Richard Litwin, Etc. v. Whirlpool Corporation

• Court: New Jersey Superior Court Appellate Division
• Decided: June 11, 2014
• Docket: A-0186-13
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0186-13T1

RICHARD LITWIN, Administrator Ad Prosequendum for the ESTATE OF LOUIS M. ACERRA, and RICHARD LITWIN, Individually, APPROVED FOR PUBLICATION

Plaintiff-Appellant, June 11, 2014

v. APPELLATE DIVISION

WHIRLPOOL CORPORATION, as successor in interest to MAYTAG CORPORATION,

Defendants,

and

A&E FACTORY SERVICES, LLC; MICHAEL S. CECERO, individually, and as agents, servants, and/or employees of A&E FACTORY SERVICES, LLC,

Defendants-Respondents. _________________________________

Argued January 8, 2014 - Decided June 11, 2014

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from an Interlocutory Order of the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4479-09.

Jacqueline DeCarlo argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo, of counsel and on the briefs). Paul E. White (Sugarman, Rogers, Barshak & Cohen, P.C.) of the Massachusetts bar, admitted pro hac vice, and Martin L. Sisselman argued the cause for respondents (Sisselman & Schwartz, LLP, and Mr. White, attorneys; Andrew R. Levin (Sugarman, Rogers, Barshak & Cohen, P.C.) of the Massachusetts bar, admitted pro hac vice, Mr. White, and Mr. Sisselman, on the brief).

The opinion of the court was delivered by

SAPP-PETERSON, P.J.A.D.

We consider this interlocutory appeal following the Supreme

Court's reversal of our denial of interlocutory review of the

trial court order granting partial summary judgment to

defendants A&E Factory Services, LLC (A&E) and Michael S.

Cecero, who repaired plaintiff Richard Litwin's Whirlpool

dishwasher. The motion judge granted summary judgment, finding

plaintiff failed to satisfy the observation prong necessary to

assert a Portee1 claim and also failed to establish a prima facie

case of severe emotional distress. We now reverse.

I.

On June 12, 2009, around midnight, 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

after observing smoke rising from downstairs. Once in the

1 Portee v. Jaffee, 84 N.J. 88 (1980).

2 A-0186-13T1 bedroom, they covered the door with clothing to prevent the

smoke from seeping into the bedroom. Acerra subsequently ran

out into the hallway, which was filled with smoke and flames.

Plaintiff called out to Acerra, but when he did not respond,

plaintiff believed he had escaped and proceeded to climb out the

second floor window and hung onto the window ledge until rescue

personnel arrived and brought a ladder to assist him.

Once on the ground and realizing that Acerra had not

escaped, he attempted to re-enter the house, but firefighters

restrained him. Shortly thereafter, he observed rescue

personnel bringing his son out of the house. Acerra's body was

still burning, smoldering and smoking, with skin melting from

his bones. Although Acerra survived the fire, he sustained

third-degree burns to nearly 56% of his body. Plaintiff was his

primary caretaker for the next three years, while he underwent

multiple skin grafting and related procedures. Acerra died on

January 17, 2012, after undergoing another procedure related to

his injuries.

Plaintiff commenced treatment with psychologists Dr. Robbin

J. Kay, in June 2010, and with Dr. Theodore J. Batlas in March

2011. Both doctors diagnosed plaintiff as suffering from post-

traumatic stress disorder (PTSD) stemming from the fire. Dr.

Kay reported that plaintiff's symptoms were triggered by

3 A-0186-13T1 smelling fire or smoke and he experienced flashbacks of the

fire. Dr. Batlas reported that plaintiff was an "eyewitness to

his son's catastrophic burn injuries and was essentially the

only person involved in caretaking for his son when he returned

[home] . . . to rehabilitate following his hospitalization." He

also opined that plaintiff continued to "suffer from flashbacks

related to the fire and subsequent related events . . . [and]

suffer[s] tremendous guilt at not being able to have done more

to rescue/save his son both in the fire and from his subsequent

death."

Prior to the fire, the United States Product Safety

Commission announced a recall campaign to address a potential

fire hazard involving several models of Maytag and Jenn-Air

dishwashing units, including the model plaintiff owned.

