Rosenau v. City of New Brunswick

Decision Date05 February 1968
Docket NumberNo. A--31,A--31
Parties, 5 UCC Rep.Serv. 126 James N. ROSENAU and Norah Rosenau, Plaintiffs-Appellants, v. CITY OF NEW BRUNSWICK, New Jersey, and Worthington Gamon Meter Company of Newark, New Jersey, Defendants-Respondents.
CourtNew Jersey Supreme Court

Edward K. Zuckerman, New Brunswick, for appellants.

Robert M. Graham, Somerville, for respondent Worthington Gamon Meter Co. of Newark, New Jersey (Champi, Graham & Franchino, Somerville, attorneys).

The opinion of the court was delivered by


The Law Division entered a summary judgment in favor of Worthington which was reversed in the Appellate Division. 93 N.J.Super. 49, 224 A.2d 689 (1966). We granted certification on an application by the plaintiffs. 48 N.J. 578, 227 A.2d 136 (1967).

In 1942 the City of New Brunswick, which operates a municipal water system, purchased 60 water meters from the manufacturer, Worthington Gamon Meter Company. The City installed one of these meters in the plaintiffs' home in 1950. In 1964 the meter broke, causing damage to the plaintiffs' premises. Thereafter the plaintiffs filed a two-count complaint against the City and Worthington. In their first count, which sought recovery from the City, they alleged that it had been negligent in its servicing and maintenance of the meter and that as a result their property was damaged; in their second count, which sought recovery from Worthington, they alleged that Worthington had been negligent in the manufacture of the meter, that apart from negligence the meter was defective when manufactured, and that as a result they suffered the damage. Answers, along with contribution claims against each other, were filed by the City and Worthington and a further claim in the nature of indemnity was filed by the City against Worthington.

Worthington moved for summary judgment on the ground that the plaintiffs' claim against it was barred by the statute of limitations. The trial court granted its motion and entered a judgment in its favor as against the plaintiffs; it also dismissed the City's claims against Worthington for contribution and indemnification. The plaintiffs appealed to the Appellate Division where the matter was argued by the plaintiffs and Worthington; the City took no appeal and did not appear. The Appellate Division held that the statute of limitations had not barred the plaintiffs' claim insofar as it was grounded on negligence (93 N.J.Super. at p. 54, 224 A.2d 689) but had barred it insofar as it was based on the assertion of a defect in manufacture without any accompanying allegation of negligence. 93 N.J.Super. at p. 56, 224 A.2d 689. The plaintiffs' petition for certification sought review of the latter portion of the Appellate Division's holding; no cross petition attacking the former portion of the holding was filed by Worthington and the City filed no papers and entered no appearance at that time or thereafter.

In its brief before us, Worthington seeks to have the Appellate Division's judgment set aside and the trial court's summary judgment reinstated. Since it never filed a cross petition for certification seeking review of the Appellate Division's reversal, it is technically in no position to obtain such relief. See Liberty Title & Trust Co. v. Plews, 6 N.J. 28, 45, 77 A.2d 219 (1950); Bruno v. City of Long Branch, 21 N.J. 68, 70, 120 A.2d 760, 60 A.L.R.2d 216 (1956); Franklin Discount Co. v. Ford, 27 N.J. 473, 491, 143 A.2d 161, 73 A.L.R.2d 1316 (1958). However the two portions of the holding in the Appellate Division were intertwined and, in the light of the grant of the plaintiffs' petition for certification, both will be dealt with here.

It must firmly be borne in mind that at this stage of the proceeding we are concerned only with the question of limitations. We must assume, for present purposes, the truth of the allegations in the complaint notwithstanding that the plaintiffs may have difficulty at trial in establishing them, particularly in view of the long lapse of time since the meter was manufactured. Admittedly the plaintiffs will have the burden, on their charge of negligence, of establishing the absence of due care in the course of manufacture and causally related damage (Jakubowski v. Minnesota Mining and Manufacturing, 80 N.J.Super. 184, pp. 191--194, 193 A.2d 275 (App.Div.1963), reversed on other grounds, 42 N.J. 177, 199 A.2d 826 (1964)), and on the charge of defect in manufacture apart from negligence, they will have the burden of establishing, along with causation, that the meter was dangerously defective when it 'left the defendant's hands.' Jakubowski v. Minnesota Mining and Manufacturing, supra, 42 N.J. at p. 182, 199 A.2d 826. See Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 92, 207 A.2d 314 (1965); Restatement (Second) of Torts § 402A (1965); cf. Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966):

There seems to be no unfairness in holding that a manufacturer who markets a product which is not only defective but unreasonably dangerous should be responsible for any physical harm which results to person or property, even though no privity of contract and no negligence can be established. It might be added that where the plaintiff can sustain the heavy burden of showing, as he must, that the product was in a dangerously defective condition at the time it left the hands of the manufacturer, it is quite likely that some negligence was involved even though this cannot be proved. See Wade, supra, 19 Sw.L.J. 5, (1965); Noel, Products Liability of Manufacturers--To Manufacturers of Products--The Drift Toward Strict Liability, 24 Tenn.L.Rev. 963, 1012--13 (1957), 398 S.W.2d at pp. 249--250.

