                  NOT FOR PUBLICATION WITHOUT THE
             PRIOR APPROVAL OF THE APPELLATE DIVISION


                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-4754-16T4

I'ASIA MORELAND, Individually and
as the Administratrix of the Estate
of I'MAYA MORELAND, I'ASIA MORELAND,
Guardian Ad Litem on behalf of
I'ZHIR MORELAND, and VALERIE BENNING,
                                             APPROVED FOR PUBLICATION
      Plaintiffs-Appellants,
                                                 August 17, 2018
v.
                                               APPELLATE DIVISION
WILLIAM PARKS, RONALD HUBSCHER, JR.,
ALBERT DINATALE, BENITO BELLO, CITY OF
TRENTON, and COUNTY OF MERCER,

      Defendants-Respondents,

and

SOVEREIGN BANK ARENA, n/k/a SUN BANK
ARENA, MERCER COUNTY IMPROVEMENT
AUTHORITY, STATE OF NEW JERSEY,
and GLOBAL SPECTRUM,

     Defendants.
_______________________________________

          Argued January 17, 2018 - Decided August 17, 2018

          Before Judge Fuentes, Manahan, and Suter.

          On appeal from Superior Court of New Jersey,
          Law Division, Mercer County, Docket No. L-
          0227-11.

          Robin Kay Lord argued the cause for appellants
          (Law Offices of Robin Kay Lord, LLC and
          Kardos,   Rickles,   Hand    &   Bidlingmaier,
          attorneys; Robin Kay Lord and Clifford D.
          Bidlingmaier, III, on the brief).

          Elizabeth C. Chierici argued the cause for
          respondent William Parks (Chierici, Chierici
          & Smith, attorneys; Donald R. Chierici, Jr.,
          on the brief).

          William J. O'Kane, Jr. argued the cause for
          respondent Ronald Hubscher (Archer & Greiner,
          P.C., attorneys; Frank D. Allen, William J.
          O'Kane, Jr., and Suzanne K. Collins, on the
          brief).

          John Morelli argued the cause for respondent
          City of Trenton, Albert DiNatale and Benito
          Bello.

          Lillian L. Nazzaro argued the cause for
          respondent County of Mercer (Arthur R. Sypek,
          Jr. Mercer County Counsel, attorney; Lillian
          L. Nazzaro, Assistant County Counsel, on the
          brief).

          Jennifer L. Hamilton argued the cause for
          amicus curiae Garden State Equality, Inc.
          (Hamilton   Law,   attorneys; Jennifer L.
          Hamilton, on the brief).

          Thomas H. Prol argued the cause for amicus
          curiae New Jersey State Bar Association
          (Robert B. Hille, President, New Jersey State
          Bar Association, attorney; Robert B. Hille,
          of counsel and on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     On January 30, 2009, Valerie Benning and I'Asia Moreland were

a same-sex couple who lived together with Moreland's two biological

children, I'Zhir, who was nearly five years old, and his younger


                                2                           A-4754-16T4
sister, two-year-old I'Maya.       Benning's godson, Armonti Martinez,

also lived with the couple at the time.             On that date, these two

adults and three children were waiting to cross a street to attend

the "Disney on Ice" show at the Sun Bank Arts Center in Trenton,

now known as CURE Insurance Arena.            While Benning and I'Maya were

holding hands waiting to cross the street, a fire truck and a

pickup truck collided.      The pickup truck struck I'Maya, propelling

her body sixty-five feet south of the intersection where she and

her family had been standing. Two-year-old I'Maya died as a result

of the accident.

      Plaintiffs filed a civil action against defendants predicated

on   several   theories    of   civil       liability,    including   bystander

negligent infliction of emotional distress (NIED).              After joinder

of issue and the exchange of discovery, the trial court granted

defendants'    motion     for   partial      summary     judgment   to   dismiss

Benning's bystander NIED claim.             The motion judge found Benning

did not present sufficient evidence that she had an "intimate,

familial relationship" with two-year-old I'Maya to satisfy the

requirements to bring a claim under Portee v. Jaffee, 84 N.J. 88

(1980).

      Plaintiffs moved before this court for leave to appeal the

trial court's order granting partial summary judgment on this

issue.    Garden State Equality, Inc., and the New Jersey State Bar

                                        3                                A-4754-16T4
Association moved to participate as Amici Curiae.             In an order

dated February 6, 2017, we denied the motion for leave to appeal.

