Plaintiff and his stepson, Louis Acerra, were at home and asleep when they were awakened by the sound of a smoke detector alerting them to a fire downstairs. They sought refuge in plaintiff’s bedroom, but then Acerra ran into the hallway filled with smoke and flames. Plaintiff thought Acerra had escaped and proceeded out a second story window. Once on the ground, he realized his stepson was still in the home. Thereafter, he witnessed firefighters bringing his stepson’s still burning, smoldering and smoking body from the house. In Litwin v. Whirlpool Corp., 2014 N.J. Super. LEXIS 84 (App. Div. June 11, 2014), the plaintiff sued the defendants for a Portee v. Jaffee emotional distress claim for witnessing his stepson’s injuries.
While Acerra survived the fire, plaintiff was his primary caretaker for 3 years. Ultimately, Acerra died 3 years later after undergoing multiple grafting procedures.
To establish a Portee claim for emotional distress, a plaintiff must prove 4 elements: (1) the death or serious physical injury 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 issue in this case is whether the plaintiff had observed his stepson’s injury.
The trial court judge granted summary judgment on the Portee claim, finding that plaintiff had failed to satisfy the observation prong necessary to assert this claim and failed to show that he had experienced severe emotional distress. The Appellate Division reversed, finding that the trial judge had too narrowly construed the elements of a Portee claim. Even though the plaintiff had not actually observed Acerrra burning inside of the home, that did not mean that this “observation” prong had not been satisfied.
The plaintiff’s experience of being in the fire, an eyewitness of him still being in the burning house and observing his still smoldering body removed from the burning house was sufficient. It was not necessary for him to have actually been inside the house and witnessed his son’s body burning to satisfy the observation prong of Portee.
