Mears v. Sandoz Pharmaceuticals, Inc.

• Decision Date: 21 May 1997
• Citation: 693 A.2d 558,300 N.J.Super. 622
• Parties: Michael MEARS, Plaintiff-Appellant, v. SANDOZ PHARMACEUTICALS, INC., Rise Steel Corporation, and Beavertown Cast Stone, Defendants, and Walsh Construction Company, a Division of Guy F. Atkinson Company, and Daurio & Russo & Sons Construction Company, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 622

300 N.J.Super. 622

693 A.2d 558

Michael MEARS, Plaintiff-Appellant, v. SANDOZ PHARMACEUTICALS, INC., Rise Steel Corporation, and Beavertown Cast Stone, Defendants, and Walsh Construction Company, a Division of Guy F. Atkinson

Company, and Daurio & Russo & Sons Construction

Company, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued April 29, 1997.

Decided May 21, 1997.

Edward C. Fabiano, Clifton, for plaintiff-appellant (Wasserstrum and Fabiano, attorneys; Mr. Fabiano, of counsel and on the brief).

Gerard J. Onorata, River Edge, for respondent Walsh Construction Company, a Division of Guy F. Atkinson Company (Peckar & Abramson, attorneys; Mr. Onorata, of counsel and on the brief).

James F. Kane, Roseland, for respondent Daurio & Russo & Sons Construction Company (Paul Seligman, attorney; Mr. Kane, of counsel; Mr. Kane and Manuel J. Almeida, Jr., on the brief).

Before Judges MICHELS, MUIR, Jr., and COBURN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Michael Mears appeals from a summary judgment of the Law Division entered in favor of defendants Walsh Construction Company, a Division of Guy F. Atkinson Company (Walsh), and Daurio & Russo & Sons Construction Company (Daurio) in this personal injury, construction accident case.

On December 11, 1990, plaintiff, an iron worker employed by defendant Rise Steel Corporation (Rise Steel), was working on a construction project at the premises of defendant Sandoz Pharmaceuticals, Inc. (Sandoz) in East Hanover, New Jersey. Plaintiff had obtained his job through his union hall. Walsh was the general contractor on the job while Rise Steel was one of many subcontractors.

Plaintiff had been at the job site for approximately two weeks. His duty was to weld precast stone panels onto the steel girders of a recently constructed three-story structure known as Building 405. He had to weld the panels from atop the roof of the new building. Although there were different ways to access the roof, such as stairs, the closest means available to plaintiff was a scaffold. The scaffold was made of tubular steel with cross bracing and was composed of sections measuring five feet by approximately five feet. The scaffold did not have a safety railing encompassing its top platform. Apparently, the scaffold was positioned within a stairwell and rose to nearly the height of the roof.

On December 11, 1990, plaintiff had climbed and descended the scaffold two or three times without incident. On his third or fourth descent, he stepped onto the upper platform of the scaffold from the roof with a bucket of tools in one hand, and he felt something collapse under his foot. Plaintiff, however, testified during his deposition that he could not recall whether the scaffold collapsed or whether he simply fell. In any case, plaintiff next remembered falling approximately five feet before banging his head and shoulders on concrete steps. Plaintiff then rolled down the stairs, thereby falling and rolling a total of approximately twenty-eight feet.

As a result of the fall, plaintiff was semi-conscious, although he did not break any bones. However, he did have back and neck pain, a headache, and was disoriented. Plaintiff was sent home by the shop steward and the foreman, and did not return to work for one or two days. After the accident, Kerry Flynn, another worker at the site, dismantled the scaffold and placed it on the side of the building.

In December 1991, approximately a year after the accident, plaintiff consulted an attorney, and on December 8, 1992, plaintiff instituted this action against Sandoz, Rise Steel, and several John Doe and John Roe defendants to recover damages for the personal injuries he sustained as a result of the December 11, 1990 accident. On May 19, 1994, plaintiff moved to amend his complaint to add Walsh as a defendant, but the trial court denied the motion. On September 19, 1994, on a motion for reconsideration, the trial court granted plaintiff leave to amend the complaint to include Walsh as a defendant, and on September 27, 1994, plaintiff filed a second amended complaint, naming Walsh as a defendant.

