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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.

New Jersey Supreme Court Unanimously Rejects Stay in Marriage Ruling; Same-Sex Couples Can Marry on October 21

Posted on: October 18th, 2013 by Art Leonard No Comments

Refusing the Christie Administration’s request to stay Judge Mary Jacobson’s September 27 ruling that same-sex couples have a constitutional right to marry in New Jersey, the state’s supreme court unanimously ruled on October 18 that Jacobson’s order will go into effect on October 21.  Although the court will hear oral arguments in January on the merits of the case, the opinion by Chief Justice Stuart Rabner strongly signals that the state will most likely lose the appeal.  “Because, among other reasons, the State has not shown a reasonable probability of success on the merits,” Rabner wrote, “the trial court’s order — directing State officials to permit same-sex couples, who are otherwise eligible, to enter into civil marriage starting on October 21, 2013 — remains in effect.”

The underlying basis for these rulings can be found in the New Jersey Supreme Court’s 2006 ruling, Lewis v. Harris, where a majority of the court held that under the New Jersey constitution same-sex couples were entitled to the same rights and benefits of marriage as different-sex couples, at least to the extent that the state could confer such rights.  (The remaining justices, concurring in part, opined that same-sex couples should be entitled to marry.)  At that time, the court left it up to the legislature to decide whether to allow same-sex couples to marry or to provide some alternative status that would provide the same rights and benefits.  The legislature responded by passing a Civil Union Act, and established a commission to review the implementation of the Act and report back on whether it was accomplishing what was required in terms of equal treatment.  The Review Commission subsequently issued a report finding that civil union partners were not enjoying equal treatment, either from government officials or private actors.

The legislature passed a marriage equality bill in 2012, but Governor Chris Christie vetoed it, arguing that the issue should be decided by the voters in a referendum.  Legislative leaders refused to authorize a referendum, but have until January 14, 2014, to attempt to override the governor’s veto.  Such a vote was expected to be held during the lame duck session of the legislature after the November election.

Lambda Legal, which had represented the plaintiffs in Lewis v. Harris, filed an application with the Supreme Court to reopen the case and order the state to allow same-sex marriages, submitting the Commission Report as its main evidence on unequal treatment.  The Court was evenly divided about whether to go forward, ultimately advising that a new case should be initiated in the trial court to establish a factual record showing unequal treatment.  Lambda Legal then filed a new case, representing Garden State Equality, a gay rights organization, and several same-sex couples.  Judge Jacobson of Mercer County Superior Court denied the state’s motion to dismiss the case last year, holding that plaintiffs could proceed to discovery.  In the meantime, on June 26, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in U.S. v. Windsor, and the federal government subsequently announced that it would recognize lawfully contracted same-sex marriages.  Various federal agencies made clear, however, that under Windsor only marriages would be recognized, not civil unions or domestic partnerships.  Lambda Legal then filed a summary judgment motion in the New Jersey case, arguing that New Jersey Civil Unions clearly failed the state constitutional requirement articulated in Lewis v. Harris, because they were not recognized for any federal purposes.

In opposing Lambda’s motion, the Christie Administration argued that it was not the state’s fault or responsibility that the federal government was denying recognition to civil unions.  The state argued that plaintiffs should be suing the federal government.  As the state had not taken any action on this subject after the Windsor decision, the state argued that there was no “state action” to challenge in this case.  Judge Jacobson decisively rejected this argument and all others advanced by the stat,e in her September 27 ruling granting summary judgment to Lambda, and she subsequently rejected the state’s application to stay her ruling.

The Christie Administration asked the Appellate Division to stay the ruling, and asked the Supreme Court to accept the case for a direct review.  The Supreme Court agreed to review the case directly, and also transferred the application for the stay from the Appellate Division.  Keeping an entire state in suspense until the 11th hour, the court issued its ruling upholding Jacobson’s denial of the stay application on Friday afternoon, just days before Jacobson’s order was to take effect a minute after midnight on Monday morning.

Although the grounds for granting or denying a stay and the grounds for an ultimate ruling on the merits are not the same, the court’s unanimous decision makes it very unlikely that the state would ultimately prevail on the merits.   “Because State law offers same-sex couples civil unions but not the option of marriage,” wrote the Chief Justice, “same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.”  Rabner pointed out that the Civil Union Act no longer achieves the purpose that the court had specified in Lewis v. Harris.  “The State’s statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners.  The trial court therefore correctly found cognizable action by the State.  We conclude that the State has not shown a reasonable probability or likelihood of success on the merits.”

