Lawlor v. Cloverleaf Memorial Park, Inc.

• Decision Date: 07 May 1968
• Docket Number: No. L--3761,L--3761
• Citation: 101 N.J.Super. 134,243 A.2d 293
• Parties: Edith LAWLOR and C. Lloyd Lawlor, her husband, Plaintiffs, v. CLOVERLEAF MEMORIAL PARK, INC., a corporation, and Cloverleaf Memorial ParkAssociation, Defendants, and Third-Party Plaintiffs, v. Joseph LA PREE and Rahway Hospital, Third-Party Defendants.
• Court: New Jersey Superior Court

Page 134

101 N.J.Super. 134

243 A.2d 293

Edith LAWLOR and C. Lloyd Lawlor, her husband, Plaintiffs, v. CLOVERLEAF MEMORIAL PARK, INC., a corporation, and Cloverleaf Memorial ParkAssociation, Defendants, and Third-Party Plaintiffs, v. Joseph LA PREE and Rahway Hospital, Third-Party Defendants.

No. L--3761.

Superior Court of New Jersey Law Division.

May 7, 1968.

Rehearing Denied June 7, 1968.

Kenneth J. McGuire, Newark, for plaintiffs (Stein, Bliablias & Goldman, Newark, attorneys).

Stephen J. Foley, Asbury Park, for defendant Cloverleaf Memorial Park Assn. and Cloverleaf Memorial Park, Inc. (Campbell, Mangini, Foley & Lee, Asbury Park, attorneys).

H. Curtis Meanor, Jersey City, for third-party defednant, Joseph La Pree (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Daniel K. Van Dorn, Newark, for third-party defendant Rahway Hospital (Mead, Gleason, Hansen & Pantages, Newark, attorneys).

HALPERN, A.J.S.C.

These are companion motions by the third-party defendants for summary judgment dismissing plaintiffs' claims as barred by the statute of limitations.

The undisputed facts are that on September 6, 1964 plaintiff Edith Lawlor allegedly fell and suffered personal injuries while visiting a gravesite at Cloverleaf Memorial Park. She was admitted that day as a patient to Rahway Hospital (hospital) and was treated there by Dr. Joseph La Pree (doctor). She was discharged from the hospital on October 17, 1964. On February 16, 1965 plaintiffs sued Cloverleaf Memorial Park, Inc. and Cloverleaf Memorial Park Association (cemetery), seeking damages for the injuries sustained. Answers were filed and the case was pretried and placed on the trial calendar. On the eve of trial the original defendants were granted leave to file a third-party complaint against the hospital and the doctor for indemnification and contribution. On July 5, 1966 the third-party complaint was duly filed. On December 23, 1966 Mrs. Lawlor died.

On January 26, 1968 three motions were heard and disposed of as follows:

1. Defendant Cloverleaf Memorial Park, Inc. was granted summary judgment dismissing the complaint as to it upon the ground that it did not own, operate or maintain, the area at the time decedent had fallen. Leave has not been sought to appeal this ruling to the Appellate Division and for purposes of this opinion it is no longer involved in this case.

2. Defendant Cloverleaf Memorial Park Association (cemetery) was granted summary judgment dismissing the complaint as to it because of the applicability of the Charitable Immunity Act, N.J.S. 2A:53A--7 et seq. Plaintiff was granted leave to appeal this ruling by the Appellate Division of the Superior Court and is now awaiting hearing.

3. Plaintiff was granted leave to amend the complaint to (a) substitute C. Lloyd Lawlor, as executor, in place of Edith Lawlor and to sue the doctor and the hospital directly under the Survival Act for their alleged negligence and malpractice, and (b) to add an additional count against the original defendants and the third-party defendants, under the Wrongful Death Act, for allegedly causing the decedent's death.

The amended complaint was duly filed, as were the answers of the doctor and the hospital denying liability. Both third-party defendants, now direct defendants, pleaded the statute of limitations, and by these motions seek to dismiss the amended complaint.

The issues raised by these motions are:

1. Is plaintiff precluded by the statute of limitations from asserting the survival claims directly against the doctor and the hospital?

2. Is the wrongful death action barred by the statute of limitations when it is brought within two years of decedent's death?

I. SURVIVAL ACTION PURSUANT TO N.J.S. 2A:15--3, N.J.S.A., AGAINST THE DOCTOR AND HOSPITAL

The applicable statute of limitations in a suit for personal injuries, N.J.S. 2A:14--2, N.J.S.A., provides:

'Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued.'

