Goncalvez v. PatutoGoncalvez v. Patuto
Resolution of these issues requires some extended background exposition, both legal and factual. Insofar as we can reconstruct from the regrettably sparse record before us, Mario A. Goncalvez, while riding his bicycle, was struck by an automobile being driven by defendant Anthony Patuto. Mario died as a result of the injuries he then sustained. The accident was witnessed both by Mario‘s father, plaintiff Antonio Goncalvez, and by his brother Rui, on whose behalf this action was brought. The accident occurred on August 18, 1976. The brothers were then apparently eight and ten years old although we cannot ascertain from this record either their precise ages or which was the elder.
Almost two years after the aсcident, on March 13, 1978, the first action generated by the accident was commenced. Although the pleadings therein are not included in this record, it appears to have been a wrongful death and survival action prosecuted by the father Antonio Goncalvez, as administrator ad prosequendum of Mario and as administrator of the estate of Mario. It further appears that a per quod claim was asserted in that action by both of Mario‘s parents, Antonio and Maria Goncalvez, who are named as individual plaintiffs in the caption. The wrongful death action was settled in November 1979 for a total recovery of $15,000 and а release given to defendant. The named releasors were Antonio Goncalvez as administrator ad prosequendum and administrator, and Antonio and Maria Goncalvez
Finally, it appears that because of the potential interest of Rui, the minor brother in the wrongful death action proceeds, a guardian ad litem was appointed to review the settlement and to report to the court on Rui‘s interest therein.2 Although the report of the guardian ad litem appears to suggest that the entire settlement may have been allocated to the wrongful death claim, nevertheless there remains a question as to whether any of it was allocated to the survival action.3 The distinction is critical in terms of Rui‘s entitlement to a share of the procеeds. Thus, pursuant to
After the conclusion of this first action, the New Jersey Supreme Court, on July 29, 1980, issued its opinion in Portee v. Jaffee, 84 N.J. 88 which clarified the law governing recovery for the negligent infliction of emotional distress. Making clear that a claimant‘s right to seek such a recovery was not dependent upon his also having sustained a physical impact or being in imminent risk of physical impact, the court identified the four elements of the emotional-injury cause of action, to wit,
(1) The death or a 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. [at 101]
Significantly, the court did not view the principles it enunciated in Portee v. Jaffee as constituting either a departure from or
Since Falzone [Falzone v. Busch, 45 N.J. 559 (1965)] this Court‘s decisions have shown no hostility to the imposition of liability for negligently causing mental or emotional distress even without an attendant risk of physical harm. [84 N.J. at 95]
Some four months after Portee was decided this action was instituted by Antonio Goncalvez, as guardian ad litem for Rui and Antonio and Maria Goncalvez, individually. The first count of the complaint sought damages for Rui‘s emotional injury resulting from his observation of Mario‘s fatal accident, the second count sought damages for the father, Antonio, for his emotional injury resulting therefrom, and the third count sought per quod damages for the parents resulting from Rui‘s emotional injury. Defendant moved for summary judgment dismissing the complaint. He contended first that Portee, upon which the complaint was conceptually founded, should not be retrospectively applied. Alternatively, he contended that the cause of action was barred by the release given in thе first action, that Rui‘s claim was not cognizable because the fraternal relationship does not meet the Portee requirement of an “intimate familial relationship,” and that the father‘s claim was not cognizable because it was barred by the statute of limitations. The trial judge, concluding that Portee should only be prosрectively applied, granted the motion. We reverse as to the first and third counts seeking recovery for Rui‘s emotional injury and his parents’ per quod claim derivative therefrom.
