New Jersey Injury Lawyer Blog

The purpose of this blog is to follow up on information concerning various potential causes of action, which were discussed in our May 4, 2010 blog. In that blog, we discussed potential causes of action by one parent against another parent and by children against a parent for intentional or negligent infliction of emotional distress due to parental actions. Those possibilities were discussed with regard to a lawsuit that was filed against Miami Heat star Dwayne Wade by his wife during the pendency of a divorce action.

Interestingly, a day before our blog was published, the Superior Court of New Jersey, Appellate Division in Segal v. Lynch discussed issues similar in nature to the Wade case as well as the issues discussed in our blog. In Segal, the father, who was a non-custodial parent of two minor children, who brought an action on behalf of his children against their mother for the negligent and intentional infliction of emotional distress. Unlike the Wade case, however, the plaintiff here alleged that the basis of the infliction of emotion distress were the actions undertaken by the mother to alienate the children from the father. For instance, the plaintiff father alleged that the mother blocked all of his emails to the children, and forbade the children from emailing or otherwise contacting their father for a period greater than three months. Additionally, the father alleged that the mother told the children "false and spiteful things" about him. The father claimed that once visitation continued after this three-month period, it was clear to him that the mother's actions had a "negative impact" on his relationship with the children. In support of this claim, the father pointed to a court appointed psychologist's opinion, which determined that the mother did engage in "alienating behavior with the children."

As suspected in our prior blog, the father's claim for alienation of affections was similarly under New Jersey's Heart Balm Statute (N.J.S.A. 2A:23-1). The court then went on to discuss the proofs required to support claims of negligent and intentional emotional distress. In this regard, the court found no barrier of one parent asserting such a cause of action against another parent. However, the court's analysis went further in dealing with such a cause of action where the "best interest of the children" was the pivotal issue.

In this case of first impression, the Appellate Division cited the court's parens patriae responsibility, which requires the court to "care for and protect those unable to do so for themselves such as children." The court then balanced the "fundamental principles" of a child's best interest against the rights of civil litigants to obtain compensation for their injuries from a tortfeasor. The court acknowledged that the acknowledgment of either interest would cause detriment to the other.

In noting that the main issues in such a litigation would require the children to provide significant evidence about their relationships with their parents and, in effect, provide testimony "against" one parent or the other, the court concluded that allowing such a case to go forward would be in direct contravention to the best interest of the children. Accordingly, under the facts set forth in the plaintiff's complaint, the court dismissed the cause of action for intentional infliction of emotional distress. In doing so, however, the court did not foreclosure the possibility of one parent pursuing such a cause of action. Instead, the court indicated that such an action would be better suited for the Family Part and that a Family Part Judge would be better served in evaluating and determining the "legal ethnicity" of such a cause of action in the preliminary stages of any such litigation process. It remains to be seen whether or not this matter will make its way to the Supreme Court of New Jersey to further clarify this opinion.

In any event, it would appear that the current State of New Jersey law is not far from what is set forth in our prior blog. However, the Appellate has indicated that such claims must be brought in the Family Part as opposed to the Law Division so that Family Part Judges may "weed out" cases early on in the process. Thus, the cases must handled on a "case-by-case" basis by the Family Part Judge assigned to the matter to determine whether or not a factual basis exists to go forward.

The wife of Miami Heat star Dwayne Wade recently filed a lawsuit on her own behalf and on behalf of her children reportedly claiming that Wade and his girlfriend negligently and intentionally caused them emotional distress. The bases of her claims are that Wade and his girlfriend engaged in inappropriate sexual foreplay contact in the presence of the children and the girlfriend otherwise caused her emotional distress in breaking up her marriage. It is important to note that Wade and his wife are currently embroiled in bitter divorce litigation.
As stated earlier in this blog, such claims of alienation of affections are barred in the State of New Jersey. Thus, the wife's claims against the girlfriend would be barred pursuant to New Jersey law. However, given the nature of the claims asserted by her on behalf of her children, these claims would probably survive.
Specifically, New Jersey law allows for the recovery of monetary damages where it can be shown that either the negligent or intentional actions of another caused emotional distress. These types of claims are generally seen in personal injury type cases where the trauma of the negligent event causes some type of emotional problems. Post Traumatic Stress Disorder (PTSD) is one such diagnosis that is ordinarily seen. However, there is no requirement that the triggering event be traumatic in nature. Any action could cause the basis of the emotional distress. Importantly, however, depending upon the nature of the emotional distress claim, the law may require that such emotional stress be accompanied by physical symptoms such as headaches, gastrointestinal ailments or skin disorders that a physician can link to an emotional diagnosis.
In any event, if it can be proven that Wade's children are suffering from emotional symptoms that can be related to actions undertaken by he or his girlfriend in their presence, the cause of action may stand. However, such a case filed in the state of New Jersey also raises issues of parental immunity. That is, children may not sue their parents for injuries caused by the parents' general negligence arising out of the supervision of the child. For instance, a child may not maintain a cause of action against a parent sustained while playing with matches because the parent was not properly supervising the child. While the Wade case does not necessarily fit neatly into this category, arguments can be made by a skilled attorney that the same legal theories apply.
Regardless of all of the above, it does not appear that any court will have the opportunity to make rulings on this case. In our opinion, the case was clearly filed for purposes of obtaining an advantage in the divorce matter.

A confidential settlement was recently reached in a case where a husband alleged that his wife's physician broke up their 20 year marriage. The husband, an ex airline pilot, in a lawsuit filed in state court in Mississippi, claimed that his wife's orthopedic surgeon seduced her into an extra marital relationship thus causing their 20 year marriage to come to an end. Among other damages, the husband claimed that he suffered negligent and intentional infliction of emotional distress due to the break up of the marriage. The matter reportedly settled at the conclusion of a jury trial but before jury deliberations.

The cause of action that the plaintiff in this case proceeded on existed at common law and was called Alienation of Affection. At common law, one was able to sue and obtain money damages for emotional distress where it could be proven that one's actions caused a break up of a romantic relationship. The cause of action was not limited to situations where an outside party
acted to break up a relationship, it also included a cause of action against a party to that relationship where there was a "breach" of an agreement to marry. Because of the difficulties in proving such a cause of action and public policy considerations, most states have abolished this cause of action. In fact, such a case is only viable in seven states including Mississippi. The New Jersey Legislature abolished this cause of action in New Jersey in 1935 pursuant to N.J.S.A. 2A:23-1 Which states: "The rights of action formerly existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are abolished from and after June 27, 1935." Although a specific cause of action for alienation of affections no longer exists in the state of New Jersey, there may be situations where similar causes of actions may be brought for emotional distress type damages that relate to the break up of relationships such as slander, defamation and libel. For instance, if a third party slanders a party to a relationship resulting in a breakup of that relationship, money damages may be awarded for emotional distress. Of course, this analysis is very fact sensitive and there are specific rules
concerning cases for slander which must be considered.