                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0186-13T1

RICHARD LITWIN, Administrator
Ad Prosequendum for the ESTATE
OF LOUIS M. ACERRA, and
RICHARD LITWIN, Individually,          APPROVED FOR PUBLICATION

      Plaintiff-Appellant,                    June 11, 2014

v.                                        APPELLATE DIVISION


WHIRLPOOL CORPORATION, as
successor in interest to
MAYTAG CORPORATION,

      Defendants,

and

A&E FACTORY SERVICES, LLC;
MICHAEL S. CECERO, individually,
and as agents, servants,
and/or employees of A&E
FACTORY SERVICES, LLC,

     Defendants-Respondents.
_________________________________

          Argued January 8, 2014 - Decided June 11, 2014

          Before    Judges   Sapp-Peterson,    Lihotz    and
          Maven.

          On appeal from an Interlocutory Order of the
          Superior Court of New Jersey, Law Division,
          Monmouth County, Docket No. L-4479-09.

          Jacqueline DeCarlo argued the cause for
          appellant (Hobbie, Corrigan & Bertucio,
          P.C., attorneys; Ms. DeCarlo, of counsel and
          on the briefs).
              Paul E. White (Sugarman, Rogers, Barshak &
              Cohen, P.C.) of the Massachusetts bar,
              admitted pro hac vice, and Martin L.
              Sisselman argued the cause for respondents
              (Sisselman & Schwartz, LLP, and Mr. White,
              attorneys;   Andrew   R.   Levin   (Sugarman,
              Rogers, Barshak & Cohen, P.C.) of the
              Massachusetts bar, admitted pro hac vice,
              Mr. White, and Mr. Sisselman, on the brief).

       The opinion of the court was delivered by

SAPP-PETERSON, P.J.A.D.

       We consider this interlocutory appeal following the Supreme

Court's reversal of our denial of interlocutory review of the

trial       court     order     granting           partial    summary      judgment      to

defendants      A&E    Factory        Services,       LLC    (A&E)   and     Michael     S.

Cecero,      who     repaired        plaintiff        Richard     Litwin's    Whirlpool

dishwasher.         The motion judge granted summary judgment, finding

plaintiff failed to satisfy the observation prong necessary to

assert a Portee1 claim and also failed to establish a prima facie

case of severe emotional distress.                   We now reverse.

                                              I.

       On    June    12,   2009,       around       midnight,     plaintiff       and   his

stepson, Louis Acerra, were at home and asleep when they were

awakened by the sound of a smoke detector alerting them to a

fire    downstairs.           They    sought       refuge    in   plaintiff's      bedroom

after    observing      smoke        rising    from    downstairs.         Once    in   the

1
    Portee v. Jaffee, 84 N.J. 88 (1980).



                                               2                                  A-0186-13T1
bedroom, they covered the door with clothing to prevent the

smoke from seeping into the bedroom.                Acerra subsequently ran

out into the hallway, which was filled with smoke and flames.

Plaintiff called out to Acerra, but when he did not respond,

plaintiff believed he had escaped and proceeded to climb out the

second floor window and hung onto the window ledge until rescue

personnel arrived and brought a ladder to assist him.

      Once   on    the     ground   and    realizing      that    Acerra    had   not

escaped, he attempted to re-enter the house, but firefighters

restrained     him.         Shortly       thereafter,     he     observed    rescue

personnel bringing his son out of the house.                     Acerra's body was

still burning, smoldering and smoking, with skin melting from

his bones.         Although Acerra survived the fire, he                   sustained

third-degree burns to nearly 56% of his body.                    Plaintiff was his

primary caretaker for the next three years, while he underwent

multiple skin grafting and related procedures.                     Acerra died on

January 17, 2012, after undergoing another procedure related to

his injuries.

      Plaintiff commenced treatment with psychologists Dr. Robbin

J. Kay, in June 2010, and with Dr. Theodore J. Batlas in March

2011.     Both doctors diagnosed plaintiff as suffering from post-

traumatic stress disorder (PTSD) stemming from the fire.                          Dr.