By order dated July 7, 2017, the Supreme Court granted plaintiffs'

and amici's motions for leave to appeal and summarily remanded

this matter for this court to determine "whether plaintiff [Valerie

Benning]   may   pursue   her   claims   for   negligent    infliction    of

emotional distress" under Portee.

     After reviewing the record presented to the Law Division, we

conclude the motion judge erred in dismissing Benning's claims

under Portee as a matter of law.         We thus remand this matter to

the trial court for such further proceedings as may be warranted,

including a trial before a jury.

                                    I

     I'Maya was not biologically related to Benning.           At the time

of the accident, Benning did not have legal custody rights to

either I'Maya or her older brother I'Zhir.            According to her

deposition testimony taken on September 7, 2012, Benning met

Moreland in August 2007, when Moreland was working at Foot Locker

and Benning "just happened to be shopping."        They exchanged phone

numbers and started dating on August 22, 2007.             The record does

not precisely identify the date when Benning and Moreland began

living together as a family.       Viewing the evidence in the light

most favorable to Benning, they have been living together since

                                    4                              A-4754-16T4
approximately 2008.   Thus, at the time of Benning's deposition in

September 2012, they had been living together for nearly five

years.   They were engaged on November 19, 2011, and were married

on March 31, 2014.

     I'Maya was approximately thirteen months old when Benning and

Moreland began their romantic relationship.           At the time of the

accident, their household included Benning's godson Armonti, and

Moreland's   biological   children,   I'Maya    and    I'Zhir.     Benning

testified at her deposition that I'Maya began calling her "mom"

or "mommy" a few weeks into her relationship with Moreland; it

took approximately three months for the older boy I'Zhir to start

calling Benning "mom."    In a psychological evaluation report dated

October 12, 2015, Dr. Gerald Cooke noted that I'Zhir drew "[m]ommy

Val", "[m]ommy I'Asia," himself, I'Maya, and Armonti.            Dr. Cooke

also noted that despite the death of his younger sister and

Armonti's departure to live with his mother, I'Zhir "still thinks

of both of them as part of the family."        He opined that the child

"feels safest when he is with his two moms and also his grandmother

and his extended family."

     On the day of the accident, Benning was holding I'Maya's hand

as they waited to cross Route 129 to see Disney on Ice.            Benning

described hearing the fire truck's sirens, which alerted her to

stop and "find out which way it was coming from so I wouldn't put

                                  5                                A-4754-16T4
my kids into danger."       She has no recollection of the accident

itself.   At   her   deposition,   defense   counsel   asked   Benning   to

describe her reaction immediately after the accident:

           Q. Do you recall being struck by anything?

           A. No, I just remember being on the ground.

           Q. Do you have any recollection with respect
           to the incident once you were picked up by
           [Moreland]?

           A. After I was picked by [Moreland], she asked
           me if I was okay. And Armonti was screaming
           at the top of his lungs at the time.       And
           I'Zhir was saying that . . . he was okay, but
           he was scared, and he started to scream, a
           fire truck hit my sister, a fire truck hit my
           sister. And I didn't understand what he was
           saying, you know. I didn't know what he was
           saying.

           But, you know, I was trying to gather myself.
           So I asked [Moreland], I said, where is Maya?
           And she said, I don't know.     And I looked
           down, and I didn't see her. And Armonti was
           still screaming, but he was on the ground,
           because he couldn't stand up. And at first
           we thought that he was just . . . like
           screaming typical of a two-year-old, but his
           legs and his ankles were broke, and he
           couldn't move.

           And at that point I noticed that I'Maya was
           no longer holding my hand, and it dawned on
           me that [Moreland] was lifting me up. So I
           knew she wasn't, you know, next to me. And I
           looked up, and she was far away from me . . .
           going southbound. She was . . . further back
           on the highway . . . .

           Q. Okay.


                                     6                            A-4754-16T4
         A. After that, I looked at [Moreland]. She
         tried to pick Monti up.   And I told her --
         just gave her a look or -- that I was going
         to, you know, go get Maya. And just started
         running. It felt like forever.

         Q. Take your time. Take your time.    I realize
         this is difficult.

         A. I'm sorry.

         Q. That's okay.

                . . . .

         A. The death of anyone's child is devastating,
         but to talk about your own or one that you
         love like your own is even harder. Okay.

         Q. Take your time.

         A. At that point I remember [Moreland] like
         trying to scream, she's like, is Maya okay?
         And I knew she was not okay.       She was not
         okay. Within seconds after that, there was a
         female, I don't know who she was, and her child
         -- her child -- I heard he just started
         screaming, mom, please help them, mom, please
         help them, mom.

