I'ASIA MORELAND VS. WILLIAM PARKS (L-0227-11, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
PRIOR APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4754-16T4
I'ASIA MORELAND, Individually and
as the Administratrix of the Estate
of I'MAYA MORELAND, I'ASIA MORELAND,
Guardian Ad Litem on behalf of
I'ZHIR MORELAND, and VALERIE BENNING,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
August 17, 2018
v.
APPELLATE DIVISION
WILLIAM PARKS, RONALD HUBSCHER, JR.,
ALBERT DINATALE, BENITO BELLO, CITY OF
TRENTON, and COUNTY OF MERCER,
Defendants-Respondents,
and
SOVEREIGN BANK ARENA, n/k/a SUN BANK
ARENA, MERCER COUNTY IMPROVEMENT
AUTHORITY, STATE OF NEW JERSEY,
and GLOBAL SPECTRUM,
Defendants.
_______________________________________
Argued January 17, 2018 - Decided August 17, 2018
Before Judge Fuentes, Manahan, and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
0227-11.
Robin Kay Lord argued the cause for appellants
(Law Offices of Robin Kay Lord, LLC and
Kardos, Rickles, Hand & Bidlingmaier,
attorneys; Robin Kay Lord and Clifford D.
Bidlingmaier, III, on the brief).
Elizabeth C. Chierici argued the cause for
respondent William Parks (Chierici, Chierici
& Smith, attorneys; Donald R. Chierici, Jr.,
on the brief).
William J. O'Kane, Jr. argued the cause for
respondent Ronald Hubscher (Archer & Greiner,
P.C., attorneys; Frank D. Allen, William J.
O'Kane, Jr., and Suzanne K. Collins, on the
brief).
John Morelli argued the cause for respondent
City of Trenton, Albert DiNatale and Benito
Bello.
Lillian L. Nazzaro argued the cause for
respondent County of Mercer (Arthur R. Sypek,
Jr. Mercer County Counsel, attorney; Lillian
L. Nazzaro, Assistant County Counsel, on the
brief).
Jennifer L. Hamilton argued the cause for
amicus curiae Garden State Equality, Inc.
(Hamilton Law, attorneys; Jennifer L.
Hamilton, on the brief).
Thomas H. Prol argued the cause for amicus
curiae New Jersey State Bar Association
(Robert B. Hille, President, New Jersey State
Bar Association, attorney; Robert B. Hille,
of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
On January 30, 2009, Valerie Benning and I'Asia Moreland were
a same-sex couple who lived together with Moreland's two biological
children, I'Zhir, who was nearly five years old, and his younger
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sister, two-year-old I'Maya. Benning's godson, Armonti Martinez,
also lived with the couple at the time. On that date, these two
adults and three children were waiting to cross a street to attend
the "Disney on Ice" show at the Sun Bank Arts Center in Trenton,
now known as CURE Insurance Arena. While Benning and I'Maya were
holding hands waiting to cross the street, a fire truck and a
pickup truck collided. The pickup truck struck I'Maya, propelling
her body sixty-five feet south of the intersection where she and
her family had been standing. Two-year-old I'Maya died as a result
of the accident.
Plaintiffs filed a civil action against defendants predicated
on several theories of civil liability, including bystander
negligent infliction of emotional distress (NIED). After joinder
of issue and the exchange of discovery, the trial court granted
defendants' motion for partial summary judgment to dismiss
Benning's bystander NIED claim. The motion judge found Benning
did not present sufficient evidence that she had an "intimate,
familial relationship" with two-year-old I'Maya to satisfy the
requirements to bring a claim under Portee v. Jaffee, 84 N.J. 88(1980).
Plaintiffs moved before this court for leave to appeal the
trial court's order granting partial summary judgment on this
issue. Garden State Equality, Inc., and the New Jersey State Bar
3 A-4754-16T4
Association moved to participate as Amici Curiae. In an order
dated February 6, 2017, we denied the motion for leave to appeal.