The cause of action is deemed to have accrued, and the two-year period commences to run, when the damage or injury occurs. Rosenau v. New Brunswick, 51 N.J. 130, 238 A.2d 169 (1968). Therefore, Mrs. Lawlor's cause of action for personal injuries, and Mr. Lawlor's claim for consequential damages against the third-party defendants, accrued on September 6, 1964 (date of the admission to the hospital), or at the latest, by October 17, 1964 (date of discharge and last treatment). Rex v. Hutner, 26 N.J. 489, 140 A.2d 753 (1958).

Plaintiffs instituted suit against the original defendant within the two-year statutory period. Based on this fact plaintiff argues that since the doctor and hospital were joined as third-party defendants by the original defendants within the two year statutory period, such action inures to his benefit, and the statute of limitations is not a bar to his direct suit against the doctor and hospital. Plaintiff's argument is bottomed on De Sisto v. City of Linden, 80 N.J.Super. 398, 193 A.2d 870 (Law Div.1963) and R.R. 4:15--3. I respectfully disagree with the De Sisto decision and hold that Mrs. Lawlor's personal injury claim, now a survival action, and Mr. Lawlor's Per quod claim are barred. The holding in De Sisto is contrary to the better authority throughout the country. See 3 Moore's Federal Practice, § 1409; 1A Barron & Holtzoff, § 427, and cases cited therein.

Prior to the enactment of codes of procedure the concepts of procedural joinder and substantive liability were coterminous. 'Only those tort-feasors could be joined as defendants who were jointly and severally liable under the substantive law.' Harper & James, The Law of Torts, § 10.1, p. 695. Today, procedural economy and trial convenience are recognized as desirableand legitimate goals. To this end R.R. 4:31 through 4:33 provide for joinder of actions and parties in one suit. To implement this objective, R.R. 4:14, dealing with third-party practice, was made a part of the overall scheme. The latter rule, however, is a mechanical aid and was never intended to create a new cause of action or new substantive rights for a plaintiff who is not even a party to the application. Schnitzer & Wildstein, New Jersey Rules Service, A IV--347, and cases cited therein; 3 Moore's Federal Practice, § 14.04, p. 501.

As a matter of practice, defendants normally bring in third-party defendants my motion, and notice thereof is only given to the parties then appearing in the cause. The party to be brought in receives no notice of the application. Seldom, if ever, will a plaintiff or any other party object to this motion because it results in bringing in a new party who may be held liable for all or part of plaintiff's possible recovery. While the court has the power to deny the motion it will do so only if it is a late application which will adversely affect the trial calendar. The merits of the third-party claim are seldom considered by the court at that time. The motion merely provides the procedural means to implead proper parties to preserve and protect substantive rights, E.g., indemnity, contribution, subrogation, etc. It further permits a defendant (here, the cemetery) to join any claim against a third party (the doctor and the hospital) arising out of the same transaction or series of transactions, so long as the third party is liable to the cemetery for all or part of plaintiff's claim.

I turn to the problem of whether the third-party defendants were properly joined by the original defendants as joint tortfeasors within the meaning of N.J.S. 2A:53A--1, N.J.S.A., for the purpose of seeking contribution on plaintiffs' claims. Unless parties act in concert or contribute concurrently to the same wrong, they are not joint tortfeasors. Their wrongs, if any, are independent and successive rather than joint. Daily v. Somberg, 28 N.J. 372, 146 A.2d 676 (1958); Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, 559 (Ct.App.1962); Knutsen v. Brown, 93 N.J.Super. 522, 532, 226 A.2d 460 (Law Div.1966), affirmed 96 N.J.Super. 229, 232 A.2d 833 (App.Div.1967). These cited cases all dealt with malpractice suits following an original injury arising from a disconnected tortious act.

The cemetery may be liable for the aggravation of the injury caused by the alleged malpractice; however, such liability is not the result of any concept of joint wrongs but of the legal principle that the original wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligence of others. Restatement Torts 2d, §§ 457, 458; Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). On the other hand, the doctor and the hospital would not be liable for the original injury resulting from the fall. Daily v. Somberg, supra. Thus, the plaintiff has two separate and distinct causes of action--one against the cemetery for negligent maintenance, and the other against the doctor or the hospital or both for alleged malpractice.

Although legal rights and obligations may exist between the cemetery, the doctor and the hospital, by way of indemnity, since they are not joint tortfeasors the doctor and the hospital were improperly impleaded by the original defendants under N.J.S. 2A:53A--1, N.J.S.A.

Plaintiff further argues that under R.R. 4:15--3 his amended complaint relates back to the date of the original filing of the complaint and, therefore, he is within the two-year statutory period. Again, I do not agree. Allowing a plaintiff, who sued within the statutory time, to amend or supplement his complaint as to the original defendant properly relates back to the date of filing the original complaint--but where plaintiff attempts to add a third-party defendant to his original suit he cannot evade the bar of the statute of limitations. Tackling v. Chrysler Corp., 77...