September 19, 2018
In 1980, the New Jersey Supreme Court in Portee v. Jaffe, 84 NJ 88 (1980) ruled that a parent could recover damages for bystander negligent infliction of emotional distress as a result of watching their young child suffer and die in an accident caused by a defendant’s negligence. About twenty years later, a movement began across the United States that lead to marriages of same-sex couples being recognized as equal under the law. Even though same-sex couples now have the same rights in New Jersey as marriages of opposite-sex couples, it was not until Moreland v. Parks, Superior Court of New Jersey, Appellate Division, Docket No. A-4754-16T4, Approved for Publication, August 17, 2018, that the Court extended the Portee claim for negligent infliction of emotional distress (NIED) to same-sex couples.
On January 30, 2009, plaintiffs Valerie Benning and I ‘Asia Moreland were a same-sex couple that had been living together since approximately 2008, were engaged on November 19, 2011 and were married on March 31, 2014. On January 30, 2009, one of Moreland’s biological children, I ‘Maya, age 2, was struck and killed by a pickup truck while Benning and Moreland were with I ‘Maya waiting to cross a street in Trenton, New Jersey. Plaintiffs thereafter filed a civil suit alleging various theories of liability, including bystander negligent infliction of emotional distress (NIED) on the part of Benning.
Defendants moved for partial summary judgment to dismiss Benning’s bystander NIED claim and the trial court agreed, finding that there was no evidence of an intimate familial relationship by Benning with I ‘Maya sufficient to assert a claim under the Portee case, by noting that plaintiffs were not engaged at the time, by finding that Benning was a small part of I ‘Maya life for 17 months at least and by finding no evidence of a relationship that was deep, lasting and genuinely intimate.
Plaintiffs then moved before the Appellate Division which reversed the trial court’s dismissal of Benning’s NIED claim. The Appellate Division observed:
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 dignityand treatment under law. Throughout our country, United States v. Windsor, 570 U.S. 744 (2013), and in our State, Garden StateEqual. v. Dow, 434 N.J. Super. 163 (App. Div.), certif. granted,216 N.J. 1, stay denied, 216 N.J. 314 (2013), same-sex couples may legally marry and have children.
The Appellate Division held 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 Benning, 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, shared the responsibility for the care of three young children, one of whom was I ‘Maya. It noted that a rational jury could find that Benning was a de facto mother to this child, and that she felt her loss as deeply as any parent facing that horrific event.
As such, same-sex couples in New Jersey can sue for NIED; a right that one would have presumed already existed when same-sex couples previously and successfully won the battle for equal rights under the law.