By order dated July 7, 2017, the Supreme Court granted plaintiffs'
and amici's motions for leave to appeal and summarily remanded
this matter for this court to determine "whether plaintiff [Valerie
Benning] may pursue her claims for negligent infliction of
emotional distress" under Portee.
After reviewing the record presented to the Law Division, we
conclude the motion judge erred in dismissing Benning's claims
under Portee as a matter of law. We thus remand this matter to
the trial court for such further proceedings as may be warranted,
including a trial before a jury.
I
I'Maya was not biologically related to Benning. At the time
of the accident, Benning did not have legal custody rights to
either I'Maya or her older brother I'Zhir. According to her
deposition testimony taken on September 7, 2012, Benning met
Moreland in August 2007, when Moreland was working at Foot Locker
and Benning "just happened to be shopping." They exchanged phone
numbers and started dating on August 22, 2007. The record does
not precisely identify the date when Benning and Moreland began
living together as a family. Viewing the evidence in the light
most favorable to Benning, they have been living together since
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approximately 2008. Thus, at the time of Benning's deposition in
September 2012, they had been living together for nearly five
years. They were engaged on November 19, 2011, and were married
on March 31, 2014.
I'Maya was approximately thirteen months old when Benning and
Moreland began their romantic relationship. At the time of the
accident, their household included Benning's godson Armonti, and
Moreland's biological children, I'Maya and I'Zhir. Benning
testified at her deposition that I'Maya began calling her "mom"
or "mommy" a few weeks into her relationship with Moreland; it
took approximately three months for the older boy I'Zhir to start
calling Benning "mom." In a psychological evaluation report dated
October 12, 2015, Dr. Gerald Cooke noted that I'Zhir drew "[m]ommy
Val", "[m]ommy I'Asia," himself, I'Maya, and Armonti. Dr. Cooke
also noted that despite the death of his younger sister and
Armonti's departure to live with his mother, I'Zhir "still thinks
of both of them as part of the family." He opined that the child
"feels safest when he is with his two moms and also his grandmother
and his extended family."
On the day of the accident, Benning was holding I'Maya's hand
as they waited to cross Route 129 to see Disney on Ice. Benning
described hearing the fire truck's sirens, which alerted her to
stop and "find out which way it was coming from so I wouldn't put
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my kids into danger." She has no recollection of the accident
itself. At her deposition, defense counsel asked Benning to
describe her reaction immediately after the accident:
Q. Do you recall being struck by anything?
A. No, I just remember being on the ground.
Q. Do you have any recollection with respect
to the incident once you were picked up by
[Moreland]?
A. After I was picked by [Moreland], she asked
me if I was okay. And Armonti was screaming
at the top of his lungs at the time. And
I'Zhir was saying that . . . he was okay, but
he was scared, and he started to scream, a
fire truck hit my sister, a fire truck hit my
sister. And I didn't understand what he was
saying, you know. I didn't know what he was
saying.
But, you know, I was trying to gather myself.
So I asked [Moreland], I said, where is Maya?
And she said, I don't know. And I looked
down, and I didn't see her. And Armonti was
still screaming, but he was on the ground,
because he couldn't stand up. And at first
we thought that he was just . . . like
screaming typical of a two-year-old, but his
legs and his ankles were broke, and he
couldn't move.
And at that point I noticed that I'Maya was
no longer holding my hand, and it dawned on
me that [Moreland] was lifting me up. So I
knew she wasn't, you know, next to me. And I
looked up, and she was far away from me . . .
going southbound. She was . . . further back
on the highway . . . .
Q. Okay.
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A. After that, I looked at [Moreland]. She
tried to pick Monti up. And I told her --
just gave her a look or -- that I was going
to, you know, go get Maya. And just started
running. It felt like forever.
Q. Take your time. Take your time. I realize
this is difficult.
A. I'm sorry.
Q. That's okay.
. . . .
A. The death of anyone's child is devastating,
but to talk about your own or one that you
love like your own is even harder. Okay.
Q. Take your time.
A. At that point I remember [Moreland] like
trying to scream, she's like, is Maya okay?
And I knew she was not okay. She was not
okay. Within seconds after that, there was a
female, I don't know who she was, and her child
-- her child -- I heard he just started
screaming, mom, please help them, mom, please
help them, mom.