We hold first that Portee v. Jaffee is clearly entitled to retrospective application. It is well settled law in this jurisdiction that, absent a clear demonstration of public policy considerations to the contrary, the overruling of a judicial decision is retrospective in nature. Mirza v. Filmore Corp., 92 N.J. 390, 396-397 (1983); Darrow v. Hanover Tp., 58 N.J. 410, 413 (1971); Cogliati v. Ecco High Frequency Corp., 181 N.J. Super. 579, 582 (App.Div. 1981), aff‘d. 92 N.J. 402 (1983). This principle is, a
As categorized by Mirza, supra, the typical countervailing circumstances militating against retrospectivity are justifiable reliance by parties and the community as a whole on prior doctrine, a potentially adverse effect оn the administration of justice and a determination that the purpose of the new doctrine will not be advanced by retroactive application. Particularly in view of the court‘s own perception, expressed in Portee, that that decision was foreshadowed, if not indeed rendered inevitable, by thе development to that point of the law on the subject of emotional distress, we are satisfied that the factor of substantial reliance is not here significantly or critically involved. Nor do we perceive any impediment to retrospectivity in the other factors identified by Mirza. The special factors relied on by Willis v. Conservation & Ec. Develop. Dep‘t, 55 N.J. 534, 541 (1970), and Darrow v. Hanover Tp., supra, 58 N.J. at 414-416, which denied retrosрectivity to the overruling of sovereign immunity and interspousal immunity, respectively, because of administrative implications and widespread reliance are simply not present here. There is thus no reason why the ordinary and presumptive rule of retrospectivity should not apply to actions for еmotional injury as it has been applied, for example, to the liability of commercial landlords for abutting sidewalk conditions, to the abolition of charitable immunity and to the payment of prejudgment interest. See, respectively, Mirza v. Filmore Corp., supra; Dalton v. St. Luke‘s Catholic Church, 27 N.J. 22 (1958), and Busik v. Levine, 63 N.J. 351, 360-361 (1973) app. dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973).
We consider next the effect of the release in the first action on the maintainability of this action.5 There are several
Even more significant is the fact that Rui‘s emotional injury claim constitutes his own independent cause of action. Unlike all the claims made in the first action resulting from Mario‘s injury and death, Rui‘s emotional injury claim is not derivative therefrom in any practical or technical sense. Its status is precisely the same as if he had sustained his own physical injury in the bicycle-аutomobile accident but no suit on his behalf was simultaneously instituted. Its subsequent maintainability would
Nor is that cause of action barred by the release in the first action. It is axiomatic that a release of a defendant will release him only in respect of those claims by those parties as are actually or intended to be encompassed thereby. See Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 559 (1980). And see 2 Restatement, Contracts 2d, § 284, comment c, at 392-393 (1981). Rui‘s claim was not encompassed within the subject matter scope of the release. Nor was he, by representation or otherwise, a party to the release. The ineluctable conclusion, therefore, is that his own independent cause of action survived the release.
We are further persuaded that since Rui‘s independent cause of action survived the release, the per quod aсtion of his parents deriving therefrom also survived. Clearly, they signed the release only in the father‘s representational capacity as administrator and administrator ad prosequendum of Mario‘s estate, and in respect of their own derivative claims resulting from Mario‘s injury and death. They did not sign in a representational сapacity in respect of Rui‘s own injury claim or in respect of their derivative claims resulting from Rui‘s injury. As a conceptual and procedural imperative, the per quod claim is not properly made until assertion of the cause of action from which it derives, and, as a proper procedural matter, that is the
Finally, we are satisfied that the present per quod claim is not barred by any applicable statute of limitations.
We do, however, agree with defendant that the father‘s cause of action for emotional distress resulting from the witnessing of his son‘s death is precluded by the statute of limitations.
We need not dwell over defеndant‘s final argument regarding the qualification of the fraternal relationship for a cause of action as defined by Portee. The intimacy of any family relationship giving rights to such a cause of action is ultimately a matter of proof. We are nevertheless convinced that the fraternal relationship presumptively qualifies. The strength, interdependence and unique emotional commitments of that relationship have been recognized at least as far back as the Book of Genesis.
The summary judgment appealed from is affirmed insofar as it dismisses the second count of the complaint. It is reversed insofar as it dismisses the first and third counts of the complaint whereby the infant brother of the decedent asserts a cause of action for emotional injury and his parents assert a per quod claim derivative therefrom. Those counts of the complaint are remanded to the trial court for further proceedings.