Equality for New Jersey Gay and Lesbian Families Considered in Groundbreaking Decision: Non-Biological Mom in Same-Sex Relationship May Sue for Negligent Infliction of Emotional Distress after Witness

Equality for New Jersey Gay and Lesbian Families Considered in Groundbreaking Decision: Non-Biological Mom in Same-Sex Relationship May Sue for Negligent Infliction of Emotional Distress after Witness

Authored by Tiffany L. Heineman, Esq.

In a major win for gay and lesbian families, and for New Jersey families in general, the New Jersey Appellate Division recognized the close and everlasting emotional bond between parent and non-biological child, despite the parent not having a marital relationship with the child’s biological parent. This was a groundbreaking, important decision of statewide effect that redefines “family” for the purpose of claims for bystander psychological trauma and advances same-sex couples and their families under New Jersey law. Arguing in favor of permitting a non-biological mother to bring a claim for the psychological trauma of witnessing her child’s tragic death which was caused by another’s negligence, Laddey, Clark & Ryan partner Thomas H. Prol, Esq., was one of the attorneys who appeared as amicus curiae, or “friend of the court,” on behalf of the New Jersey State Bar Association. Prol, a past President of the New Jersey State Bar Association, has long been a fervent advocate for civil rights, including marriage equality, women’s rights, legal services for the poor, and judicial independence.

Friday, August 17, 2018, in the published decision of Moreland v. Parks the Appellate Division decided an appeal of a lower court’s dismissal of a non-biological mother’s claim for Negligent Infliction of Emotional Distress (NIED) after she witnessed the horrific death of the two-year-old daughter of her same-sex partner. The Court ruled in the non-biological mother’s favor, confirming that the existence of an “intimate, familial relationship” is not necessarily confined to those who are biologically related or married, and requires a case-by-case analysis of the facts.

This decision is clearly of utmost importance, as evidenced by the fact that it is a published decision. Only a small percentage of Appellate Division decisions become published. The fact that the Moreland decision has been published means that the case law set forth will be recognized by New Jersey courts statewide as precedential and authoritative.

In Moreland, Valerie Benning was holding the hand of two-year-old I’Maya Moreland, the biological daughter of her partner, I’Asia Moreland, while waiting to cross Route 129 to get to Sun Bank Arts Center in Trenton for the “Disney on Ice” show. While waiting to cross the street, a fire truck and pickup truck collided, and the pickup truck struck and killed young I’Maya. Plaintiff’s filed suit, and included a claim for Benning’s bystander NIED, which is also known in New Jersey as a “Portee claim,” based on the 1980 New Jersey Supreme Court case that established the legal viability of bystander NIED.

That seminal 1980 case, Portee v. Jaffee, involved a mother who watched helplessly as rescue workers repeatedly and unsuccessfully attempted to save her seven-year-old son after he was trapped by an elevator. The Court recognized the mother’s claim for severe emotional pain and psychological trauma resulting from witnessing her son’s horrific demise.  Accordingly, the Court permitted NIED of a bystander under the following conditions: (1) the death or serious physical injury of another was caused by the defendant’s negligence; (2) there exists a marital or intimate, familial relationship between the plaintiff and the injured person; (3) plaintiff observed the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress as a result.

In Moreland, the Court was focused exclusively on the second element of the Portee claim: whether Benning presented sufficient evidence that an “intimate, familiar relationship” existed between her and two-year-old I’Maya at the time of the accident. The lower court who had initially dismissed Benning’s claim, referred to Benning and Moreland as “lovers,” and reasoned that Benning “was a girlfriend and she might have been part of the child’s household…” but that Portee “talks about a familial relationship but it didn’t say family-ish or something similar to a family.” The Appellate Division on Friday rejected the lower court’s emphasis on the relationship between Benning and her partner, I’Asia, and instead limited its analysis to the relationship between Benning and young I’Maya.

As acknowledged by the Appellate Division, this is not the first time the Court was asked to expand Portee claims to encompass relationships other than martial or biological relationships. In 1994, the New Jersey Supreme Court decided Dunphy v. Gregor, which permitted the decedent’s fiancée to bring a Portee claim after she witnessed his death. The Moreland Court applied the analysis enlisted by Dunphy and also cited to the public policy reasons for refusing to restrict bystander NIED claims to married or biologically related persons.

The Court found that Benning had lived with Moreland and Moreland’s biological children for at least seventeen months, since I’Maya was an infant. Plaintiffs also provided a psychological evaluation report of the family that supports the strong familial bond between the children and their two moms that existed prior to the accident. In light of all of the facts presented by the plaintiffs, the Court held that Benning presented sufficient evidence from which a jury could find that she and I’Maya had an intimate familial relationship at the time of the child’s death. Therefore, the decision of the lower court was reversed, and the case was sent back to the lower court to permit a jury to hear and decide the facts at trial.

The Moreland case is tremendously important in emphasizing that an “intimate familial relationship” cannot merely be determined by how “family” has been historically defined. Instead, New Jersey Courts have been tasked with analyzing the unique circumstances of each case in determining whether a plaintiff may bring a Portee claim, recognizing that the families in our communities are cemented by emotional bonds beyond those described by birth certificates or marriage licenses.

Mr. Prol, the Laddey, Clark & Ryan attorney who argued the cause before the Appellate Division as “friend of the court” urged the Court to chiefly focus on those emotional bonds when analyzing Portee claims. Prol’s position was heard loud and clear and was the prevailing position accepted by the Court in its groundbreaking decision. Click here for more information about Thomas H. Prol, Esq., our Personal Injury Practice Group, and the entire Laddey, Clark & Ryan team.