I'Maya and Benning were brought to the hospital in separate
ambulances. While en route to the hospital, Benning responded to
the questions the Emergency Medical Technicians (EMT) had about
I'Maya's medical history. Benning testified that she told the
EMTs that I'Maya had a rare "G6 PD"1 deficiency and generally
1
According to the National Institute of Health, Genetics Home
Reference:
7 A-4754-16T4
described her "likes and dislikes." When she arrived in the
emergency room, Benning heard I'Zhir tell the medical staff: "my
name is I'Zhir, and I have two moms, and I know where I live . .
. ."
Benning testified that she became hysterical after she
learned that I'Maya had died. She was placed in restraints until
she agreed to take some form of sedative "so I could say goodbye"
before the medical staff removed the child's body. The nurses
removed Benning's restraints after the sedatives began to calm her
down. Benning was also involved in the financial decisions
regarding the child's funeral arrangements. She and Moreland
borrowed money from their families to pay for the cost of the
funeral. The record also contains reports of psychological
evaluations that describe the emotional and psychological trauma
Glucose-6-phosphate dehydrogenase deficiency
is a genetic disorder that occurs almost
exclusively in males. This condition mainly
affects red blood cells, which carry oxygen
from the lungs to tissues throughout the body.
In affected individuals, a defect in an enzyme
called glucose-6-phosphate dehydrogenase
causes red blood cells to break down
prematurely. This destruction of red blood
cells is called hemolysis.
[Genetics Home Reference, Glucose-6-phosphate
dehydrogenase deficiency, National Institute
of Health,
https://ghr.nlm.nih.gov/condition/glucose-6-
phosphate-dehydrogenase-deficiency.]
8 A-4754-16T4
Benning suffered as an aftershock of I'Maya's death and the
emotional pain she continues to suffer.
II
The motion judge characterized Benning and Moreland's
relationship at the time of the accident as "lovers." With respect
to Benning's relationship with I'Maya, the judge found:
The plaintiffs allege that the decedent . . .
referred to Ms. Benning as mom. It seemed
clear that a [Portee] claim . . . is reserved
to those who are actually closer related and,
not only closely related by way of being
family but also in an intimate family
relationship. So an intimate relationship
alone would not suffice.
There is a requirement that they have to be
family. [Portee] talks about familial
relationship but it didn't say family-ish or
something similar to a family. It says
familial and there are cases that must use the
word family. It has to be family and there's
no question of fact that Ms. Benning was not.
The evidence is that she was a girlfriend and
she might have been part of the child's
household, but by any definition that I can
find in the law about family, Ms. Benning
doesn't meet it. The undisputed facts are
that she was neither a biological or adoptive
parent . . . .
The judge also considered the concept of "psychological
parent,2" but rejected its application here because Benning had
2
The term "psychological parent" was first discussed by our
Supreme Court in V.C. v. M.J.B., 163 N.J. 200 (2000). In that
case, the Court was "called on to determine what legal standard
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not presented expert evidence in support of this approach. The
judge found expert testimony was necessary
to know what goes on in a [two]-year-old's
mind, I understand that the [two]-year old has
passed away, you can't do a psychological
evaluation now but if there had been an
application for custody where Ms. Benning was
proposing that she was a psychological parent,
that could have happened during the [two]-
year-old's lifetime. It didn't happen so
there's no such report . . . [and] [j]ust using
the word mom all by itself doesn't count for
much, whether there's a secure relationship,
a bonded relationship, a reliant relationship,
whether this is someone that the [two]-year-
old would have looked to for a comfort, the
facts just aren't there to be able to know
those things. And that's where I go back to
the standard for summary judgment. There
actually has to be facts. It's one thing to
give favorable inferences which . . . I have
to do for summary judgment, but here . . .
what was going on in a [two]-year-olds mind
in terms of that relationship, there's just
no way to be able to get that information and
it's never going to come out.
