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Dunphy v. Gregor6/2/1994
The opinion of the Court was delivered by
HANDLER, J.
Many states, including our own, recognize the tort commonly referred to as "bystander" liability. Bystander liability allows recovery for the emotional injury suffered by a person, who, as a bystander, witnesses the wrongful death or serious physical injury of another person with whom the bystander had a close, substantial, and enduring relationship. In this case, the central inquiry focuses on the nature of that relationship. The specific issue presented is whether bystander liability allows recovery by a person who was not legally married to a deceased victim but who cohabitated with and was engaged to marry the decedent.
The issue is sharpened by the conflicting opinions of the lower courts. The trial court ruled that an action for negligent infliction of emotional distress was not available to a claimant who was neither married to nor involved in an intimate familial relationship with the decedent. The Appellate Division ruled that a jury should be allowed to determine whether the relationship of cohabitants engaged to be married was the functional equivalent of an intimate familial relationship. 261 N.J. Super. 110 (1992). A Dissent in the Appellate Division expressed the view that only persons legally married would be entitled to such a cause of action. Id. at 125.
The appeal is before this Court as a matter of right because of the Dissenting opinion. R. 2:2-1(a)(2).
I
Eileen Dunphy and Michael T. Burwell became engaged to marry in April 1988 and began cohabitating two months later. The couple set a date of February 29, 1992, for their wedding. On September 29, 1990, the couple responded to a friend's telephone call for assistance in changing a tire on Route 80 in Mount Arlington. As Michael changed the left rear tire of the friend's car on the shoulder of the roadway, he was struck by a car driven by defendant, James Gregor. After being struck by the vehicle, his body was either dragged or propelled 240 feet. Eileen, who had been standing approximately five feet from Michael, witnessed the impact, and ran to him immediately. Realizing that he was still alive, she cleared pebbles and blood from his mouth to ease his breathing. She attempted to subdue his hands and feet as they thrashed about, all the while talking to him in an effort to comfort him. The following day, after a night-long vigil at Dover General Hospital, Eileen was told that Michael Burwell had died as a result of his injuries. Since the accident, Eileen has undergone psychiatric and psychological treatment for depression and anxiety. She instituted an action seeking to recover damages for the "mental anguish, pain and suffering" experienced as a result of witnessing the events that led to the death of her fiance.
Eileen testified at her deposition that both she and Michael had taken out life-insurance policies making each other beneficiaries. They had maintained a joint checking account from which they had paid their bills, and also they had jointly purchased an automobile. In addition, Michael had asked her several times to elope with him, and he had introduced her in public as his wife.
II
In Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), this Court first recognized a cause of action for the negligent infliction
of emotional injury experienced by a bystander who witnessed the wrongful death of another person. A mother suffered horrendous emotional tr
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