Kay     reported    that     plaintiff's       symptoms     were    triggered      by




                                           3                                A-0186-13T1
smelling fire or smoke and he experienced flashbacks of the

fire.     Dr. Batlas reported that plaintiff was an "eyewitness to

his son's catastrophic burn injuries and was essentially the

only person involved in caretaking for his son when he returned

[home] . . . to rehabilitate following his hospitalization."                              He

also opined that plaintiff continued to "suffer from flashbacks

related to the fire and subsequent related events . . . [and]

suffer[s] tremendous guilt at not being able to have done more

to rescue/save his son both in the fire and from his subsequent

death."

       Prior     to   the   fire,     the       United     States      Product      Safety

Commission announced a recall campaign to address a potential

fire    hazard    involving    several      models        of    Maytag       and   Jenn-Air

dishwashing       units,    including           the      model     plaintiff        owned.

Whirlpool acknowledged at least 135 reports of fires directly

related to the recall campaign.                   Plaintiff received a letter

regarding a recall on his dishwasher; he called the 800 number

on the letter and was informed a repair kit would be sent to

him.      Plaintiff refused the repair kit and requested that a

repair technician come to his home.                      In July 2007, Whirlpool

sent Cecero, an A&E employee, to service the dishwasher.

       Following      the     fire,     plaintiff              filed     a     complaint,

individually and on behalf of Acerra for injuries they sustained




                                            4                                      A-0186-13T1
as a result of defendants' alleged negligence.                     Among the claims

asserted against defendants was a bystander or Portee claim.

Defendants    filed    a    motion     seeking       partial       summary    judgment

dismissing    plaintiff's        Portee          claim.          Whirlpool     settled

plaintiff's claims prior to the return date of the motion and

withdrew its motion.          A&E and Cecero, however, proceeded with

the motion.

    In    seeking     summary    judgment,          defendants       urged    that     an

essential element of a Portee claim requires the party asserting

the claim to have directly witnessed the injury-producing event.

Additionally, defendants contended the claimed severe emotional

distress must be causally related to direct observation of the

injury-producing      event    and,    in       addition,    plaintiff       failed   to

demonstrate    that    he     sustained          extreme    or     severe    emotional

distress attributed solely to witnessing Acerra being injured.

    In    granting     summary      judgment        to     defendants,      the   trial

court, in a written opinion, rejected plaintiff's argument that

a Portee claim does not require direct observation when the

party   asserting     the   claim     has       witnessed    the    injury-producing

event through sensory perception.                 The court stated plaintiff's

argument was an unwarranted expansion of the "narrow holding in

Portee that direct sensory and contemporaneous observation be

occasioned    by    immediate       perception."            The     court    concluded




                                            5                                  A-0186-13T1
plaintiff "did not observe the serious injury to his stepson

because he did not see his stepson until after the injuries had

already occurred and thus fail[ed] to satisfy the observational

prong under Portee."          The court also found plaintiff failed to

establish     that     his   claimed       severe   emotional    distress       was    "a

direct result of having seen the injuries to his stepson take

place."

     Plaintiff       moved      for    reconsideration,         which     the      court

denied.    The present appeal followed.

     On appeal plaintiff urges the trial court failed to abide

by   the      fundamental       principles       governing      summary     judgment

motions, that is, to accord all favorable inferences to him, and

had it done so, the court would have found he established "the

prima   facie    requirements         of   the   observation     prong    of     Portee

[and]   the    prima    facie    requirements       of   the    'severe    emotional

distress' prong of Portee."            We agree.

                                           II.