See also Rapson, Products Liability Under Parallel Doctrines: Contrasts Between the Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L.Rev. 692, pp. 702--704 (1965).

Statutes of limitations are designed to stimulate litigants to prosecute their causes of action diligently and 'to spare the courts from litigation of sale claims.' Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635 (1945). The penalize dilatolriness and serve as measures of repose. Wood v. Carpenter 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879). As phrased by Lord Atkinson in Board of Trade v. Cayzer, Irvine & Co. (1927) A.C. 610, 628, their whole purpose 'is to apply to persons who have good causes of action which they could, if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them.' Cf. Fernandi v. Strully, 35 N.J. 434, 438, 173 A.2d 277 (1961); Kyle v. Green Acres of Verona, Inc., 44 N.J. 100, 108, 207 A.2d 513 (1965).

New Jersey's statutes provides that actions for tortious injury to property and for injury to the person resulting from wrongful acts, neglects or defaults, shall be commenced within six and two years respectively, 'after the cause of any such action shall have accrued.' N.J.S. 2A:14--1, N.J.S.A.; N.J.S. 2A:14--2, N.J.S.A. The Legislature has not specified when the cause of action shall be deemed to have accrued and the matter has therefore been left entirely to judicial interpretation and administration. Fernandi v. Strully, supra, 35 N.J. at p. 449, 173 A.2d 277. Our courts have identified the accrual of the cause of action as the date on which 'the right to institute and maintain a suit' first arose. Fredericks v. Town of Dover, 125 N.J.L. 288, 291, 15 A.2d 784, 787 (E. & A. 1940). When dealing with a cause of action grounded on negligent injury or damage to person or property they have held that the cause of action accrued not when the negligence itself took place but when the consequential injury or damage occurred. See Church of Holy Com'n v. Paterson, etc., R.R. Co., 66 N.J.L. 218, 226, 236, 149 A. 1030, 55 L.R.A. 81 (E. & A. 1901); Ochs v. Public Service Railway Co., 81 N.J.L. 661, 662, 80 A. 495, 36 L.R.A.,N.S., 240 (E. & A. 1911). As pointed out by Justice Bergen in Ochs:

* * * it is the injury and not alone the negligent act which gives rise to the right of action, for a negligent act is not in itself actionable, and only becomes the basis when it results in injury to another. In order to support an action there must be not only the negligent act, but a consequential injury which is the gravamen of the charge, and this distinction between the negligent act and its consequences is recognized in deciding when a cause of action arises in cases where the bar of the statute of limitations is interposed. 81 N.J.L. at 662, 80 A. at 496.

See Watkins v. Myers, 12 N.J. 71, 74, 95 A.2d 705, 36 A.L.R.2d 1330 (1953); Kovacs v. Everett, 37 N.J.Super. 133, 137, 117 A.2d 172 (App.Div.1955), certification denied, 20 N.J. 466, 120 A.2d 66 (1956).

In his discussion of the elements of a negligence cause of action, Dean Prosser noted that since it developed chiefly out of the old form of action on the case, it retained the rule that proof of actual damage is an essential part of the plaintiff's case; and he noted further that nominal damages, to vindicate a technical right, cannot be recovered in a negligence action where no actual loss has occurred. Prosser, Torts § 30, p. 146 (3d ed. 1964); see also 2 Harper and James, Torts § 25.1, p. 1300 (1956); McCormick, Damages § 22, p. 88 (1935). New Jersey's position that a verdict of no cause may properly be returned against an unhurt passenger though the drivers of both of the colliding vehicles were negligent, in effect applies Prosser's approach. See Ardis v. Reed, 86 N.J.Super. 323, 330, 206 A.2d 890 (App.Div.), affirmed, 46 N.J. 1, 214 A.2d 313 (1965); Kovacs v. Everett, supra, 37 N.J.Super. at p. 136, 117 A.2d 172. Numerous decisions in other states subscribe to the doctrine that a plaintiff's cause of action accrues for limitation purposes when he suffers actual...

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