Rosenberg v. Town of North Bergen

• Decision Date: 19 July 1972
• Citation: 293 A.2d 662,61 N.J. 190
• Parties: Frances ROSENBERG, Plaintiff-Respondent, v. TOWN OF NORTH BERGEN, a municipal corporation, Defendant-Respondent, Public Service Coordinated Transport, Defendant, New Jersey Asphalt and Paving Company and Lettieri and Bellezza Company, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 190

61 N.J. 190

293 A.2d 662

Frances ROSENBERG, Plaintiff-Respondent, v. TOWN OF NORTH BERGEN, a municipal corporation, Defendant-Respondent Public Service Coordinated Transport, Defendant New Jersey Asphalt and Paving Company and Lettieri and Bellezza Company, Defendants-Appellants.

Supreme Court of New Jersey.

Argued May 8, 1972.

Decided July 19, 1972.

John Gero, East Orange, for defendants-appellants.

Seymour Margulies, Jersey City, for plaintiff-respondent (Herbert L. Zeik, Bayonne, attorney; Seymour Margulies, Jersey City, of counsel, and on the brief).

Joseph V. Cullum, Union City, filed a statement in lieu of brief on behalf of defendant-respondent.

The opinion of the Court was delivered by

MOUNTAIN, J.

Plaintiff, Frances Rosenberg, sued for personal injuries which she sustained as the result of a fall on Bergenline Avenue in North Bergen on June 6, 1968. At the time of the accident she was crossing the street from west to east in order to reach a Public Service bus stop. The roadbed of this highway had been repaved about 1935 to provide, on either side of a center line, three contiguous lanes of concrete. Some time before the accident the two easternmost lanes had parted, leaving a fissure between them. The plaintiff caught her heel in this opening and fell. In her action she joined as defendants New Jersey Asphalt & Paving Company (Asphalt Co.), which had done the paving work, its successor in interest, Lettieri and Bellezza Company (Lettieri Co.), the Township of North Bergen and Public Service Coordinated Transport.

The defendant municipality and Public Service each moved for summary judgment. The municipality's motion was denied and that of Public Service was granted. Neither of these rulings has been brought before us on this appeal.

At the same time motions for summary judgment were also brought by Asphalt Co. and Lettieri Co. on the ground that any claim of this plaintiff against either of these corporations was barred by N.J.S.A. 2a:14--1.1. ¹ Both of these motions were granted whereupon plaintiff sought leave to appeal to the Appellate Division. The application having been granted, that court reversed the action of the trial judge and remanded the cause for a disposition on the merits, 115 N.J.Super. 322, 279 A.2d 858 (App.Div.1971). We granted the joint petition of Asphalt Co. and Lettieri Co. for certification. 59 N.J. 364, 283 A.2d 108 (1971).

In its opinion reversing the trial court, the Appellate Division, as a matter of statutory construction, determined that a road or highway is not 'an improvement to real property' within the meaning of the statute. 115 N.J.Super., Supra, at 325, 279 A.2d 858. It was therefore unnecessary for that court to reach the issue as to whether or not the statute is unconstitutional, as urged by the plaintiff. Id. at 326, 279 A.2d 858.

This statute, N.J.S.A. 2A:14--1.1, took effect May 18, 1967. The available materials touching its legislative history are meager and unrevealing. We are aware, however, that between 1964 and 1969 some thirty states adopted identical or similar statutes. Comment: Limitation of Action Statutes for Architects and Builders--Blueprint for Non-action. 18 Catholic U.L.Rev. 361 (1969). Other states have since done likewise.

It appears probable that two rather recent but unrelated developments in the law may well have provided the motivation for this widespread legislation. The common result of the developments to which we refer has been to enlarge very appreciably the area of potential liability to which architects and building contractors, among others, may be liable. We think it likely that these statutes are a legislative response seeking to delimit this greatly increased exposure. In order to afford background against which to discern more clearly what may have been the legislative intent in passing this act, we take brief note of these two changes in the law as they have come about here in New Jersey.

The first of these developments has taken place in the field of limitation of actions and is commonly referred to as the 'discovery' rule. In New Jersey the first case of this kind was Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961). Here a wing nut had been negligently allowed to remain in the plaintiff's abdomen following an operation. Upon its discovery she instituted suit. Our two-year statute of limitations would have barred the plaintiff's right to recover if the cause of action were held to have accrued at the time of the operation, but not if the right to sue were found not to have arisen until plaintiff discovered what had occurred. This court adopted the latter view as being more just and equitable. In a comprehensive opinion, containing a wide review of the authorities, Justice Jacobs analyzed the conflicting policy arguments and held, for the court, that at least in foreign body malpractice cases the statute of limitations should not be held to commence to run until the victim discovers, or should have discovered, the wrong that has been inflicted.

In Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N.J. 130, 238 A.2d 169 (1968), plaintiffs suffered property damage when a water meter in their home broke. The meter had been purchased from Worthington Gamon Water Company by the City of New Brunswick in 1942 and installed in plaintiffs' home in 1950. The meter ruptured, causing damage, in 1964. The Law Division granted Worthington's motion for summary judgment on the ground that plaintiffs' claim was barred by the applicable six-year statute of limitations. N.J.S.A. 2A:14--1. The Appellate Division reversed insofar as plaintiffs' claim was based upon negligence but affirmed insofar as it rested on the theory of strict liability in tort. This court held that neither claim was statute-barred since upon either theory--negligence or strict liability--the cause of action did not accrue until injury resulted. This took place when the meter broke. The case therefore, does not rest upon the 'discovery' rule, since the cause of action itself did not arise until the moment of injury. By way of Dicta, however, the court made reference to the rule that had been announced in Fernandi, supra, as a 'highly equitable 'discovery' principle' which was 'receiving ever increasing support throughout the country,' but declined to 'inquire whether it should be extended so as to apply universally,' since this issue was not presented for decision. Rosenau v. City of New Brunswick, Supra, 51 N.J. at 139, 238 A.2d at 173.

In two cases decided later the same year, however, this court did clearly accept the 'discovery' rule as having, if not universal, at least very wide application. In New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 241 A.2d 633 (1968), plaintiff sought damages for a loss sustained because of an inaccurate acreage calculation made by defendant, a professional engineer and land surveyor. We found that damage resulted at the time the inaccurate calculation was given the plaintiff's assignor, but that discovery of the error did not take place until eleven years later when the property was sold. The action of the trial court in granting defendant's motion for summary judgment was reversed upon the ground that the statute of limitations did not commence to run until the discovery of the error.

Diamond v. N. J. Bell Telephone Co., 51 N.J. 594, 242 A.2d 622 (1968), presented a case in which plaintiffs claimed that defendant, in the course of installing an underground conduit in 1957, had damaged their sewer line. The damage was not apparent until 1966 when a backup occurred and plaintiffs' property was flooded. Justice Schettino, speaking for the court, reviewed our earlier cases as well as many in other jurisdictions, and reached the conclusion that where damage was hidden and could not readily be detected, justice required that the statute of limitations would not be deemed to run until the wrong was discovered or should have been detected. See also Yerzy v. Levine, 57 N.J. 234, 271 A.2d 425 (1970), affirming 108 N.J.Super. 222, 260 A.2d 533 (App.Div.1970), and Federal Insurance Co. v. Hausler, 108 N.J.Super. 421, 261 A.2d 671 (App.Div.1970).

This rule which decrees that in appropriate cases a statute of limitations shall not be deemed to run until a wrong has been discovered or should have been discovered, fosters the just result of protecting those who have suffered injury from losing a right to redress because of ignorance of the wrong done. In achieving this salutary result the rule does, however, necessarily prolong the potential exposure of wrongdoers and of those who may be thought to be wrongdoers. In the case before us, for instance, the contractors who repaved Bergenline Avenue are being required to defend an action for damages more than thirty years after their work was completed.

The second development in the law which we think may have provoked this legislation is the recently adopted rule that an architect's or a contractor's liability for negligent planning or construction will not terminate, as a matter of law, upon the work having been completed and accepted by the owner or employer. In Totten v. Gruzen, 52 N.J. 202, 245 A.2d 1 (1968) this Court so held, rejecting the earlier 'completed and accepted' rule as set forth in Miller v. Davis & Averill, Inc., 137 N.J.L. 671, 61 A.2d 253 (E. & A. 1948). ² In the course of his opinion in Totten Justice Hall observed, They (builders and contractors) are not to be relieved from liability merely because their work has been completed and accepted by the owner. Such liability may rest on architects and engineers on the basis of improper design as well as on contractors for defective materials, equipment and workmanship. (Totten v. Gruzen, Supra, 52 N.J. at 210, 245 A.2d at 5)

Thus the immunity afforded by the earlier rule vanished. The moment of completion and acceptance was no longer also the moment when potential liability...