One of the most significant expansions of negligence liability in the past 40 years was the creation of the Portee claim, which provides recovery to those who witness the death or serious injury of a loved one as a result of the negligence of another, but who were not in the zone of danger themselves. This type of claim frequently accompanies a products-liability lawsuit. Below is a comprehensive survey of the evolution of New Jersey’s Portee claim and the issues that arise in the application of the claim’s four elements.
The Original Decision
In Portee v. Jaffee, 84 N.J. 88 (1980), the New Jersey Supreme Court recognized—for the first time—a cause of action for negligent infliction of emotional distress for bystanders who witness the wrongful death or serious injury of another. In Portee, a mother sought to recover for mental and emotional distress caused by observing her son’s injuries and eventual death while trapped in an elevator shaft. For more than four-and-a-half hours, the boy’s mother observed her son sustain “multiple bone fractures and massive internal hemorrhaging.” During the struggle, the plaintiff’s mother “watched as her son moaned, cried out and flailed his arms” in agony, while “she was restrained from touching him.” In the aftermath of the incident, the plaintiff “became severely depressed and seriously self-destructive,” culminating in her attempted suicide. Thereafter, the plaintiff required “extensive counseling and psychotherapy to help overcome the mental and emotional problems caused by her son’s death.”
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