Unmarried life partner who witnessed fatal crash can sue for bystander damages

Law Reporter, Aug 2003

Graves v. Estabrook, 818 A.2d 1255 (N.H. 2003).

The New Hampshire Supreme Court held that an unmarried cohabitant who witnessed her partner's death can recover damages for negligent infliction of emotional distress.

Here, Graves was engaged to Ennis and had lived with him for about seven years. One day, Ennis was riding his motorcycle while Graves followed immediately behind him in a car. Another driver, Estabrook, failed to yield at a stop sign and collided with Ennis, causing him fatal injuries. Graves sued Estabrook alleging that she suffered emotional distress as a result of witnessing the death of her fiance. Defendant argued that because plaintiff was not related by blood or marriage to Ennis, she could not recover for negligent infliction of emotional distress. The trial court agreed.

Reversing, the state high court said that the traditional question concerning bystander damages is whether the plaintiff and victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. The case law does not modify the phrase "closely related" with "by blood or marriage," the court noted. The appropriate analysis is not to resort to a dictionary definition of "related" but rather to use a foresee-ability standard.

Past practice has shown that courts are capable of dealing with the realities-not simply the legalities-of relationships to determine that any claimed emotional injury is genuine and deserving of compensation, the court said. For example, inquiry into the quality and intimacy of a relationship is often necessary in loss of consortium cases.

But there is a need to limit the number of persons to whom a negligent defendant owes a duty of care, the court continued. In evaluating the claim of an unmarried cohabitant, the court should consider the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, and the manner in which they related to each other in attending to life's mundane requirements.

In this case, plaintiff alleged in her complaint that she was engaged to Ennis and that they had lived together for seven years immediately preceding the accident. It is reasonable to infer that in the course of their lengthy cohabitation, plaintiff and her fiance enjoyed mutual dependence, common contributions to a life together, and emotional reliance on each other, the court found.

Accordingly, the court remanded.

Plaintiff's Counsel

*Roy A. Duddy, Bedford, N.H.

Charles V. Moser, Bedford, N.H.

Comment: In Alba v. Robb, 43 ATLA L. Rep. 33 (Feb. 2000), a jury awarded a woman emotional distress damages for her female partner's wrongful death. *Jeffrey J. Kroll and *Michael S. Krzak, both of Chicago, Ill., represented plaintiffs.

Documents in Alba v. Robb are available through the Court Document Sets section in die back of this issue, courtesy of Mr. Kroll.