On Aug.17, 2018, the court upheld a Portee (bystander) claim for the negligent infliction of emotional distress (NIED) even though the bystander was not related to the deceased infant or the infant's biological parent. Moreland v. Parks, ____  N.J. Super. ____ ( App. Div. 2018).

On Jan. 30, 2009, two-year old I'Maya Moreland, while holding the hand of Valerie Benning waiting to cross the street, was killed when struck by a vehicle and thrown 65 feet. I'Maya was not Benning's biological daughter; she was the daughter of I'Asia Moreland, Benning's same-sex partner.

In order to determine whether Benning's relationship with the decedent infant qualified as a “familial relationship” so as to permit an NIED claim, the court looked first at the relationship between Benning and I'Asia. They met and started dating in 2007, and started living together approximately 17 months before the accident, during which time they shared responsibility for the care of I'Maya as well as I'Asia's other biological child. Benning's godson also lived in the same household at the time. I'Maya was approximately 13 months old when Benning and I'Asia began their romantic relationship; within a few weeks thereafter I'Maya started calling Benning “mom.” In the ambulance, on the way to the hospital after the accident, Benning provided the EMT with I'Maya's medical history and I'Maya's likes and dislikes.

In the hospital, when Benning was told that I'Maya died, Benning became hysterical, had to be placed in restraints and agreed to be sedated so she could say her final farewells to I'Maya. Benning participated in I'Maya's funeral arrangements, including borrowing money from her relatives to help finance the funeral. At her deposition, when asked to describe her reaction immediately after the accident, Benning testified that “the death of anyone's child is devastating, but to talk about your own or one that you love like your own is even harder.”

Benning and I'Asia became engaged almost three years after the accident and married approximately five years after the accident.

Under Portee v. Jaffee, 84 N.J. 88, 101 (1980), an NIED claim requires proof of four elements:

1. negligence causing the death or serious physical injury of another;
2. a marital or intimate, familial relationship between plaintiff and the injured person;
3. observation of the death or injury which causes
4. emotional distress of plaintiff.

The issue before the court, in reversing and remanding the trial court's granting defendant's summary judgment motion, was whether Benning's relationship fell within the second (familial) requirement. In finding that she did, the court properly pointed out that

[T]he social and legal concept of “family” has significantly evolved since the Court decided Portee in 1980. Thirty-eight years ago gay, lesbian, and transgender people were socially shunned and legally unprotected against invidious 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.

However, the court, in rather emphatic terms, noted that society's attitudes have changed and the law has progressed to meet the new mores of society, i.e., “the overwhelming number 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.”

Interpreting the “familial relationship ” requirement of Portee, the court recognized that such a relationship amounts to a “stable, enduring, substantial, and mutually supportive (relationship) … that is cemented by strong emotional bonds and provides … deep and pervasive emotional security.” In holding that Benning's relationship met this standard, the court noted that “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.”

In order to uphold Benning's bystander claim, the court had to extend Portee not only to include gays but also extend it from allowing such a claim for a fiancée, Dunphy v. Gregor, 136 N.J. 99 (1994), to Benning, who was not yet engaged to I'Asia.

Moreland represents a continued expansion of Portee. Indeed, prerequisite #3 (observation) was previously extended, by this author, to permit a plaintiff to recover without actually observing the horrific event (child burning to death in house fire) so long as the plaintiff (mother) was “sensorially aware” of it (knew her daughter was in the house as the plaintiff watched it burn down). Ortiz v. Pittenger, 382 N.J. Super. 552 (Law Div. 2004).

The decision in Moreland is significant because it demonstrates how the law is not stagnant but changes as society changes. In effect, this decision recognizes, as this author did while sitting in the family division, that in today's environment, an engagement ring or a wedding ring is no longer considered as significant, as it was in days past, to create a family. Therefore, the law must continuously expand and adjust to keep up with society and remain viable.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.