Portee v. Jaffee (N.J. 1980)

Procedural History: Plaintiff alleged negligence against landlord. Companies involved in designing and maintaining the elevator were also sued. The trial court found that plaintiff’s claims for psychological injury did not meet the requirements of Falzone. The appeal was reviewed directly by the supreme court.

Facts: Plaintiff and her 7-year-old son, Guy, were living in an apartment owned by Jaffree. Guy became trapped between the elevator’s outer door and the wall of the elevator shaft. He was dragged when the elevator was activated, and another child ran to seek help. Plaintiff and police arrived and the police worked for 4.5 hours to free the child, but during that time, the child died. Plaintiff watched as her son moaned in agony and was retrained from touching him. Guy suffered from multiple bone fractures and internal injuries. After her son’s death, plaintiff became depressed and attempted suicide and required physical therapy for her slashed wrist and extensive counseling and psychotherapy.

Issue: Can a parent recover damages for the emotional anguish of watching her young child suffer and die in an accident caused by defendant’s negligence?

Rules: The creation of a risk of physical harm would be a sufficient indication that defendant’s conduct was unreasonable.

Dillon v Legg, Cal. 1968:

Factors which would determine whether an emotional injury would be compensable because “foreseeable” –

  1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
  2. Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence
  3. Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship

Application: Because the emotional distress was foreseeable and because the safety of loved ones is the deepest wellspring of emotional welfare, the defendant’s duty of reasonable care to avoid physical harm to others should extend to the avoidance of this type of mental and emotional harm.


Negligent infliction of emotional distress requires proof of the following elements:

  1. The death of 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

Resulting severe emotional distress

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