Fede v. Clara Maass Hosp.

• Decision Date: 25 September 1987
• Citation: 534 A.2d 443,221 N.J.Super. 329
• Parties: Frank FEDE, Plaintiff, v. CLARA MAASS HOSPITAL, John Doe (Name Being Fictitious) and ABC Corporation (Name Being Fictitious), Defendants.
• Court: New Jersey Superior Court

Page 329

221 N.J.Super. 329

534 A.2d 443

Frank FEDE, Plaintiff, v. CLARA MAASS HOSPITAL, John Doe (Name Being Fictitious) and ABC Corporation (Name Being Fictitious), Defendants.

Superior Court of New Jersey, Law Division,

Essex County.

Decided Sept. 25, 1987.

Robert R. Cary, Newark, for plaintiff (Bross, Strickland, Cary & Grossman, attorneys).

Jeffrey W. Moryan, Roseland, for defendant Clara Maass Medical Center (Connell, Foley & Geiser, attorneys).

VILLANUEVA, J.S.C.

Plaintiff filed suit against defendant hospital, a fictitious individual and a fictitious corporate defendant for injuries sustained when he allegedly fell at the hospital.

Plaintiff moves, 25 months after the accident, to file an amended complaint substituting "as additional defendants," in the place of the individual fictitious defendant, Thomas Lovette, Thomas Rush and Jerry Depiano.

The issues are: (1) when plaintiff's complaint names a certain defendant as well as fictitious defendants and plaintiff then learns from the named defendant the identities of the other alleged tortfeasors four months before the running of the statute of limitations, is plaintiff barred from substituting the other tortfeasors for the fictitious defendants; and (2) whether plaintiff may substitute three named defendants for one fictitious defendant.

The court holds that once plaintiff has properly designated fictitious defendants, in accordance with R. 4:26-4, the subsequent expiration of the statute of limitations has no relevancy. All that is required is that plaintiff's attorney proceed diligently and defendants not be prejudiced. In addition, there is no sound reason or rule that prohibits the substitution of multiple defendants for one fictitious defendant.

The hospital contends that plaintiff's complaint fails in all respects to adequately describe and identify any fictitiously named defendants, as required by R. 4:26-4, and that plaintiff seeks to name three new defendants as party defendants even though the original complaint named only one individual fictitious defendant. Finally, the hospital contends that plaintiff's proposed amended complaint is barred by the statute of limitations, which allegedly expired three weeks before this motion was filed.

Plaintiff has questioned the standing of defendant hospital to oppose this motion since it is not directly affected thereby. It seems ironic that the hospital's attorney objects to the addition of new defendants who might relieve his client of liability in this matter. Normally, of course, a defendant would not raise such an objection. Here, however, defendant hospital and the proposed substituted defendants are insured by the same carrier. Whether they will be represented by the same attorney is irrelevant. Without additional named defendants, the hospital's liability would be limited to $10,000 by virtue of N.J.S.A. 2A:53A-7 et seq. The addition of individually named defendants could increase the carrier's exposure in this case since the individual defendants, if found liable, would not be subject to the statutory limitation of damages. It seems that defense counsel is protecting the interests of his carrier, and sacrificing the interests of Clara Maass, by his objection to the addition of substituted defendants who may relieve the hospital of liability. Normally, this type of motion is made by substituted defendants after the court permits the amendment. However, the court cannot conclude that defendant hospital has no standing; regardless, it prefers to decide this motion on its merits.

This action arises from a fall-down accident that occurred on July 14, 1985 on a stairway at Clara Maass Medical Center (improperly named as Clara Maass Hospital). In the complaint, filed on April 1, 1986, the hospital was the only named defendant, together with fictitious defendants. The complaint alleges that "the Defendants constructed, owned, controlled, designed and maintained a certain stairway at the premises in a negligent manner, causing a dangerous condition to exist thereon."

On February 11, 1987, plaintiff moved to strike the hospital's answer and suppress its defenses as well as to preclude the hospital from raising the defenses set forth in N.J.S.A. 2A:53A-7 and -8 because of its failure to answer interrogatories.

