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Unmarried, Same-sex Partner Permitted to Bring Negligent Infliction of Emotional Distress Claim for Death of Partner’s Biological Child

By: Ryan P. Duffy, Esq.

I’Asia Moreland and Valerie Benning were a same-sex couple who lived with Moreland’s two biological children, I’Maya and I’Zhir, and Benning’s godson, Armonti.  On January 30, 2009, the five of them were waiting to cross the street to attend a “Disney on Ice” show in Trenton, New Jersey, when a fire truck and a pickup truck collided.  The collision caused the pickup truck to strike two-year-old I’Maya, propelling her body sixty-five feet from where she had been holding hands with Benning.  Tragically, I’Maya died as a result of the accident.  I’Asia Moreland and Valerie Benning filed several claims against the defendants, including bystander negligent infliction of emotional distress (“NIED”).

The main issue in the published Appellate Division decision of Moreland v. Parks, 456 N.J. Super. 71, 191 A.3d 729 (App. Div. 2018), was whether Valerie Benning could establish an “intimate, familial relationship” with I’Maya to satisfy the requirements for bringing an NIED claim.

Moreland and Benning were not married at the time of I’Maya’s death.  However, I’Asia Moreland and Benning had cohabitated for at least 17 months and shared similar responsibilities for the care of the three children, including I’Maya.  I’Maya’s biological brother, I’Zhir, referred to Benning and Moreland has his “two moms.”  Benning testified at her deposition that she had suffered extreme emotional distress over I’Maya’s death, and that she had lost one that she loved like her own that day.

Defendants filed a motion for partial summary judgment, seeking dismissal of Benning’s NIED claim.  The motion judge dismissed Benning and Moreland’s relationship as being mere “lovers.”  Additionally, the judge pointed out that Benning and Moreland were not engaged at the time of I’Maya’s death.  The motion judge went as far as to say that Benning was only part of I’Maya’s life for 17 months and “[t]here’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.”

In the New Jersey Supreme Court’s decision in Portee v. Jaffee, the Court created the tort of negligent infliction of emotional distress to allow a narrow class of litigants the right to seek damages for emotional trauma caused by a tortfeasor’s negligence.  Justice Pashman fashioned four elements for this cause of action: “(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 in severe emotional distress.” Portee, 84 N.J. at 101. In Moreland, the Appellate Division focused on the second element and whether Benning’s relationship with I’Maya rose to the level of an “intimate, familial relationship.”

In a later New Jersey Supreme Court decision, Dunphy v. Gregor, 136 N.J. 99 (1994), the Court extended the limited class of plaintiffs able to seek damages for NIED to a fiancé of the decedent.  In allowing the fiancé to seek damages, even though she was not married to the decedent, the Court crafted a new standard to define the second prong of the Portee test—what exactly constitutes an “intimate, familial relationship.”  The factors used in finding if such a relationship exists are (1) the length of the relationship, (2) the degree of mutual dependence, (3) the degree of shared contributions to a life together, (4) the extent and quality of joint experience, and (5) whether the plaintiff and the decedent were members of the same household, and other factors.

With that legal background, the Appellate Division in Moreland examined whether Valerie Benning had an intimate, familial relationship with I’Maya at the time of her death.  In making its decision, the Appellate Division noted that the definition of what a “family” is has greatly expanded since Portee was decided in 1980 and even since Dunphy was decided in 1994. The Appellate Division held that an “intimate, familial relationship” supporting a claim for NIED could include the relationship between a mother’s cohabitating same-sex partner and the mother’s biological child.  Therefore, the trial court improperly dismissed Benning’s claim because it was possible that a jury could find Benning maintained an intimate, familial relationship with I’Maya at the time of her death.

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