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Graves v. Estabrook3/3/2003
the abolition of common law marriage as evidence of the public policy in favor of formal marriage. Id. at 587. Elden found no convincing reason to permit recovery to couples who bear no legal obligations to each other to the same extent as those who undertake such obligations. Id.
The court in Elden apparently relied upon the dubious assumption that the possibility of recovery in tort litigation is an incentive to marry. Rejecting this assumption, the New Jersey Supreme Court observed that "a person who would not otherwise choose to marry would not be persuaded to do so in order to assure his or her legal standing in a future personal injury action should that person have the misfortune of witnessing the serious injury of his or her spouse." Dunphy, 642 A.2d at 379. The court noted that " arriage will still maintain its preferential status under the law" and that allowing recovery "will not discourage marriage as a worthwhile and desirable relationship or erode society's commitment to the institution of marriage." Id. We agree.
The second reason relied upon in Elden was the "difficult burden on the courts." Elden, 758 P.2d at 587. Elden reasoned that " determination whether a partner in an unmarried cohabitation relationship may recover damages for emotional distress based on such matters as the sexual fidelity of the parties and their emotional and economic ties would require a court to undertake a massive intrusion into the private life of the partners." Id.
Again, we agree with the New Jersey Supreme Court, which noted that " ur courts have shown that the sound assessment of the quality of interpersonal relationships is not beyond a jury's ken and that courts are capable of dealing with the realities, not simply the legalities, of relationships to assure that resulting emotional injury is genuine and deserving of compensation ." Dunphy, 642 A.2d at 378. Moreover, inquiry into the quality and intimacy of a relationship is often necessary in loss of consortium cases. See, e.g., id. at 378; Labonte v. National Gypsum, Co., 113 N.H. 678, 682-83 (1973). Engaging in a similar inquiry in the instant case breaks no new ground.
Furthermore, the real burden is not on the court but on the plaintiff who chooses to seek recovery for negligent infliction of emotional distress. At the outset, the plaintiff will know that the details of the relationship with the decedent will be examined and that this may involve an intrusion into the plaintiff's private life. The decision to submit to this searching inquiry is the plaintiff's choice and should not be the basis for limiting liability.
Third, the court in Elden relied upon "the need to limit the number of persons to whom a negligent defendant owes a duty of care." Elden, 758 P.2d at 588. The court noted that " t would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends." Id. (quotation omitted). The court stated that the absence of a bright line rule "would result in the unreasonable extension of the scope of liability of a negligent actor." Id. While admitting that the "close emotional ties between unrelated or distantly related persons is often strong" and "the result of injury . . . may be as devastating as that suffered by a member of the immediate family," the court concluded that " he problems of multiplication of actions and damages that would result from such an extension of liability would place an intolerable burden on society." Id. (citat
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