Under N.J.S.A. 2A:14-2.1, the time for Angela to file her own lawsuit for her individual claims of emotional distress was also tolled until the Estate instituted suit. See Mansour v. Leviton Mfg. Co., 382 N.J.Super. 594, 604 (App. Div. 2006). However, N.J.S.A. 59:8-8 is silent as to whether Angela's ninety-day deadline to file a tort claims notice for her Portee claim, which arises from her witnessing of the shooting and injury to Micah, was also tolled.

Therefore, while a Portee claim requires the same proofs of liability as the underlying negligence liability action, the bystander liability plaintiff's right to recover is not derivative of the underlying tort claim, but rather a “direct injury to their own independent rights.” Mansour v. Leviton Mfg. Co. , 382 N.J.Super. 594, 603–04, 890 A. 2d 336 (App.Div.2006) ; Goncalvez v. Patuto , 188 N.J.Super. 620, 628, 458 A. 2d 146 (App.Div.1983) (holding that plaintiff's emotional injury claim from the observation of his brother's fatal bicycle-automobile accident is not derivative of the brother's injury and death). In Goncalvez, appellate court Judge Pressler, writing for the court, determined that a minor plaintiff's claim for emotional injury resulting from the observation of the fatal accident that led to his brother's death constituted his own independent claim separate and apart from the original claims brought for wrongful death, survival, and the parents' per quod claim in connection with the survival claim.

Thus, for example, in Ortiz v. John D. Pittenger Builder, Inc., 382 N.J.Super. 552, 563, 889 A.2d 1135 (Law Div. 2004), the Law Division judge recognized that plaintiffs' Portee claims were viable, despite the fact that plaintiffs did not actually see the fire incinerating the victim, because they knew the victim was inside the home being engulfed in the flames, having themselves just escaped the fire. More recently, in Mansour v. Leviton Mfg. Co., Inc., 382 N.J.Super. 594, 890 A.2d 336 (App.Div. 2006), we found that a father who ran into the kitchen upon hearing his infant daughter scream and saw steam coming from her body satisfied the third prong of Portee: It is plain to us that the products [liability] defendants would not be entitled to summary judgment dismissing [plaintiffs] Portee claim on the ground that the father did not witness the accident.

To the extent that the Woodruffs sought to bring a claim for negligent infliction of emotional distress based on a theory of bystander liability, their claim is legally insufficient and properly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), because New Jersey requires that the minor child suffer death or a serious physical injury before a parent can maintain such an action. See Mansour v. Leviton Mfg. Co., Inc., 382 N.J.Super. 594, 890 A.2d 336, 340 (2006). Although Winkelman, 127 S.Ct. at 2004, permits the Woodruffs to represent themselves in an IDEA action on their own behalf, the District Court properly dismissed their IDEA, ADA and Section 504 claims for failure to exhaust administrative remedies.

For example, in Mansour v. Leviton Mfg. Co., in which a father heard his child's screams after defective cooking equipment spilled hot liquid onto the child, the Appellate Division held that Portee's observation requirement can include hearing. 382 N.J.Super. 594, 601-02 (App. Div. 2006) (“It is inconceivable that we would fail to recognize the claim of a blind parent who was in the room and heard the child's screams as she was being burned, simply because the parent could not see the accident.”). Moreover, a bystander liability claim does not require contemporaneous observation of the moment of impact, but simply a witness to the victim's suffering.

These Plaintiffs therefore satisfy the "contemporary observation" element of Portee. See Mansour v. Leviton Mfg. Co., Inc., 890 A.2d 336, 338 (N.J. Sup. Ct. App. Div. 2006) (contemporaneous observation may be auditory); Mercado v. Transport of New Jersey, 422 A.2d 800, 802 ("The requirement of 'direct . . . sensory and contemporaneous observance . . . relates not to witnessing the moment of actual impact, but to witnessing the suffering of the victim."). B. Plaintiffs' Derivative and Survival Claims

When a bystander liability claim is made, and the underlying claim is tolled, the bystander liability claim is tolled as well. Mansour v. Leviton Mfg. Co., 890 A.2d 336, 342 (N.J. Super. Ct. App. Div. 2006). Therefore, Count VI is not barred by the statute of limitations.

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person with this State shall be commenced within two years next after the cause of any such action shall have accrued. N.J.S.A. 2A:14-2(a); see also Mansour v. Leviton Mfg. Co., Inc., 382 N.J.Super. 594, 596 (App. Div. 2006) (stating that a professional malpractice claim was governed by N.J.S.A. 2A:14-2);McGrogan v. Till, 327 N.J.Super. 595 (App. Div. 2000). However, much like NJRICO claims, see supra, the accrual of a cause of action for negligence may be equitably tolled under the discovery rule.

The four-element test for negligent infliction of emotional distress announced in Portee has since become a mainstay of New Jersey tort law. See, e.g., Dunphy v. Gregor, 136 N.J. 99, 102-03, 642 A.2d 372 (1994); Giardina v. Bennett, 111 N.J. 412, 418-19, 545 A.2d 139 (1988); Mansour v. Leviton Mfg. Co., 382 N.J.Super. 594, 603-04, 890 A.2d 336 (App.Div.2006); Greene v. Mem'l Hosp. of Burlington County, 299 N.J.Super. 372, 381-85, 691 A.2d 369 (App.Div.), remanded on other grounds, 151 N.J. 67, 697 A.2d 542 (1997).