Maldonado v. Leeds2/3/2005
s psychological sequelae.'" Trisuzzi v. Tabatchnik, 285 N.J. Super. 15, 27 (App. Div. 1995) (quoting Eyrich v. Dam, 193 N.J. Super. 244, 253 (App. Div.), certif. denied, 97 N.J. 583 (1984)). Liability will be imposed only if the injury is "sufficiently palpable, severe, or enduring." Decker v. Princeton Packet, Inc., 116 N.J. 418, 431 (1989). Mere aggravation, embarrassment, an unspecified number of headaches, loss of sleep, and lack of interference with the every day routine do not, as a matter of law, constitute severe emotional distress. Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 368-69 (1988). Evaluation of emotional distress claims raises questions of law and fact involving both judge and jury. Id. at 367. "The court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved." Ibid. "Severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including... post[-]traumatic stress disorder." Taylor v. Metzger, 152 N.J. 490, 515 (1998) (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. App. 1997)). Post-traumatic stress, therefore, qualifies as emotional distress for purposes of a Portee claim. The jury is free to accept or reject the claim after reviewing the evidence. Ibid.; Hill v. Dep't of Corr. Comm'r, 342 N.J. Super. 273, 297-98 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
The trial judge dismissed plaintiff's emotional distress because she had not sought treatment for several years after the accident. The judge noted that "[plaintiff] says, " t's because she did not have insurance and she could not, therefore, seek medical or psychological help for her emotional distress." Taking judicial notice of the fact that there are clinics that provide psychological help, the judge dismissed the claim.
We disagree with the trial judge's assessment. " n order to evaluate fairly whether plaintiff's emotional distress was idiosyncratic, the average person must be one similarly situated to the plaintiff." Taylor, supra, 152 N.J. at 516. Here, we have a mother who witnessed her seven-year-old child hit by the vehicle, become impaled on the muffler and dragged under the vehicle while she was running after it and banging on it to stop. Even after the vehicle stopped, the child was pinned under it until it could be lifted and the child removed. Obviously, the child's severe injuries diverted and preoccupied this mother, such that she was unlikely to attend to her own distress. Moreover, there is nothing in the record to indicate that plaintiff knew of the availability of the free clinics or that she could have utilized those services given the severity of the child's injuries and her need to attend to him. Dr. Rasin's diagnosis supports plaintiff's claim that she is suffering severe emotional distress in the form of post traumatic stress and panic disorders. In our view, a jury may reasonably find that plaintiff did, in fact, suffer "serious psychological sequelae," Trisuzzi, supra, 285 N.J. Super. at 27, and that her emotional distress is "palpable, severe, or enduring" as a result of witnessing her son's accident. Decker, supra, 116 N.J. at 431. Under the circumstances presented, plaintiff's claims for emotional distress cannot be dismissed "as a matter of law."
With respect to the statute of limitations, we are persuaded that a Lopez hearing is mandated to determine when plaintiff discovered that she suffered a compensable injury. N.J.S.A. 2A:14-2 requires that a personal injury claim be brought within two years of the accrual of the cause of action. The discovery rule, however, has be
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