The certification of plaintiff's attorney, in support of that motion, states:

The interrogatories served upon the Defendant sought to elicit names of any individuals who may have been responsible for the maintenance of the stairway. It is extremely important for the Plaintiff to obtain the names of any such individuals who may have been negligent in order to amend his complaint so that plaintiff's damages will not be limited by the provisions of N.J.S.A. 2A:53A-7 and 8. Since the Defendant's failure to answer interrogatories has prevented the Plaintiff from obtaining the information he needs to name the potentially culpable individual defendants and avoid the statutory limitation upon his damages, it is respectfully requested that the Order striking and suppressing the Defendant's answer and defenses specifically preclude the Defendant from raising the limitation on damages set forth in N.J.S.A. 2A:53A-7 and 8.

After the interrogatories were answered and the names of the individuals on duty the day of plaintiff's alleged fall were disclosed to plaintiff's attorney, that motion was withdrawn on February 27, 1987.

After plaintiff's attorney received the answers to interrogatories, he again inquired of defendant's attorney about the maintenance personnel at the hospital. Defendant's attorney responded by letter dated March 18, 1987, stating:

Pursuant to your request for information regarding the maintenance personnel at Clara Maass Medical Center, this is to inform you that no one individual or individuals are assigned to inspecting and maintaining the stairs on an ongoing basis. The stairs are inspected by all maintenance people when they are either walking or working in an area. All grounds crew inspect all stairs when walking or working around the hospital, and all employees inspect the grounds while walking or working in any area. All employees are instructed to report any disrepair so that appropriate action may be taken.

On two or more occasions before and after March 18, 1987, the attorneys for plaintiff and defendant hospital engaged in conversations regarding the proposed additional defendants. Even after receiving the March 18, 1987 letter, plaintiff's attorney requested the hospital's attorney to renew and intensify his effort to identify a specific individual responsible for the stairway. He suggested that the statute of limitations was approaching and, therefore, he needed the information as soon as possible. The hospital's attorney replied that there was no need to be concerned with the statute of limitations because plaintiff had named a fictitious defendant. The hospital's attorney does not dispute these conversations. His response is that he made no representation that he could get any better information and that his comment about a fictitious defendant was not intended "to sandbag" plaintiff's attorney or to induce his reliance thereon.

As a result of the foregoing conversations, plaintiff's attorney took no immediate action, either to compel more specific answers to interrogatories or to amend the complaint. In July 1987, not having received further information from defense counsel, he reviewed his file with the intention of moving to compel more specific answers to interrogatories. It was then that plaintiff's counsel discovered that the statute of limitations had recently expired and, therefore, the present motion was filed immediately.

The certification of plaintiff's attorney in support of this motion states:

Discovery in this matter has revealed that the proposed additional defendants, Thomas Lovette, Thomas Rush and Jerry Depiano, were responsible for maintenance of the premises on or about the date of the accident, July 14, 1985, and may have been negligently responsible for the plaintiff's injuries.

The plaintiff's cause of action would not be changed, nor would a new party be added by the amendment identifying the three individual defendants as the individuals referred to under the fictitious name "John Doe" in the original complaint. The amendment relates back to the commencement of the action, R. 4:9-3; and the date of the filing of the complaint is the crucial time fixing such commencement. R. 4:2-2.

R. 4:9-3 permits relation back of a pleading only when a plaintiff is unable to ascertain the name of a proper party or makes a mistake concerning his identity. See Carrino v. Novotny, 78 N.J. 355, 367, 396 A.2d 561 (1979); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394 (1973); Aruta v. Keller, 134 N.J.Super. 522, 342 A.2d 231 (App.Div.1975); Hernandez v. St. James Hosp., 214 N.J.Super. 538, 543, 520 A.2d 773 (App.Div.1986).

Our Supreme Court in Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394 (1973) reviewed the purposes of statutes of limitations and the effect of dilatoriness when it stated:

Statutes of limitations are designed to stimulate litigants to pursue their causes of action diligently and "to spare the courts from litigation of stale claims." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635 (1945). They penalize dilatoriness and serve as measures of repose. Wood v. Carpenter, 101 U.S. [ (11 Otto) ] 135, 139, 25 L.Ed. 807, 808 (1879). When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he...