On November 28, 1994, Walsh filed a third-party complaint against defendant Beavertown Cast Stone (Beavertown). On March 3, 1995, the trial court granted plaintiff leave to file a third amended complaint to add Beavertown as a direct defendant, and plaintiff filed that complaint on March 13, 1995. On June 19, 1995, the trial court granted plaintiff leave to file a fourth amended complaint to add Daurio as a direct defendant, and on June 23, 1995, the fourth amended complaint was filed. On July 11, 1995, Walsh filed cross-claims against Rise Steel, Beavertown, and Daurio. On August 15, 1995, the trial court granted summary judgment in favor of Sandoz.

Thereafter, Walsh and Daurio moved for summary judgment, contending that plaintiff's complaint was barred by the statute of limitations. Daurio also claimed that plaintiff's expert's report was an inadmissible net opinion and that plaintiff failed to make out a prima facie case against it. Following argument, the trial court granted summary judgment in favor of both Daurio and Walsh on the ground that the complaint was time-barred. The trial court also agreed that plaintiff's expert opinion was a net opinion and was inadmissible to establish that either Walsh or Daurio deviated from the accepted standard of care required of them. Plaintiff appealed.

Plaintiff seeks a reversal of the summary judgment and a remand for further proceedings, contending that the trial court erred in granting summary judgment because (1) Walsh and Daurio were properly named under the fictitious party procedure of R. 4:26-4; (2) Walsh was under a nondelegable duty to use reasonable care for the safety of persons in and around the Sandoz job site; (3) plaintiff's expert's opinion was not a net opinion and instead established a prima facie case of negligence against Walsh and Daurio; and (4) plaintiff raised genuine issues of material fact which precluded the grant of summary judgment in favor of both Walsh and Daurio. We disagree and affirm.

We are satisfied from our study of the record and the arguments presented that the trial court properly held that plaintiff's personal injury tort action against Walsh and Daurio was barred by the two year statute of limitations of N.J.S.A. 2A:14-2 and that the fictitious party rule did not apply to suspend the running of the statute of limitations. We are convinced that there is no genuine issue of material fact that would preclude the grant of summary judgment in favor of Walsh and Daurio on statute of limitation grounds whether the matter is viewed under Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954), or under the standard recently announced in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), and that all issues of law raised by plaintiff are clearly without merit. R. 2:11-3(e)(1)(E).

It is clear that plaintiff's personal injury tort action is governed by the statute of limitations contained in N.J.S.A. 2A:14-2. That provision 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 2 years next after the cause of any such action shall have accrued.

The statutes of limitations, including N.J.S.A. 2A:14-2, however, are subject to the "fictitious party" rule enunciated in R. 4:26-4. Younger v. Kracke, 236 N.J.Super. 595, 600, 566 A.2d 581 (Law Div.1989). R. 4:26-4 provides in part:

In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to the judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained....

The fictitious party rule suspends the running of the statute of limitations when a plaintiff does not know the true identity of a defendant. Viviano v. CBS, Inc., 101 N.J. 538, 547, 503 A.2d 296 (1986). The rule stems from the courts' "attempt to balance the defendant's interest in repose with the plaintiff's interest in a just determination of his or her claim. The need to submit claims promptly to judicial management must be tempered by the policy favoring the resolution of claims on their merits." Id. at 547, 503 A.2d 296. As our Supreme Court has stated:

Where ... the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play.

[Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115, 299 A.2d 394 (1973) ].

Turning to the elements of fictitious party practice, "[t]he first prerequisite to a fictitious name designation in a pleading is that the true identity of the defendant be 'unknown' to the plaintiff." Marion v. Borough of Manasquan, 231 N.J.Super. 320, 334, 555 A.2d 699 (App.Div.1989). For example, in Washington v. Systems Maintenance Corp., 260 N.J.Super. 505, 507, 616 A.2d 1352 (Law Div.1992), the plaintiff was injured in December 1986, when a bag of laundry fell onto the plaintiff from an overhead laundry conveyance system. In November 1988, the plaintiff filed a complaint naming a John Doe corporation who allegedly designed, manufactured, and/or sold the laundry system. Id. at 508, 616 A.2d 1352. Plaintiff then amended the complaint in April 1992, naming Polymark...