able to know those things.”

The trial judge pointed out that the kind of evidence that would exist if there was a custody or visitation or adoption proceeding, such as a psychologist’s report, was unfortunately missing in this case.

The court also distinguished the Dunphy case, writing, “Ms. Moreland and Ms. Benning weren’t even engaged at the time. I understand the laws regarding same sex relationships had change over time but there was a statute that did allow for that in New Jersey and whether they could have availed themselves of any such laws in other jurisdictions hasn’t been addressed in any of the papers” submitted to the court.  In ruling to dismiss the claim, the trial judge wrote, “Ms. Benning was a part of a very small child’s life for 17 months at most.  There’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

Benning’s lawyer argued that dismissing this claim was inappropriate, because the question of “familial relationship” required a full hearing of the facts about this relationship, and should not be disposed of as a “matter of law” without an opportunity for such a hearing. They asked the Appellate Division to review this dismissal of the claim, but at first it refused to do so.  Then they appealed to the New Jersey Supreme Court, which directed the Appellate Division to accept the appeal, solely to address the question “whether Benning falls within the class of litigants entitled to bring a civil action against defendants under the tort of negligent infliction of emotional distress.”

Writing for the Appellate Division panel, Judge Jose L. Fuentes traced the development of this legal doctrine in New Jersey through Portee and Dunphy, writing, “Critical to our analysis here is not only the Dunphy Court’s unambiguous rejection of any attempt to restrict the claimants to married persons, but also the articulation of the public policy underpinning the tort itself: ‘The basis for that protection is the existence of an intimate familial relationship with the victim of the negligence. . . When that emotional security is devastated because one witnesses, in close and direct proximity, an accident resulting in the wrongful death or grievous bodily injury of a person with whom one shares an intimate familial relationship, the infliction of that severe emotional injury may be the basis of recovery against the wrongdoer.”

The Appellate Division concluded that Benning had “presented sufficient evidence from which a jury could find that she and two-year-old L’Maya had an intimate familial relationship at the time of the child’s tragic death.” The trial court’s job in ruling on this type of motion was to view the evidence presented up to that point in “the light most favorable to the non-moving party,” and to ask whether a jury could conclude from that evidence that Benning and L’Maya had a familial relationship.  “A rational jury can find that Benning was a de facto mother to this child, and felt her loss as deeply as any parent facing that horrific event,” wrote Judge Fuentes.  “Benning’s deposition testimony supports this finding.”

Fuentes’ opinion noted how social change has expanded the public’s understanding far beyond what it was when Portee was decided in 1980. “Thirty-eight years ago,” he wrote, “gay, lesbian, and transgender people were socially shunned and legally unprotected against invidious discrimination in employment, housing, and places of public accommodation under our State’s Law Against Discrimination.  The notion of same-sex couples and their children constituting a ‘familial relationship’ worthy of legal recognition was considered by a significant number of our fellow citizens as socially and morally repugnant and legally absurd.  The overwhelming majority of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry; our laws, both legislatively and through judicial decisions, now recognize and protect the rights of LGBTQ people to equal dignity and treatment under law.”

The court emphasized that “what constitutes a ‘familial relationship’ is perforce a fact-sensitive analysis, driven by evolving social and moral forces,” so to rely on the understandings prevailing when Portee was decided was inappropriate, and the trial judge should have denied the defendants’ motion and given Benning an opportunity to provide more evidence about the nature of the relationship. The court suggested that Benning would have been “better served” had her counsel introduced evidence in opposition to the defendants’ motion “with certifications from individuals who knew and saw these two women interact with these children on a day-to-day basis,” as this could have “assisted the motion judge in his decision.”

Benning was represented on appeal by Robin Kay Lord, with Clifford D. Bidlingmaier III, of Kardos, Rickles, Hand & Bidlingmaier, assisting on the brief. The case attracted amicus participation in briefing and arguing the appeal from Garden State Equality, New Jersey’s state LGBT rights organization, represented by Jennifer L. Hamilton, and from the New Jersey State Bar Association, whose out gay former president Tom Prol also presented a brief and oral argument.