    I'Maya and Benning were brought to the hospital in separate

ambulances.   While en route to the hospital, Benning responded to

the questions the Emergency Medical Technicians (EMT) had about

I'Maya's medical history.     Benning testified that she told the

EMTs that I'Maya had a rare "G6 PD"1 deficiency and generally



1
  According to the National Institute of Health, Genetics Home
Reference:


                                 7                         A-4754-16T4
described her "likes and dislikes."            When she arrived in the

emergency room, Benning heard I'Zhir tell the medical staff: "my

name is I'Zhir, and I have two moms, and I know where I live . .

. ."

       Benning   testified   that   she   became   hysterical    after   she

learned that I'Maya had died.        She was placed in restraints until

she agreed to take some form of sedative "so I could say goodbye"

before the medical staff removed the child's body.              The nurses

removed Benning's restraints after the sedatives began to calm her

down.      Benning was also involved in the financial decisions

regarding the child's funeral arrangements.              She and Moreland

borrowed money from their families to pay for the cost of the

funeral.     The   record    also   contains   reports   of   psychological

evaluations that describe the emotional and psychological trauma


            Glucose-6-phosphate dehydrogenase deficiency
            is a genetic disorder that occurs almost
            exclusively in males. This condition mainly
            affects red blood cells, which carry oxygen
            from the lungs to tissues throughout the body.
            In affected individuals, a defect in an enzyme
            called    glucose-6-phosphate    dehydrogenase
            causes red blood cells to break down
            prematurely. This destruction of red blood
            cells is called hemolysis.

            [Genetics Home Reference, Glucose-6-phosphate
            dehydrogenase deficiency, National Institute
            of                                    Health,
            https://ghr.nlm.nih.gov/condition/glucose-6-
            phosphate-dehydrogenase-deficiency.]

                                      8                             A-4754-16T4
Benning suffered as an aftershock of             I'Maya's death and the

emotional pain she continues to suffer.

                                         II

    The    motion   judge     characterized     Benning        and   Moreland's

relationship at the time of the accident as "lovers." With respect

to Benning's relationship with I'Maya, the judge found:

            The plaintiffs allege that the decedent . . .
            referred to Ms. Benning as mom.     It seemed
            clear that a [Portee] claim . . . is reserved
            to those who are actually closer related and,
            not only closely related by way of being
            family but also in an intimate family
            relationship. So an intimate relationship
            alone would not suffice.

            There is a requirement that they have to be
            family.     [Portee] talks about familial
            relationship but it didn't say family-ish or
            something similar to a family.        It says
            familial and there are cases that must use the
            word family. It has to be family and there's
            no question of fact that Ms. Benning was not.
            The evidence is that she was a girlfriend and
            she might have been part of the child's
            household, but by any definition that I can
            find in the law about family, Ms. Benning
            doesn't meet it.    The undisputed facts are
            that she was neither a biological or adoptive
            parent . . . .

     The    judge   also    considered   the   concept    of    "psychological

parent,2" but rejected its application here because Benning had


2
  The term "psychological parent" was first discussed by our
Supreme Court in V.C. v. M.J.B., 163 N.J. 200 (2000). In that
case, the Court was "called on to determine what legal standard


                                     9                                  A-4754-16T4
not presented expert evidence in support of this approach.       The

judge found expert testimony was necessary

          to know what goes on in a [two]-year-old's
          mind, I understand that the [two]-year old has
          passed away, you can't do a psychological
          evaluation now but if there had been an
          application for custody where Ms. Benning was
          proposing that she was a psychological parent,
          that could have happened during the [two]-
          year-old's lifetime.     It didn't happen so
          there's no such report . . . [and] [j]ust using
          the word mom all by itself doesn't count for
          much, whether there's a secure relationship,
          a bonded relationship, a reliant relationship,
          whether this is someone that the [two]-year-
          old would have looked to for a comfort, the
          facts just aren't there to be able to know
          those things. And that's where I go back to
          the standard for summary judgment.        There
          actually has to be facts. It's one thing to
          give favorable inferences which . . . I have
          to do for summary judgment, but here . . .
          what was going on in a [two]-year-olds mind
          in terms of that relationship, there's just
          no way to be able to get that information and
          it's never going to come out.