Whirlpool acknowledged at least 135 reports of fires directly

related to the recall campaign. Plaintiff received a letter

regarding a recall on his dishwasher; he called the 800 number

on the letter and was informed a repair kit would be sent to

him. Plaintiff refused the repair kit and requested that a

repair technician come to his home. In July 2007, Whirlpool

sent Cecero, an A&E employee, to service the dishwasher.

Following the fire, plaintiff filed a complaint,

individually and on behalf of Acerra for injuries they sustained

4 A-0186-13T1 as a result of defendants' alleged negligence. Among the claims

asserted against defendants was a bystander or Portee claim.

Defendants filed a motion seeking partial summary judgment

dismissing plaintiff's Portee claim. Whirlpool settled

plaintiff's claims prior to the return date of the motion and

withdrew its motion. A&E and Cecero, however, proceeded with

the motion.

In seeking summary judgment, defendants urged that an

essential element of a Portee claim requires the party asserting

the claim to have directly witnessed the injury-producing event.

Additionally, defendants contended the claimed severe emotional

distress must be causally related to direct observation of the

injury-producing event and, in addition, plaintiff failed to

demonstrate that he sustained extreme or severe emotional

distress attributed solely to witnessing Acerra being injured.

In granting summary judgment to defendants, the trial

court, in a written opinion, rejected plaintiff's argument that

a Portee claim does not require direct observation when the

party asserting the claim has witnessed the injury-producing

event through sensory perception. The court stated plaintiff's

argument was an unwarranted expansion of the "narrow holding in

Portee that direct sensory and contemporaneous observation be

occasioned by immediate perception." The court concluded

5 A-0186-13T1 plaintiff "did not observe the serious injury to his stepson

because he did not see his stepson until after the injuries had

already occurred and thus fail[ed] to satisfy the observational

prong under Portee." The court also found plaintiff failed to

establish that his claimed severe emotional distress was "a

direct result of having seen the injuries to his stepson take

place."

Plaintiff moved for reconsideration, which the court

denied. The present appeal followed.

On appeal plaintiff urges the trial court failed to abide

by the fundamental principles governing summary judgment

motions, that is, to accord all favorable inferences to him, and

had it done so, the court would have found he established "the

prima facie requirements of the observation prong of Portee

[and] the prima facie requirements of the 'severe emotional

distress' prong of Portee." We agree.

II.

A trial court must grant a summary judgment motion if "the

pleadings, depositions, answers to interrogatories and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46–2(c); see also Brill v. Guardian Life

6 A-0186-13T1 Ins. Co. of Am., 142 N.J. 520, 529–30 (1995). "An issue of fact

is genuine only if, considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion,

together with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the issue to the

trier of fact." R. 4:46–2(c). If the evidence submitted on the

motion "'is so one-sided that one party must prevail as a matter

of law,' the trial court should not hesitate to grant summary

judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512,

91 L. Ed. 2d 202, 214 (1986)).

When a party appeals from a trial court order granting or

denying a summary judgment motion, we "'employ the same standard

[of review] that governs the trial court.'" Henry v. N.J. Dep't

of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v.

DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). However,

we review legal conclusions de novo. Henry, supra, 204 N.J. at

330.

III.

In Portee, supra, 84 N.J. at 101, our Court recognized a

cause of action for damages to a bystander as a result of

witnessing an injury-producing event to one with whom the

bystander has an intimate or familial relationship. Ibid. In

7 A-0186-13T1 order to assert a Portee claim, a plaintiff must establish four

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.

[Ibid.]

The third and fourth elements are implicated in this appeal.

A. Observation

"The viability of Portee claims depends only on whether the

plaintiff has had a sensory, contemporaneous perception of an

injury that was sustained by a spouse or close family member,

irrespective of the distance from which that perception arises."

Jablonowska v. Suther, 195 N.J. 91, 107 (2008) (noting that a

Portee claim "is not dependent on the aggrieved person's

presence within the zone of danger created by the defendant's

negligent conduct"). Where a plaintiff "observe[s] the kind of

result that is associated with the aftermath of an accident,

such as bleeding, traumatic injury, and cries of pain," the

observation prong is satisfied. Frame v. Kothari, 115 N.J. 638,

643 (1989). Satisfaction of the observation prong is also found

8 A-0186-13T1 where the plaintiff witnesses "the victim when the injury is

inflicted or immediately thereafter." Id. at 644. However,

"[m]erely being on the scene may not be enough. The injury must

be one that is susceptible to immediate sensory perception, and

the plaintiff must witness the victim when the injury is

inflicted or immediately thereafter." Ibid.