The motion judge also distinguished the issue here from the
Court's holding in Dunphy v. Gregor, 136 N.J. 99 (1994), where the
applies to a third party's claim to joint custody and visitation
of her former domestic partner's biological children, with whom
she lived in a familial setting and in respect of whom she claims
to have functioned as a psychological parent." Id. at 205. The
legal and public policy considerations that led the Court in V.C.
to recognize the concept of "psychological parent" in the context
of a child custody dispute in the Family Part, are not dispositive
to a determination of whether Benning falls within the class of
litigants who may bring a Portee claim.
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Court allowed a NIED claim brought by the fiancée of a decedent
to proceed to a jury trial. The judge explained:
Ms. Moreland and Ms. Benning weren't even
engaged at the time. I understand the laws
regarding same sex relationships had changed
over time but there was a statute that did
allow for that in New Jersey and whether they
could have availed themselves of any such laws
in other jurisdictions hasn't been addressed
in any of the papers.
In dismissing Benning's NIED claim, the motion judge found
that "Ms. Benning was part of a very small child's life for 17
months at most . . . . There'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."
III
On appeal, plaintiffs argue that Benning is entitled to bring
a bystander NIED claim because her relationship with I'Maya was
intimate and familial. They argue the motion judge erroneously
focused his analysis on the relationship between Benning and
Moreland and the absence of evidence showing their relationship
was formally sanctioned by the legal avenues available to them at
the time, such as a civil union or domestic partnership.
Plaintiffs also argue the judge misapplied the standards for
deciding a motion for summary judgment by drawing an adverse
inference against them for failing to seek formal legal recognition
11 A-4754-16T4
of the relationship between Benning and the child. Plaintiffs
argue that whether the relationship between I'Maya and Benning
qualifies for recovery under Portee is a question of fact for the
jury.
Defendants argue that summary judgment is the appropriate way
to proceed in this case. They maintain that the question of
whether Benning's relationship with the child entitles her to
bring a NIED claim is a question of law that was appropriately
decided by the motion judge. Defendants argue Benning has not
presented sufficient competent evidence to satisfy all of the
elements of the tort of NIED.
Amicus Garden State Equality is a civil rights organization
dedicated to protecting and advancing the legal rights of this
State's LGBTQ community. It argues that the Law Division erred
in dismissing Benning's NIED claim as a matter of law because
there are genuine issues of material fact regarding the nature of
I'Maya and Benning's relationship. Garden State Equality further
argues that the trial court erred by considering the marital status
of Moreland and Benning in determining the relationship between
I'Maya and Benning. Amicus argues this approach ultimately
discriminates against same-sex couples by holding them to a higher
standard than the standard applied to heterosexual couples.
12 A-4754-16T4
Amicus New Jersey State Bar Association (NJSBA) argues that
the type of intimate familial relationship required to bring a
Portee claim is not strictly limited to plaintiff's marital status
to the child's biological parent; or whether she had a legally
recognized custodial status to the decedent; or even whether she
was biologically related to the decedent. The NJSBA argues that
the quality of Benning and I'Maya's relationship is the relevant
issue here. This Amicus argues that is purely a factual issue
that must be considered and decided by a jury.
The sole legal question the Supreme Court ordered us to
address is whether Benning falls within the class of litigants
entitled to bring a civil action against defendants under the tort
of negligent infliction of emotional distress. We begin our
analysis by describing the material facts in Portee, the seminal
case that first recognized the legal viability of this cause of
action in our State, and which also involved the accidental death
of a child. In Portee, a seven-year old boy became trapped between
an elevator's outer doors and the wall of the elevator shaft.