     The motion judge also distinguished the issue here from the

Court's holding in Dunphy v. Gregor, 136 N.J. 99 (1994), where the




applies to a third party's claim to joint custody and visitation
of her former domestic partner's biological children, with whom
she lived in a familial setting and in respect of whom she claims
to have functioned as a psychological parent." Id. at 205. The
legal and public policy considerations that led the Court in V.C.
to recognize the concept of "psychological parent" in the context
of a child custody dispute in the Family Part, are not dispositive
to a determination of whether Benning falls within the class of
litigants who may bring a Portee claim.

                               10                           A-4754-16T4
Court allowed a NIED claim brought by the fiancée of a decedent

to proceed to a jury trial.       The judge explained:

           Ms. Moreland and Ms. Benning weren't even
           engaged at the time. I understand the laws
           regarding same sex relationships had changed
           over time but there was a statute that did
           allow for that in New Jersey and whether they
           could have availed themselves of any such laws
           in other jurisdictions hasn't been addressed
           in any of the papers.

      In dismissing Benning's NIED claim, the motion judge found

that "Ms. Benning was part of a very small child's life for 17

months at most . . . . There's no evidence that there was any

permanent bond or that the relationship that she shared with the

decedent was one that was deep, lasting, and genuinely intimate."

                                      III

      On appeal, plaintiffs argue that Benning is entitled to bring

a bystander NIED claim because her relationship with I'Maya was

intimate and familial.        They argue the motion judge erroneously

focused his analysis on the relationship between Benning and

Moreland and the absence of evidence showing their relationship

was formally sanctioned by the legal avenues available to them at

the   time,   such   as   a   civil   union   or   domestic   partnership.

Plaintiffs also argue the judge misapplied the standards for

deciding a motion for summary judgment by drawing an adverse

inference against them for failing to seek formal legal recognition


                                      11                           A-4754-16T4
of the relationship between Benning and the child.            Plaintiffs

argue that whether the relationship between I'Maya and Benning

qualifies for recovery under Portee is a question of fact for the

jury.

     Defendants argue that summary judgment is the appropriate way

to proceed in this case.      They maintain that the question of

whether Benning's relationship with the child entitles her to

bring a NIED claim is a question of law that was appropriately

decided by the motion judge.       Defendants argue Benning has not

presented sufficient competent evidence to satisfy all of the

elements of the tort of NIED.

     Amicus Garden State Equality is a civil rights organization

dedicated to protecting and advancing the legal rights of this

State's LGBTQ community.    It argues that the Law Division erred

in dismissing Benning's NIED claim as a matter of law because

there are genuine issues of material fact regarding the nature of

I'Maya and Benning's relationship.      Garden State Equality further

argues that the trial court erred by considering the marital status

of Moreland and Benning in determining the relationship between

I'Maya   and   Benning.   Amicus   argues   this   approach   ultimately

discriminates against same-sex couples by holding them to a higher

standard than the standard applied to heterosexual couples.



                                   12                            A-4754-16T4
     Amicus New Jersey State Bar Association (NJSBA) argues that

the type of intimate familial relationship required to bring a

Portee claim is not strictly limited to plaintiff's marital status

to the child's biological parent; or whether she had a legally

recognized custodial status to the decedent; or even whether she

was biologically related to the decedent.   The NJSBA argues that

the quality of Benning and I'Maya's relationship is the relevant

issue here.   This Amicus argues that is purely a factual issue

that must be considered and decided by a jury.

     The sole legal question the Supreme Court ordered us to

address is whether Benning falls within the class of litigants

entitled to bring a civil action against defendants under the tort

of negligent infliction of emotional distress.      We begin our

analysis by describing the material facts in Portee, the seminal

case that first recognized the legal viability of this cause of

action in our State, and which also involved the accidental death

of a child. In Portee, a seven-year old boy became trapped between

an elevator's outer doors and the wall of the elevator shaft.

Portee, 84 N.J. at 91.   His mother watched helplessly as her son

struggled for over four hours as rescue workers made repeated, but

ultimately unsuccessful attempts to save the child's life.     Ibid.

The mother witnessed her son's agonizing death.   Ibid.



                               13                            A-4754-16T4
     Witnessing the horrific demise of her child caused the mother

severe emotional pain and serious psychological trauma.              Ibid.