     A trial court must grant a summary judgment motion if "the

pleadings,       depositions,          answers      to    interrogatories             and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a

matter of law."         R. 4:46–2(c); see also Brill v. Guardian Life




                                             6                                  A-0186-13T1
Ins. Co. of Am., 142 N.J. 520, 529–30 (1995).                "An issue of fact

is genuine only if, considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion,

together with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the issue to the

trier of fact."       R. 4:46–2(c).     If the evidence submitted on the

motion "'is so one-sided that one party must prevail as a matter

of law,' the trial court should not hesitate to grant summary

judgment."     Brill, supra, 142 N.J. at 540 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512,

91 L. Ed. 2d 202, 214 (1986)).

       When a party appeals from a trial court order granting or

denying a summary judgment motion, we "'employ the same standard

[of review] that governs the trial court.'"               Henry v. N.J. Dep't

of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v.

DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)).                    However,

we review legal conclusions de novo.                Henry, supra, 204 N.J. at

330.

                                      III.

       In Portee, supra, 84 N.J. at 101, our Court recognized a

cause   of   action   for   damages    to    a   bystander      as   a   result   of

witnessing    an   injury-producing         event    to   one    with    whom     the

bystander has an intimate or familial relationship.                      Ibid.     In




                                       7                                   A-0186-13T1
order to assert a Portee claim, a plaintiff must establish four

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.

            [Ibid.]

The third and fourth elements are implicated in this appeal.

A.   Observation

     "The viability of Portee claims depends only on whether the

plaintiff has had a sensory, contemporaneous perception of an

injury that was sustained by a spouse or close family member,

irrespective of the distance from which that perception arises."

Jablonowska v. Suther, 195 N.J. 91, 107 (2008) (noting that a

Portee   claim    "is   not   dependent     on   the   aggrieved   person's

presence within the zone of danger created by the defendant's

negligent conduct").      Where a plaintiff "observe[s] the kind of

result that is associated with the aftermath of an accident,

such as bleeding, traumatic injury, and cries of pain," the

observation prong is satisfied.          Frame v. Kothari, 115 N.J. 638,

643 (1989).      Satisfaction of the observation prong is also found




                                     8                             A-0186-13T1
where the plaintiff witnesses "the victim when the injury is

inflicted or immediately thereafter."                       Id. at 644.             However,

"[m]erely being on the scene may not be enough.                          The injury must

be one that is susceptible to immediate sensory perception, and

the    plaintiff     must      witness     the       victim     when     the      injury    is

inflicted or immediately thereafter."                   Ibid.

       Here, the facts, when viewed most favorably to plaintiff,

establish that plaintiff was inside his home when he and Acerra

were awakened by the alarm and observed the smoke rising up to

the second floor.            Plaintiff felt the warmth of the doorknob as

he    attempted    to    look    for     Acerra,      who   had      left    the   bedroom.

Fearing    what    was       happening    on    the     other     side      of    the    door,

because the doorknob of his bedroom felt warm, he did not leave

the bedroom.       Once outside, however, plaintiff realized Acerra

had not escaped and knew he was still inside the burning home.

Plaintiff observed his son's body still smoldering with peeling

skin, while rescuers brought him outside.                         Moreover, plaintiff

presented    videotaped         testimony       from    Acerra's       physicians,         who

described,    in   graphic       detail,       the     catastrophic         burn   injuries

they     observed,       not     contemporaneously              to     the       fire,     but

thereafter.       A jury could reasonably infer from their testimony

the    magnitude        of    emotional        distress       plaintiff          experienced

because he had been in the fire, was an eyewitness to his son




                                            9                                       A-0186-13T1
still in the burning house, and observed Acerra's smoldering

body being removed from the burning house.

      We are convinced that under the Brill standard, plaintiff

observed    the    kind     of    result         that       is   associated     with    the

aftermath of traumatic injury and that it was not necessary for

him   to   have   been     inside    his     home       observing       his    son's   body

burning in order to satisfy the observation prong supporting a

Portee claim.        Further, as Judge Louis F. Locascio reasoned in

Ortiz v. John D. Pittenger, Builder, Inc.:

            [F]ire cases are unique because "the flames
            are likely to hide the victims from the view
            of those present at the scene. To disallow
            recovery to plaintiffs in such cases merely
            because they did not actually view the
            injury being inflicted on the bodies of the
            victims defies reason and common sense."