Here, the facts, when viewed most favorably to plaintiff,

establish that plaintiff was inside his home when he and Acerra

were awakened by the alarm and observed the smoke rising up to

the second floor. Plaintiff felt the warmth of the doorknob as

he attempted to look for Acerra, who had left the bedroom.

Fearing what was happening on the other side of the door,

because the doorknob of his bedroom felt warm, he did not leave

the bedroom. Once outside, however, plaintiff realized Acerra

had not escaped and knew he was still inside the burning home.

Plaintiff observed his son's body still smoldering with peeling

skin, while rescuers brought him outside. Moreover, plaintiff

presented videotaped testimony from Acerra's physicians, who

described, in graphic detail, the catastrophic burn injuries

they observed, not contemporaneously to the fire, but

thereafter. A jury could reasonably infer from their testimony

the magnitude of emotional distress plaintiff experienced

because he had been in the fire, was an eyewitness to his son

9 A-0186-13T1 still in the burning house, and observed Acerra's smoldering

body being removed from the burning house.

We are convinced that under the Brill standard, plaintiff

observed the kind of result that is associated with the

aftermath of traumatic injury and that it was not necessary for

him to have been inside his home observing his son's body

burning in order to satisfy the observation prong supporting a

Portee claim. Further, as Judge Louis F. Locascio reasoned in

Ortiz v. John D. Pittenger, Builder, Inc.:

[F]ire cases are unique because "the flames are likely to hide the victims from the view of those present at the scene. To disallow recovery to plaintiffs in such cases merely because they did not actually view the injury being inflicted on the bodies of the victims defies reason and common sense."

[382 N.J. Super. 552, 561 (Law Div. 2004) (quoting Stump v. Ashland, Inc., 499 S.E.2d 41, 49 (1997)) (emphasis added in the original).]

We find the motion judge's conclusion that the facts here

were most analogous to the facts in Vasilik v. Federbush, 327

N.J. Super. 6 (App Div. 1999), misplaced. In Vasilik we found

the plaintiff father did not meet the observation prong under

Portee because he arrived at the scene after his son

deliberately jumped in front of a dump truck, committing

suicide. Id. at 9. We concluded the plaintiff's observations

of the rescue personnel attempting to resuscitate his son did

10 A-0186-13T1 not meet the observation prong. Id. at 13. In the present

matter, however, plaintiff did not arrive at the scene after the

fact. Rather, plaintiff was inside the home as it was being

engulfed in flames; he knew that his son was still inside and

witnessed his son's smoldering body being carried out of the

home.

Plaintiff's experience is similar to the plaintiff

grandmother in Ortiz, supra, whose granddaughter slipped from

her grasp as they were attempting to escape their home during a

fire. 382 N.J. Super. at 555. The windows in the home

exploded, startling the grandchild, who then separated from her

grandmother's grasp, disappearing into the smoke and flames.

Ibid. Citing Wilks v. Hom, 3 Cal. Rptr. 2d 803, 807 (Ct. App.

1992), Judge Locascio interpreted the Portee observation prong

to include being "'sensorially aware' of a family member who is

within a burning building." Id. at 563. He reasoned: "Just as

the plaintiff in Portee watched the elevator crush her son,

Ortiz and Cruz watched the house engulf Jasmine in flames. The

fire was 'the injury-producing event,' which plaintiffs

observed." Ibid. Likewise, here, the fire was the "injury-

producing event," which plaintiff observed both while in the

home and after he escaped. Consequently, the motion judge

erred, as a matter of law, in concluding plaintiff failed to

11 A-0186-13T1 establish a prima facie Portee claim because he failed to

actually observe Acerra burning inside of the home.