She became "severely depressed and self-destructive."           Ibid.   She

was hospitalized after an attempted suicide and was treated for

self-inflicted   injuries.       Ibid.     She   thereafter     "received

extensive counseling and psychotherapy to help overcome the mental

and emotional problems caused by her son's death."        Id. at 92.      As

the guardian of our State's common law, the Supreme Court fashioned

the tort of negligent infliction of emotional distress to permit

a limited class of litigants the right to seek a measure of

compensation for the residual emotional and psychic trauma caused

by the negligence of the tortfeasor. As Justice Pashman explained:

          The cause of action we approve today for the
          negligent infliction of emotional distress
          requires proof of the following 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. We find that a
          defendant's duty of reasonable care to avoid
          physical harm to others extends to the
          avoidance of this type of mental and emotional
          harm.

          [Portee, 84 N.J. at 101 (emphasis added).]

     Justice   Pashman   ended   his   description   of   the   essential

elements of this tort by quoting the words of Chief Justice


                                  14                               A-4754-16T4
Weintraub: "Whether a duty exists is ultimately a question of

fairness.   The inquiry involves a weighing of the relationship of

the parties, the nature of the risk, and the public interest in

the proposed solution."   Ibid.   (quoting Goldberg v. Housing Auth.

of Newark, 38 N.J. 578, 583 (1962)).               Our Supreme Court has

revisited its holding in Portee to expand the class of litigants

entitled to relief when necessary to serve its underlying public

policy, Dunphy v. Gregor, 136 N.J. 99 (1994) (permitting the

fiancée of the decedent to bring a claim), and to clarify and

narrow its scope when warranted, McDougall v. Lamm, 211 N.J. 203

(2012) (denying relief to a litigant who witnessed the traumatic

death of a pet).

     Our focus here is exclusively on the second element of the

four elements of proof required to bring a negligent infliction

of emotional distress cause of action, to wit: whether Benning

presented   sufficient    evidence     that   an     "intimate,     familial

relationship" existed between her and two-year-old I'Maya at the

time the child tragically perished in this accident.              Portee, 84

N.J. at 101.   Because the Law Division decided this issue as a

matter of law, our review is de novo.              We do not accord any

deference to the motion judge's legal conclusions.            Nicholas v.

Mynster, 213 N.J. 463, 478 (2013).



                                  15                                 A-4754-16T4
     What constitutes a "familial relationship" is perforce a

fact-sensitive    analysis,     driven      by        evolving   social    and   moral

forces.    No one can reasonably question that the social and legal

concept of "family" has significantly evolved since the Court

decided Portee in 1980.       Thirty-eight years ago, gay, lesbian, and

transgender people were socially shunned and legally unprotected

against    invidious    discrimination           in    employment,    housing,     and

places of public accommodation under our State's Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.3                        The notion of

same-sex   couples     and   their   children          constituting    a   "familial

relationship" worthy of legal recognition was considered by a

significant number of our fellow citizens as socially and morally

repugnant and legally absurd.

     The    overwhelming      number        of        our   fellow    citizens     now

unequivocally reject this shameful, morally untenable bigotry; our

laws,   both   legislatively     and   through          judicial     decisions,    now

recognize and protect the rights of LGBTQ people to equal dignity

and treatment under law.        Throughout our country, United States

v. Windsor, 570 U.S. 744 (2013), and in our State, Garden State

Equal. v. Dow, 434 N.J. Super. 163 (App. Div.), certif. granted,


3
  The Legislature did not amend the Law Against Discrimination to
prohibit invidious discrimination in employment, housing, and
places of public accommodation on the basis of "sexual orientation"
until 1992. See N.J.S.A. 10:5-4; A. 519 (1991); S. 3758 (1992).

                                       16                                    A-4754-16T4
216 N.J. 1, stay denied, 216 N.J. 314 (2013), same-sex couples may

legally marry and have children.

       Following this path of social and legal progress under law,

we now turn our attention to Dunphy, a case through which our

Supreme Court clarified the second element of a Portee claim.              The

plaintiff and the decedent in Dunphy were a heterosexual couple

who cohabitated and were engaged to be married.           Dunphy, 136 N.J.

at 102.    They planned to marry four years after their engagement.

Ibid.     Two years into their engagement, the decedent was killed

on Route 80 while helping a friend change a tire.               Ibid.      The

plaintiff witnessed the vehicle strike her fiancée.             Ibid.      She

was the first person to reach his body, and attempted to comfort

him.    Ibid.    He died the next day in the hospital.        Ibid.

       The case came before the Supreme Court based on a dissent in

the Appellate Division opinion.          Dunphy v. Gregor, 261 N.J. Super.