            [382 N.J. Super. 552, 561 (Law Div. 2004)
            (quoting Stump v. Ashland, Inc., 499 S.E.2d
            41, 49 (1997)) (emphasis added in the
            original).]

      We find the motion judge's conclusion that the facts here

were most analogous to the facts in Vasilik v. Federbush, 327

N.J. Super. 6 (App Div. 1999), misplaced.                           In Vasilik we found

the plaintiff father did not meet the observation prong under

Portee     because    he     arrived        at     the       scene     after     his    son

deliberately      jumped     in     front    of         a    dump    truck,    committing

suicide.     Id. at 9.       We concluded the plaintiff's observations

of the rescue personnel attempting to resuscitate his son did



                                            10                                    A-0186-13T1
not meet the observation prong.                Id. at 13.         In the present

matter, however, plaintiff did not arrive at the scene after the

fact.     Rather, plaintiff was inside the home as it was being

engulfed in flames; he knew that his son was still inside and

witnessed his son's smoldering body being carried out of the

home.

       Plaintiff's      experience      is     similar       to   the      plaintiff

grandmother in Ortiz, supra, whose granddaughter slipped from

her grasp as they were attempting to escape their home during a

fire.     382    N.J.   Super.    at    555.     The     windows     in    the   home

exploded, startling the grandchild, who then separated from her

grandmother's     grasp,     disappearing      into    the   smoke    and    flames.

Ibid.    Citing Wilks v. Hom, 3 Cal. Rptr. 2d 803, 807 (Ct. App.

1992), Judge Locascio interpreted the Portee observation prong

to include being "'sensorially aware' of a family member who is

within a burning building."            Id. at 563.     He reasoned:         "Just as

the plaintiff in Portee watched the elevator crush her son,

Ortiz and Cruz watched the house engulf Jasmine in flames.                         The

fire    was     'the    injury-producing        event,'       which       plaintiffs

observed."      Ibid.       Likewise, here, the fire was the "injury-

producing event," which plaintiff observed both while in the

home    and   after    he   escaped.      Consequently,       the    motion      judge

erred, as a matter of law, in concluding plaintiff failed to




                                         11                                 A-0186-13T1
establish   a     prima   facie        Portee     claim       because     he   failed     to

actually observe Acerra burning inside of the home.

B.   Severe Emotional Distress

     Turning      to   the    fourth        element      of   a    Portee      claim,    the

resulting       severe       emotional        distress,           the    motion        judge

acknowledged that post-traumatic stress "qualifies as emotional

distress    for    purposes       of    a     Portee      claim,"       but    found     the

"singular   reference        in   the       third   report        of    Litwin's    expert

causally    relating      Litwin's       PTSD       to    the     injuries      plaintiff

incurred by his stepson [wa]s not supported by the evidence in

the record."      The judge explained:

            Litwin relies on this statement as evidence
            that his emotional distress did arise from
            the injuries to his stepson.      However, as
            [d]efendants correctly note, the portion of
            that diagnosis relating to "the effects of
            dealing with his son's trauma and recovery"
            is immaterial to the herein motion because
            those damages are not compensable under
            Portee.       Additionally,   this    singular
            reference in the third report of Litwin's
            expert causally relating Litwin's PTSD with
            the injuries incurred by his stepson is not
            supported by the evidence in the record.
            The record in this matter is rife with
            examples of Litwin's current psychological
            trauma related to his own experience in the
            fire as well as the trauma related to caring
            for and dealing with the death of his
            stepson.    The record also indicates a
            substantial amount of pre-fire emotional
            distress suffered by Litwin. However, there
            is no emotional distress causally linked
            directly to witnessing the injury to his
            stepson   and    Dr.   Batlas's    unsupported



                                             12                                    A-0186-13T1
            assertion is not enough to overcome the
            Portee threshold.   As measured against the
            litany of evidence to the contrary, this
            matter   does  not   present   a  sufficient
            disagreement to require submission to a jury
            but rather it is so one-sided that the
            Defendant must prevail as a matter of law.
            Brill, supra.

