Court: Same-sex partner can pursue claim in toddler’s death

TRENTON » A woman whose same-sex partner’s biological daughter was killed in a traffic accident can seek damages for emotional distress even though she and the other woman weren’t married or in a civil union at the time, an appeals court ruled on Friday.

The 2-year-old girl was killed in 2009 when a firetruck and a pickup truck collided while she was waiting with her family to cross a street in Trenton to see a “Disney on Ice” show at the facility now known as CURE Insurance Arena.

A lower court had ruled that Valerie Benning couldn’t sue for infliction of emotional distress because she hadn’t shown she had a sufficient familiar bond with the girl, despite the fact she had been romantically involved with the girl’s mother for more than a year before the accident and the girl had called her Mommy.

“Ms. Benning was part of a very small child’s life for 17 months at most,” the lower-court judge wrote. “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.”

Benning appealed and claimed the judge focused erroneously on the lack of a formal civil union or a domestic partnership between the women, which were the only avenues available to them at the time. The two women married in 2014.

In Friday’s ruling, the appeals court cited a 1994 case in which the state Supreme Court ruled the fiancee of a man killed in an accident on Interstate 80 could sue for negligent infliction of emotional distress.

“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,” the appeals court panel wrote.

Benning sued several entities and people. The appeals court’s ruling didn’t say what damages she sought.