110, 124 (App. Div. 1992).         Our dissenting colleague "interpreted

the    Portee   requirement   of    a    'familial   relationship'   as    one

restricted to marriage or blood ties."           Dunphy, 136 N.J. at 104

(citing Dunphy, 261 N.J. Super. at 125).              However, the Supreme

Court endorsed the views expressed by our colleague Judge Kestin,

whom, writing for the majority on the panel, held:

            Irrespective of the label placed upon a
            particular relationship, it is a jury question
            whether the inter-personal bonds upon which

                                        17                            A-4754-16T4
            the cause of action is based actually exist.
            A defendant should always have the right, even
            in the case of a parent and child or a husband
            and wife, to test the operative facts upon
            which the claim is based irrespective of the
            de jure relationship.

            [Dunphy, 136 N.J. at 112 (quoting Dunphy, 261
            N.J. Super. at 122).]

     The    Court     expanded   upon     Judge   Kestin's   reasoning    by

emphasizing that "this critical determination must be guided as

much as possible by a standard that focuses on those factors that

identify and define the intimacy and familial nature of such a

relationship."      Ibid.    The Court distilled this "standard" to the

following    basic,    yet   critically    important   factors:   (1)    the

duration of the relationship; (2) the degree of mutual dependence;

(3) the extent of common contributions to a life together; (4) the

extent and quality of shared experience; and (5) whether the

plaintiff and the decedent (or seriously injured person) "were

members of the same household, their emotional reliance on each

other, the particulars of their day to day relationship, and the

manner in which they related to each other in attending to life's

mundane requirements." Ibid.       (quoting Dunphy, 261 N.J. Super. at

123).

     Critical to our analysis here, however, is not only the Dunphy

Court's unambiguous rejection of any attempt to restrict the class



                                    18                             A-4754-16T4
of claimants to married persons, but also the articulation of the

public policy underpinning the tort itself:

           The basis for that protection is the existence
           of an intimate familial relationship with the
           victim of the [tortfeasor's] negligence.

           An intimate familial relationship that is
           stable, enduring, substantial, and mutually
           supportive is one that is cemented by strong
           emotional bonds and provides a deep and
           pervasive   emotional   security.      We   are
           satisfied that persons who enjoy such an
           intimate   familial    relationship    have   a
           cognizable interest in the continued mutual
           emotional well-being derived from their
           relationship.   When that emotional security
           is devastated because one witnesses, in close
           and direct proximity, an accident resulting
           in the wrongful death or grievous bodily
           injury of a person with whom one shares an
           intimate     familial     relationship,     the
           infliction of that severe emotional injury may
           be the basis of recovery          against the
           wrongdoer.

           [Id. at 115.]

     Against this analytical backdrop, we now apply the standard

codified   in   Rule   4:46-2(c),   and   hold   that   Benning   presented

sufficient evidence from which a jury could find that she and two-

year-old I'Maya had an intimate familial relationship at the time

of the child's tragic death.        Viewed in the light most favorable

to the non-moving party, the evidence shows that at the time of

the accident, Benning and her now wife I'Asia Moreland, had

cohabitated     for    at   least   seventeen     months,    sharing     the


                                    19                              A-4754-16T4
responsibility for the care of three young children, one of whom

was I'Maya.     A rational jury can find that Benning was a de facto

mother to this child, and felt her loss as deeply as any parent

facing   that   horrific   event.        Benning's   deposition   testimony

supports this finding.

     The duration of Benning's relationship with I'Maya indicates

she had been part of this two-year-old girl's life since she was

an infant.      Dr. Cooke's psychological evaluation report of the

family also supports the strong familial bond that existed before

the accident between the children and these two "moms."            Although

we are confident that this record is sufficient to withstand

summary judgment, both the court and the litigants would have been

better served if Benning's counsel would had augmented the record

with certifications from individuals who knew and saw these two

women interact with these children on a day-to-day basis.             These

certifications may have assisted the motion judge in his decision.

     Finally, we would be remiss if we did not comment on Benning's

counsel's decision to include, as part of the appellate record, a

photograph of the child's nude body laid out on the autopsy table.

Given the limited scope of this appeal, we do not understand what

possible relevance including this photograph has to the central

issue in this case.        Its inclusion served absolutely no legal

purpose and was grossly insensitive to all involved.

                                    20                              A-4754-16T4
Reversed and remanded.   We do not retain jurisdiction.




                          21                          A-4754-16T4
