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The Supreme Court is the "guardian" of New Jersey's common law. Accordingly, it is the function of the court to fashion a tort law that comports with our social concepts of "basic fairness." The courts have frequently stated that the imposition of "duty" invokes "a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution."

In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court created the tort of negligent infliction of emotional distress (NIED). The plaintiff, Renee Portee, witnessed the agonizing death of her seven-year old son, Guy, when he became trapped by an elevator door. The court held that a person who was not physically injured in an accident may recover damages for emotional distress caused by witnessing the injury of another, in the following circumstances:

1. The death or serious physical injury of another;
2. A marital or intimate familial relationship;
3. Observation at the scene of the accident; and
4. Severe emotional distress.

In Moreland v. Parks, 456 N.J. Super. 71 (App. Div. 2018), the court considered whether a same-sex partnership can create "an intimate family relationship." The plaintiff, I'Asia Moreland and her same-sex partner, Valerie Benning, were living together for almost five years. (Subsequently, they became engaged and married.)

I'Asia had two biological children, I'Zhir (age 5) and I'Maya (age 2). They all lived together as a family unit. I'Zhir said that he had "two mommies," and I'Maya called Valerie "mom."

On the date of the accident, Valerie was holding I'Maya's hand as they were crossing Route 129 in Trenton. I'Maya was struck by a pick-up truck and propelled 65 feet where she sustained serious personal injuries and died. Valerie became hysterical and was placed in restraints so that she could "say goodbye" before the medical staff could remove I'Maya's body. As an "aftershock" of I'Maya's death, Valerie sustained a prolonged emotional and psychological trauma that continues to the present time.

Valerie brought a claim for the negligent infliction of emotional distress. The trial court dismissed the claim because Valerie did not establish an "intimate family relationship" with I'Asia. The court reasoned the two women were just "girlfriends" and "lovers"; Valerie was not the biological mother of I'Maya, and, while a member of the household, Valerie was not "family."

The Appellate Division reversed. The court noted that the "standard" for defining an "intimate family relationship" includes the following factors:

1. The duration of the relationship.
2. The degree of mutual dependence.
3. The extent of common contributions.
4. The quality of shared experience.
5. The emotional reliance on each other.
6. The daily relationship.

The court found the women had cohabitated for at least 17 months and shared the responsibility to care for the children. Valerie had been part of I'Maya's life since her infancy and a strong "familial bond" existed between "the children and these two moms."

Thus, the court held that there was sufficient evidence for a jury to find that Valerie and I'Maya had "an intimate family relationship" at that time of the child's death. The court concluded 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."

While the opinion in Moreland is important for the progressive legal theory that it expresses, it is even more important for the social and moral principles that it espouses. I have frequently suggested that the common law is "a living body" that should change with the "exigencies" of our time.

In the "Common Law," Justice Oliver Wendell Holmes stated that:

"The life of the law has not been logic: it has been experience."

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"The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy."

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"The law embodies the story of a nation's development through many centuries."

In his brilliant and compassionate opinion in Moreland, Judge Fuentes tells "the story of (our) nation's development" and our history of social progress. He notes that "a significant number of our fellow citizens" used to consider same-sex couples "as socially and morally repugnant" and their "familial relationships" as "legally absurd."

Nonetheless, "the overwhelming number of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry." He concludes that our laws "now recognize and protect the rights of LGBTQ people to equal dignity and treatment under law."

Thus, in Moreland, the court remains "the guardian" of New Jersey's common law and a beacon shining its light on "social and legal process" under the law. May our courts continue to follow that light.

Gerald H. Baker is counsel to Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins in Springfield. He is a certified trial attorney who represents plaintiffs in personal injury and wrongful death cases.