A Capehart Scatchard Blog

Plaintiff Found to Have Met Portee Observation Standard for Emotional Distress in Son’s Injury

By on June 18, 2014 in Blog with 0 Comments

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.



About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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