Portee, 84 N.J. at 91. His mother watched helplessly as her son
struggled for over four hours as rescue workers made repeated, but
ultimately unsuccessful attempts to save the child's life. Ibid.The mother witnessed her son's agonizing death. Ibid.13 A-4754-16T4
Witnessing the horrific demise of her child caused the mother
severe emotional pain and serious psychological trauma. Ibid.She became "severely depressed and self-destructive." Ibid. She
was hospitalized after an attempted suicide and was treated for
self-inflicted injuries. Ibid. She thereafter "received
extensive counseling and psychotherapy to help overcome the mental
and emotional problems caused by her son's death." Id. at 92. As
the guardian of our State's common law, the Supreme Court fashioned
the tort of negligent infliction of emotional distress to permit
a limited class of litigants the right to seek a measure of
compensation for the residual emotional and psychic trauma caused
by the negligence of the tortfeasor. As Justice Pashman explained:
The cause of action we approve today for the
negligent infliction of emotional distress
requires proof of the following elements: (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
severe emotional distress. We find that a
defendant's duty of reasonable care to avoid
physical harm to others extends to the
avoidance of this type of mental and emotional
harm.
[Portee, 84 N.J. at 101 (emphasis added).]
Justice Pashman ended his description of the essential
elements of this tort by quoting the words of Chief Justice
14 A-4754-16T4
Weintraub: "Whether a duty exists is ultimately a question of
fairness. The inquiry involves a weighing of the relationship of
the parties, the nature of the risk, and the public interest in
the proposed solution." Ibid. (quoting Goldberg v. Housing Auth.
of Newark, 38 N.J. 578, 583 (1962)). Our Supreme Court has
revisited its holding in Portee to expand the class of litigants
entitled to relief when necessary to serve its underlying public
policy, Dunphy v. Gregor, 136 N.J. 99 (1994) (permitting the
fiancée of the decedent to bring a claim), and to clarify and
narrow its scope when warranted, McDougall v. Lamm, 211 N.J. 203(2012) (denying relief to a litigant who witnessed the traumatic
death of a pet).
Our focus here is exclusively on the second element of the
four elements of proof required to bring a negligent infliction
of emotional distress cause of action, to wit: whether Benning
presented sufficient evidence that an "intimate, familial
relationship" existed between her and two-year-old I'Maya at the
time the child tragically perished in this accident. Portee, 84
N.J. at 101. Because the Law Division decided this issue as a
matter of law, our review is de novo. We do not accord any
deference to the motion judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013).
15 A-4754-16T4
What constitutes a "familial relationship" is perforce a
fact-sensitive analysis, driven by evolving social and moral
forces. No one can reasonably question that the social and legal
concept of "family" has significantly evolved since the Court
decided Portee in 1980. Thirty-eight years ago, gay, lesbian, and
transgender people were socially shunned and legally unprotected
against invidious discrimination in employment, housing, and
places of public accommodation under our State's Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49.3 The notion of
same-sex couples and their children constituting a "familial
relationship" worthy of legal recognition was considered by a
significant number of our fellow citizens as socially and morally
repugnant and legally absurd.
The overwhelming number of our fellow citizens now
unequivocally reject this shameful, morally untenable bigotry; our
laws, both legislatively and through judicial decisions, now
recognize and protect the rights of LGBTQ people to equal dignity
and treatment under law. Throughout our country, United States
v. Windsor, 570 U.S. 744 (2013), and in our State, Garden State
Equal. v. Dow, 434 N.J. Super. 163 (App. Div.), certif. granted,
3
The Legislature did not amend the Law Against Discrimination to
prohibit invidious discrimination in employment, housing, and
places of public accommodation on the basis of "sexual orientation"
until 1992. See N.J.S.A. 10:5-4; A. 519 (1991); S. 3758 (1992).
16 A-4754-16T4
216 N.J. 1, stay denied, 216 N.J. 314 (2013), same-sex couples may
legally marry and have children.
Following this path of social and legal progress under law,
we now turn our attention to Dunphy, a case through which our
Supreme Court clarified the second element of a Portee claim. The
plaintiff and the decedent in Dunphy were a heterosexual couple
who cohabitated and were engaged to be married. Dunphy, 136 N.J.
at 102. They planned to marry four years after their engagement.
Ibid. Two years into their engagement, the decedent was killed
on Route 80 while helping a friend change a tire. Ibid. The
plaintiff witnessed the vehicle strike her fiancée. Ibid. She
was the first person to reach his body, and attempted to comfort
him. Ibid. He died the next day in the hospital. Ibid.The case came before the Supreme Court based on a dissent in
the Appellate Division opinion. Dunphy v. Gregor, 261 N.J. Super.
