Expanding the family: testing the limits of tort liability.

AuthorDrago, Alexander J.

This is a message to all tort litigation defense counsel. Beware - new plaintiffs are on the horizon!

Although courts traditionally have defined the "family" in terms of blood, marriage or adoptive relationships, a new definition is evolving in case law.(1) Spurred by the gay rights movement and social acceptance of non-marital cohabitation, courts increasingly are being called on to decide whether to extend legal rights customarily reserved for the traditional "family" to cohabitation relationships - to redefine the family to reflect the changing mores of society.

One effect of redefining the family will be to expand the scope of those to whom a tort duty is owed. The law gives the family special rights because it involves intimate emotional bonds and legal obligations that flow from the relationship,(2) and these rights often include tort law protection. Of course, relationships other than those of marriage, blood and adoption may be the emotional equivalent of a marital or familial relationship, but are they equally deserving of the legal protection given the family?

To identify some of the potential tort plaintiffs of tomorrow, let's look at case law that has redefined the family.

Dunphy v. Gregor

There are several schools of thought on whether a bystander may recover damages for emotional distress resulting from witnessing the infliction of an unintentional injury on another. Many jurisdictions permit recovery if the bystander was threatened with physical injury by virtue of having been in the zone of danger created by the tortfeasor's negligent conduct.(3) A few states still require that the plaintiff suffer an impact in order to recover for mental disturbance occasioned by negligence.(4)

Section 436 of the Restatement (Second) of Torts espouses a view that permits recovery for emotional distress if the plaintiff was in the zone of danger and witnessed an unintentional injury to a member of his or her immediate family. Also, a significant number of states have adopted the reasoning of the California Supreme Court in Dillon v. Legg,(5) which holds that damages may be recovered for emotional trauma caused when a plaintiff witnesses the injury or death of a close relative, even though the plaintiff was not personally within the zone of danger of physical injury, if the emotional injury was reasonably foreseeable.(6)

New Jersey is among those jurisdictions that have adopted the Dillon formula. In Portee v. Jaffee(7) the New Jersey Supreme Court held that a parent may recover damages for emotional distress caused by watching her child suffer and die in an accident caused by the defendant's negligence. Portee requires four elements to coalesce: (1) the death or serious physical injury of another caused by the defendant's negligence; (2) a marital or intimate, familial relationship between the plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress.

In 1992 the New Jersey intermediate appellate court in Dunphy v. Gregor(8) extended the legal protection normally reserved for close family members under Portee to a bystander who witnessed the death of her fiance with whom she lived. Dunphy held that the relationships included within the scope of protection of negligent infliction of emotional distress are not limited to those of blood or marriage. With this dangerous precedent, seeds are sown that may grow to expand the class of plaintiffs who may recover under tort law.

Only a few courts under special circumstances previously had permitted plaintiffs to recover damages for emotional distress resulting from witnessing the negligent death or injury of a person unrelated by blood, marriage or adoption.(9) These cases are distinguishable from those in which the plaintiff suffered physical injury in an accident and sought additional damages for emotional distress arising from witnessing the injury or death of another person also involved in the accident.(10)

To be sure, Dunphy is a tragedy for reasons other than making bad law. Eileen Dunphy had lived with Michael Burwell, her fiance, for more than two years when she witnessed his death at the hands of a careless driver who struck him while he was changing a tire on a highway. Dunphy cared for her stricken fiance until help arrived and spent brief moments with him at the hospital until he died the following afternoon. She sued for the "mental anguish, pain and suffering" she endured from witnessing the incident. Although the lower court awarded the defendant summary judgment, this order was reversed on appeal.

Clearly, Dunphy was governed by Portee v. Jaffee. The evidence indicated that Dunphy and her fiance lived together in a relationship that possessed many attributes of a marriage. But was being engaged to and cohabiting with a person tantamount to a "marital or intimate, familial relationship" under Portee? It was, according to the Dunphy majority. Quoting "intimate emotional bonds" language from Portee to bolster its expansive construction of an "intimate, familial relationship," the Dunphy court concluded that the "quality and characteristics" of the relationship, not "the label affixed to it," were intended to govern the scope of protection afforded by Portee. The Dunphy court concluded that nothing in Portee limited the "intimate, familial relationship" to those of consanguinity.

The 2-1 Dunphy majority found further support for its unprecedented conclusion in case law addressing entirely different issues. First on its list were decisions striking down zoning ordinances that narrowly defined "family."(11) These land use cases were said to be "illuminating" because they stand for the proposition that family status is to be determined by "the qualities of the actual relationships at issue in the context of the goals sought to be served by the legal standard at issue."

Next, the court focused on decisions that defined "wife" for purposes of workers' compensation. In Parkinson v. J. & S. Tool Co.(12) and Dawson v. Hatfield Wire and Cable Co.,(13) women who were not legally married sought benefits under the New Jersey workers' compensation statute after their de facto husbands died in work-related accidents.(14) In each of these cases the New Jersey Supreme Court held that the public policies underlying workers' compensation law would be furthered by recognizing the petitioner's status as a wife under a de facto marriage theory.(15) Based on these cases, the Dunphy majority was satisfied that its novel holding was adequately supported by existing law.

In closing, the Dunphy majority underscored its view that "definitional flexibility" should serve as the touchstone for developing and applying common law tort standards, stating, "It is clear that the meaning of `intimate, familial relationship' for the purposes of eligibility to sue in tort must be based upon the qualities and characteristics of the particular relationship and not upon a mechanistic formula in a definition." Even in a de jure relationship, the court added, a defendant should have the chance to show that the plaintiff's claim is without merit because an intimate emotional relationship is lacking.

The factors to be considered in determining whether a particular relationship is sufficiently close to justify recovery were said to include "whether the plaintiff and 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."

The dissenting opinion in Dunphy opposed the majority's unduly expansive interpretation of Portee. It viewed the Portee familial relationship as limited to blood ties. It was up to the New Jersey Supreme Court to extend the protection of Portee to plaintiffs claiming to have the "functional or emotional" equivalent of a marital or family relationship, the dissent declared. Finally, the dissent pointed out that Portee was based on the California Supreme Court's decision in Dillon v. Legg and that court in Elden v. Sheldon(16) refused to expand Dillon to a cohabitant relationship resembling a marital relationship.

Butcher v. Superior Court

And Elden v. Sheldon

Dunphy dealt a resounding blow to the defense bar's endless struggle to limit the class of persons to whom a tort duty is owed. In recent years, plaintiffs also have gained some ground in the area of loss of consortium...

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