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.

Moreland focused on the second element enumerated in Portee, relationship, and found there was sufficient evidence in the record from which a jury could conclude that the plaintiff had had an “intimate, familial relationship” with the two-year-old victim. The Appellate Division acknowledged that the concept of a “familial relationship” is a “fact-sensitive analysis, driven by evolving social and moral forces” and that the social and legal concept of “family” has “significantly evolved” since Portee had been decided in 1980. The rights of the LGBTQ community have progressed significantly in that time, and today same-sex couples may legally marry and have children, and the fact that the same-sex partner of a biological parent can be a “psychological parent” enhances that view. See V.C. v. M.J.B, 163 N.J. 200 (2000). The Moreland opinion then looks to Dunphy, which held that persons who enjoy “an intimate familial relationship have a cognizable interest in the continued mutual emotional well-being derived from their relationship” such that if he or she “witnesses, in close and direct proximity, injuries to a person with whom one shares an intimate familial relationship,” the emotional injury may be a basis for recovery. Factors that identify and define “intimacy” and the “familial nature of such a relationship” were said to include, “(1) the duration of the relationship; (2) the degree of mutual dependence; (3) the extent of common contributions to a life together; (4) the extent and quality of shared experience; and (5) whether the plaintiff and decedent (or seriously injured person) 'were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements.'”

In the view of the Appellate Division, plaintiff Benning presented sufficient evidence from which a jury could find that she and the two-year-old child had an “intimate familial relationship” at the time of the child's death and that therefore she should be able to recover for negligent infliction of emotional distress.

We agree with the holding in Moreland and are comfortable that a jury should determine if plaintiff Benning had the requisite “intimate familial relationship” that both Portee and Dunphy contemplated. Our law continues to evolve in a positive direction.