Richard Litwin, Etc. v. Whirlpool Corporation

NOT FOR PUBLICATION WITHOUT THE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).
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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."
[Ibid.]
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.
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