    We agree the record contains significant evidence of pre-

existing depression plaintiff suffered unrelated to witnessing

his son being burned in the home.               There is, however, nothing in

the record indicating plaintiff previously suffered from PTSD.

Consequently, viewed in the light most favorable to plaintiff,

PTSD is a new injury.

    It is defendants who raise the issue of plaintiff's pre-

existing mental condition as a bar to recovery.                       Our Court, in

Scafidi   v.    Seiler,      119   N.J.   93,    116,    119    (1990),   a    medical

malpractice      case,    recognized      the     viability      of   a   claim      for

recovery of damages in a negligence action where a plaintiff, in

addition to the injuries claimed to be causally related to the

negligent conduct, purportedly had pre-existing injuries.                            The

Court,    citing     Gaido    v.   Weiser,      115    N.J.    310,   314-15     (1989)

(Handler,      J.,   concurring),     another         malpractice     action,     noted

that Gaido

            involved a claim relating to a patient
            suffering from a preexistent condition—he
            was mentally ill and suicidal—whose death by
            suicide was allegedly caused in part by the
            medical malpractice of the defendant.    The



                                          13                                   A-0186-13T1
            Court, in affirming the judgment of the
            Appellate Division, impliedly acknowledged
            the soundness of the Evers [v. Dolinger, 95
            N.J. 399 (1989)] standard of causation
            [which] can be understood to entail the
            inquiry whether "the increased risk of
            suicide by [the patient] caused by [the
            defendant's] failure to provide adequate
            medical treatment was itself a substantial
            factor that contributed to [the patient's]
            suicide."

            [Ibid.]

     Here, plaintiff did not plead an aggravation of a pre-

existing mental condition in asserting his Portee claim.                               "When

a plaintiff does not plead aggravation of pre-existing injuries,

a   comparative       analysis      is      not     required         to        make     that

demonstration."       Davidson v. Slater, 189 N.J. 166, 170 (2007).

Plaintiff was only required to raise a genuinely disputed issue

of fact that he suffers from severe emotional distress, causally

related to defendants' negligence, in order to submit his Portee

claim to the jury.            See Ibid.          Plaintiff met his burden by

presenting       evidence    he    suffers       from    PTSD       as    a    result       of

witnessing the injury-producing event.

     Defendants,       however,     have        raised    a     genuinely           disputed

factual issue as to whether plaintiff's claimed severe emotional

distress    is    causally    related      to     his    witnessing           the   injury-

producing    event.         They   point    to    pre-existing           mental       health

conditions   and     other    injuries       plaintiff        may    have      separately




                                           14                                       A-0186-13T1
experienced as a result of the fire, which defendants claim are

unrelated to plaintiff witnessing the claimed injury-producing

event.     This disputed issue as to causation is for the fact-

finder to decide.       Ibid.

       In concluding here that there was "no emotional distress

causally    linked     directly      to    witnessing          the    injury     to    his

stepson[,]" the motion judge made a factual determination that

was    inappropriate    in    the    context         of   this       summary    judgment

record.     When the facts are viewed in the light most favorable

to    plaintiff,   Brill,     supra,      142    N.J.     at   540,     plaintiff      has

raised genuinely disputed issues of fact that he suffered severe

emotional    distress    as     a   result      of   witnessing        his     son    being

burned.     This is not one of those unusual situations when no

reasonable fact-finder could conclude that plaintiff's claimed

severe emotional distress injury was caused by witnessing the

injury-producing event.         See Davidson, supra, 189, N.J. at 170.

       Reversed and remanded for further proceedings.                          We do not

retain jurisdiction.




                                          15                                     A-0186-13T1