110, 124 (App. Div. 1992). Our dissenting colleague "interpreted
the Portee requirement of a 'familial relationship' as one
restricted to marriage or blood ties." Dunphy, 136 N.J. at 104
(citing Dunphy, 261 N.J. Super. at 125). However, the Supreme
Court endorsed the views expressed by our colleague Judge Kestin,
whom, writing for the majority on the panel, held:
Irrespective of the label placed upon a
particular relationship, it is a jury question
whether the inter-personal bonds upon which
17 A-4754-16T4
the cause of action is based actually exist.
A defendant should always have the right, even
in the case of a parent and child or a husband
and wife, to test the operative facts upon
which the claim is based irrespective of the
de jure relationship.
[Dunphy, 136 N.J. at 112 (quoting Dunphy, 261
N.J. Super. at 122).]
The Court expanded upon Judge Kestin's reasoning by
emphasizing that "this critical determination must be guided as
much as possible by a standard that focuses on those factors that
identify and define the intimacy and familial nature of such a
relationship." Ibid. The Court distilled this "standard" to the
following basic, yet critically important factors: (1) the
duration of the relationship; (2) the degree of mutual dependence;
(3) the extent of common contributions to a life together; (4) the
extent and quality of shared experience; and (5) whether the
plaintiff and the decedent (or seriously injured person) "were
members of the same household, their emotional reliance on each
other, the particulars of their day to day relationship, and the
manner in which they related to each other in attending to life's
mundane requirements." Ibid. (quoting Dunphy, 261 N.J. Super. at
123).
Critical to our analysis here, however, is not only the Dunphy
Court's unambiguous rejection of any attempt to restrict the class
18 A-4754-16T4
of claimants to married persons, but also the articulation of the
public policy underpinning the tort itself:
The basis for that protection is the existence
of an intimate familial relationship with the
victim of the [tortfeasor's] negligence.
An intimate familial relationship that is
stable, enduring, substantial, and mutually
supportive is one that is cemented by strong
emotional bonds and provides a deep and
pervasive emotional security. We are
satisfied that persons who enjoy such an
intimate familial relationship have a
cognizable interest in the continued mutual
emotional well-being derived from their
relationship. When that emotional security
is devastated because one witnesses, in close
and direct proximity, an accident resulting
in the wrongful death or grievous bodily
injury of a person with whom one shares an
intimate familial relationship, the
infliction of that severe emotional injury may
be the basis of recovery against the
wrongdoer.
[Id. at 115.]
Against this analytical backdrop, we now apply the standard
codified in Rule 4:46-2(c), and hold that Benning presented
sufficient evidence from which a jury could find that she and two-
year-old I'Maya had an intimate familial relationship at the time
of the child's tragic death. Viewed in the light most favorable
to the non-moving party, the evidence shows that at the time of
the accident, Benning and her now wife I'Asia Moreland, had
cohabitated for at least seventeen months, sharing the
19 A-4754-16T4
responsibility for the care of three young children, one of whom
was I'Maya. 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. Benning's deposition testimony
supports this finding.
The duration of Benning's relationship with I'Maya indicates
she had been part of this two-year-old girl's life since she was
an infant. Dr. Cooke's psychological evaluation report of the
family also supports the strong familial bond that existed before
the accident between the children and these two "moms." Although
we are confident that this record is sufficient to withstand
summary judgment, both the court and the litigants would have been
better served if Benning's counsel would had augmented the record
with certifications from individuals who knew and saw these two
women interact with these children on a day-to-day basis. These
certifications may have assisted the motion judge in his decision.
Finally, we would be remiss if we did not comment on Benning's
counsel's decision to include, as part of the appellate record, a
photograph of the child's nude body laid out on the autopsy table.
Given the limited scope of this appeal, we do not understand what
possible relevance including this photograph has to the central
issue in this case. Its inclusion served absolutely no legal
purpose and was grossly insensitive to all involved.
20 A-4754-16T4
Reversed and remanded. We do not retain jurisdiction.
21 A-4754-16T4