B. Severe Emotional Distress

Turning to the fourth element of a Portee claim, the

resulting severe emotional distress, the motion judge

acknowledged that post-traumatic stress "qualifies as emotional

distress for purposes of a Portee claim," but found the

"singular reference in the third report of Litwin's expert

causally relating Litwin's PTSD to the injuries plaintiff

incurred by his stepson [wa]s not supported by the evidence in

the record." The judge explained:

Litwin relies on this statement as evidence that his emotional distress did arise from the injuries to his stepson. However, as [d]efendants correctly note, the portion of that diagnosis relating to "the effects of dealing with his son's trauma and recovery" is immaterial to the herein motion because those damages are not compensable under Portee. Additionally, this singular reference in the third report of Litwin's expert causally relating Litwin's PTSD with the injuries incurred by his stepson is not supported by the evidence in the record. The record in this matter is rife with examples of Litwin's current psychological trauma related to his own experience in the fire as well as the trauma related to caring for and dealing with the death of his stepson. The record also indicates a substantial amount of pre-fire emotional distress suffered by Litwin. However, there is no emotional distress causally linked directly to witnessing the injury to his stepson and Dr. Batlas's unsupported

12 A-0186-13T1 assertion is not enough to overcome the Portee threshold. As measured against the litany of evidence to the contrary, this matter does not present a sufficient disagreement to require submission to a jury but rather it is so one-sided that the Defendant must prevail as a matter of law. Brill, supra.

We agree the record contains significant evidence of pre-

existing depression plaintiff suffered unrelated to witnessing

his son being burned in the home. There is, however, nothing in

the record indicating plaintiff previously suffered from PTSD.

Consequently, viewed in the light most favorable to plaintiff,

PTSD is a new injury.

It is defendants who raise the issue of plaintiff's pre-

existing mental condition as a bar to recovery. Our Court, in

Scafidi v. Seiler, 119 N.J. 93, 116, 119 (1990), a medical

malpractice case, recognized the viability of a claim for

recovery of damages in a negligence action where a plaintiff, in

addition to the injuries claimed to be causally related to the

negligent conduct, purportedly had pre-existing injuries. The

Court, citing Gaido v. Weiser, 115 N.J. 310, 314-15 (1989)

(Handler, J., concurring), another malpractice action, noted

that Gaido

involved a claim relating to a patient suffering from a preexistent condition—he was mentally ill and suicidal—whose death by suicide was allegedly caused in part by the medical malpractice of the defendant. The

13 A-0186-13T1 Court, in affirming the judgment of the Appellate Division, impliedly acknowledged the soundness of the Evers [v. Dolinger, 95 N.J. 399 (1989)] standard of causation [which] can be understood to entail the inquiry whether "the increased risk of suicide by [the patient] caused by [the defendant's] failure to provide adequate medical treatment was itself a substantial factor that contributed to [the patient's] suicide."

Here, plaintiff did not plead an aggravation of a pre-

existing mental condition in asserting his Portee claim. "When

a plaintiff does not plead aggravation of pre-existing injuries,

a comparative analysis is not required to make that

demonstration." Davidson v. Slater, 189 N.J. 166, 170 (2007).

Plaintiff was only required to raise a genuinely disputed issue

of fact that he suffers from severe emotional distress, causally

related to defendants' negligence, in order to submit his Portee

claim to the jury. See Ibid. Plaintiff met his burden by

presenting evidence he suffers from PTSD as a result of

witnessing the injury-producing event.

Defendants, however, have raised a genuinely disputed

factual issue as to whether plaintiff's claimed severe emotional

distress is causally related to his witnessing the injury-

producing event. They point to pre-existing mental health

conditions and other injuries plaintiff may have separately

14 A-0186-13T1 experienced as a result of the fire, which defendants claim are

unrelated to plaintiff witnessing the claimed injury-producing

event. This disputed issue as to causation is for the fact-

finder to decide. Ibid.

In concluding here that there was "no emotional distress

causally linked directly to witnessing the injury to his

stepson[,]" the motion judge made a factual determination that

was inappropriate in the context of this summary judgment

record. When the facts are viewed in the light most favorable

to plaintiff, Brill, supra, 142 N.J. at 540, plaintiff has

raised genuinely disputed issues of fact that he suffered severe

emotional distress as a result of witnessing his son being

burned. This is not one of those unusual situations when no

reasonable fact-finder could conclude that plaintiff's claimed

severe emotional distress injury was caused by witnessing the

injury-producing event. See Davidson, supra, 189 N.J. at 170.

Reversed and remanded for further proceedings. We do not

retain jurisdiction.

15 A-0186-13T1