The court also rejected the state’s argument that it would be harmed if the order were not stayed, and on the question of balance of harms, showed that staying the decision would be immediately harmful to same-sex couples who were denied the right to marry because of the long list of federal rights and benefits that would be denied to them.  “Plaintiffs highlight a stark example to demonstrate the point,” wrote Rabner.  “If a civil union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections.  The balance of hardships does not support the motion for a stay.”

Judge Jacobson had noted that in cases presenting questions of significant public importance, the public interest also is considered.  “What is the public’s interest in a case like this?” asked the Chief Justice.  “Like Judge Jacobson, we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds. . .  We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples.”

The court concluded, “The trial court’s order dated September 27, 2013, remains in full force and effect.  State officials shall therefore permit same-sex couples, who are otherwise eligible, to enter into civil marriage beginning on October 21, 2013.”

According to news reports from New Jersey, Newark Mayor (and U.S. Senator-elect) Cory Booker has already planned to conduct marriages at City Hall for a group of same-sex couples at one minute after midnight on Monday morning, and several county registrars, anticipating the possibility that the stay would be denied, had begun accepting applications for marriage licenses on Friday morning to comply with the 72-hour waiting period between license and marriage ceremony, even though state officials had cautioned them not to take action until the Supreme Court had ruled.  Since it is now inevitable that same-sex couples will win – have already virtually won – the right to marry in New Jersey, an override vote in the legislature, which will require some Republicans to vote to override, seems very likely to succeed as well.

New Jersey Marriage Case Moves Swiftly to State Supreme Court

Posted on: October 14th, 2013 by Art Leonard No Comments

After Mercer County Superior Court Judge Jacobson issued her decision on September 27 holding that same-sex couples have a state constitutional right to marry in New Jersey, Gov. Chris Christie reiterated his opposition to having this issue decided by the courts and announced that the state would ask the NJ Supreme Court to take up the case up directly on appeal, by-passing the NJ Appellate Division of the Superior Court.  At the same time, the State filed a petition asking Judge Jacobson to stay her decision pending the appeal.  Judge Jacobson denied the motion for a stay on October 10, confirming that her decision will go into effect on October 21.  The State filed papers appealing her ruling on the motion to the Appellate Division.  The plaintiffs, who agree that if this case is to go on appeal it should by-pass the Appellate Division, filed papers to that effect as well.  On October 11, the Supreme Court filed an Order, granting the State’s motion “for direct certification” and, at the same time, announcing “because the issues raised in the stay motion presently pending in the Superior Court, Appellate Division, are closely related to the issues raised in the appeal, the Court is taking jurisdiction of the stay motion subject to the briefing schedule already established by the Appellate Division by order dated October 10, 2013.”

Translating all this legalese into English:  The N.J. Supreme Court will decide on the State’s appeal as to the stay sometime this week.  My bet is that they will reverse Judge Jacobson’s denial of the stay, not because there is anything wrong with the legal reasoning of her opinion, but because, mainly as a political matter, they will not require the state to issue marriage licenses to same-sex couples until they — the Supreme Court — have ruled on the merits of the State’s appeal of Judge Jacobson’s September 27 decision.  In terms of precedent for this, I would note that the 9th Circuit granted a stay of US District Judge Walker’s decision in the Proposition 8 case, and subsequently ruled in favor of invalidating Prop 8 once it reached the merits of the case.  The stay was granted in the Prop 8 case even though there was a serious challenge to the standing of the Prop 8 proponents to appeal the trial court’s ruling.  Whatever the legal analysis of New Jersey’s law on the availability of stays pending appeal, as a practical matter I would be amazed if the N.J. Supreme Court would let stand Judge Jacobson’s original September 27 order before the Supreme Court had a chance to consider the case on the merits.

The Supreme Court has established an expedited schedule for dealing with the appeal on the merits.  The State’s brief is due by November 4, amicus briefs and motions seeking permission to file them are due by November 12, answers to the motions for permission to file amicus briefs are due by November 18, the Plaintiffs’ brief is due by November 25, any reply briefs and parties’ briefs responding to the amicus brief are due by December 3, and the case will be argued on January 6 or 7 (depending what else is pressing on the court’s calendar).

This is lightning fast for an appeal of a trial court ruling – to be argued just over 3 months after the trial court’s ruling was issued – which suggests that the court sees this case as urgent now that the federal government is recognizing same-sex marriages and NJ civil union couples are being denied numerous rights and benefits that could otherwise be available to them under federal law if they were allowed to marry.

Placing the argument during the first week in January raises the possibility that the argument will not have to be held if the legislature gets its act together and overrides Gov. Christie’s veto of the marriage equality bill during the lame duck session after the November election.  If the bill is enacted over the governor’s veto, the Court would probably respond favorably to a motion to dismiss the appeal as moot.