William A. Ruskin: Judicial Limitations On Emotional Distress Claims

By William A. Ruskin


Some states, including New Jersey, permit a claim for emotional distress by a plaintiff who witnesses the death of a family member. Portee v. Jaffee, 84 N.J. 88 (1980) [enhanced version available to subscribers]. There was little doubt that the emotional distress claim in Portee was genuine. The case involved a mother who stood by helplessly as her seven year old son was crushed to death by an elevator door while crying out in pain and flailing his arms. Shortly thereafter, the distraught grieving mother attempted suicide by slitting her wrists.

Portee has been broadened over time to include intimate acquaintances, such as friends who live together. However, the Supreme Court of New Jersey recently refused to expand Portee to allow claims for emotional distress attendant to the loss of a beloved pet. The court was concerned that permitting such a claim would create an "ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings." The court observed that "not even all humans are engaged in a relationship that is sufficiently close to support such an award."

The facts of McDougall v. Lamm [enhanced version], decided on July 31, 2012, are poignant. Plaintiff Joyce McDougall was walking "Angel," her maltipoo, a cross between a maltese and a poodle, when a large, mixed breed dog attacked it, grabbed it by the neck, shook it violently and dropped it dead to the ground. In her suit against the attacking dog's owner, according to a report in the New York Law Journal on August 3, 2012, McDougall claimed that Angel had been her close companion for years and that the loss was especially hard for her since she and her husband had separated and her children had gone to college. Although the trial court awarded her $5,000 for the loss of the dog, the emotional distress count was dismissed on summary judgment. The Appellate Division affirmed.


In the toxic tort context, across the Hudson River from New Jersey, New York litigants look to In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 379 F. Supp. 2d 349 (S.D.N.Y. 2005) [enhanced version], which makes it clear that "damages are not recoverable for anxiety caused by property damage." Recovery for emotional distress in New York requires Plaintiffs to establish that emotional distress arises from injury or fear of injury to the person." The case General Accident Ins. Co. v. Black & Decker (U.S.), Inc., 266 A.D.2d 918, 918 (4th Dep't 1999) [enhanced version], stands for the proposition that "there is no cause of action for emotional distress caused by the destruction of one's property...nor for emotional distress caused by the observation of damage to one's property." In that case, the plaintiffs' children who observed their family home burn down from across the street, but were never themselves in any physical danger, were not permitted to seek damages for emotional distress.

New York courts draw a line where someone is claiming emotional distress for mere loss of chattel. A related claim "fear of injury to the person," requires proof that such fear has a rational basis. MTBE Products Liability Litigation, 379 F.Supp.2d at 430. Such a 'rational basis' requires "the clinically-demonstrable presence of a toxin in the plaintiff's body, or some other indication of a toxin-induced disease." Thus, in Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 592 N.Y.S.2d 782 (2d Dep't 1993) [enhanced version], plaintiffs seeking damages for sleeplessness, anxiety, and fear of developing cancer because defendants did not remove asbestos from their home saw their claims dismissed on summary judgment because they could not offer evidence of asbestos contamination that might develop into cancer. In the absence of such proof, the plaintiffs were not able to "guarantee the genuineness of the claim." Without such evidence of genuineness, New York courts typically dismiss such cases as speculative at the summary judgment phase of the proceedings.


Click here to read Todd Janzen's view that there is a difference between silage and curtilage and how the courts might view these up-in-the-air views by the EPA


  • Anonymous
    I can understand emotional distress as a witness to a crime. Seeing your child die in front of you and knowing there is nothing you could do to prevent it has a lasting effect on your quality of life. I am curious though of the legal status of working for an employer who is abusive to their staff on a daily basis.
  • Anonymous
