X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In March 1999, plaintiff Wendy Greczyn tripped and fell on a staircase in the Colgate-Palmolive office complex in Piscataway. She filed suit in October 2000, to recover damages for injuries she allegedly received in that fall. She was employed by Colgate-Palmolive and joined it as a defendant for discovery purposes only. Plaintiff named as additional defendants John Does, 1 through 20, and ABC Corps., 1 through 20. In her original complaint, she described John Does and ABC Corps. 11 through 20 as having designed and constructed the staircase. Through discovery, she learned that defendants Kling Lindquist had served as the architects in the renovation and construction of the staircase and that that project was substantially completed by November 1990. In October 2001 she moved to amend her complaint to substitute Kling Lindquist as a defendant. Her motion was granted. In December 2001, she filed her amended complaint. Kling Lindquist, relying on the 10-year statute of repose, N.J.S.A. 2A:14-1.1, moved for summary judgment. The trial court granted the motion, rejecting plaintiff’s argument that the amended complaint, filed more than one year beyond the 10-year limit, should be deemed to relate back to the filing of the original complaint. N.J.S.A. 2A:14-1.1 is not a statute of limitations but, rather, a statute of repose. A statute of repose operates without regard to the accrual of a cause of action. “A statute of repose does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising.” Rosenberg v. Town of N. Bergen, 61 N.J. 190 (1972). Under 2A:14-1.1, an “[i]njury occurring more than 10 years after the performance of the negligent act simply forms no basis for recovery.” E.A. Williams Inc. v. Russo Dev. Co., 82 N.J. 160, 167 (1980). Rosenberg noted that the statute had been enacted in response to developments in the law that had substantially expanded the potential scope of liability of those involved in the design and construction of improvements to real property. These included the development of the discovery rule, under which a cause of action is held not to accrue until the plaintiff discovered what had occurred, and Totten v. Gruzen, 52 N.J. 202 (1968), which rejected the completed and accepted rule, thus also expanding the potential period of liability. O’Connor v. Altus, 67 N.J. 106, 118-19 (1975), noted that the earlier imposition of strict liability on a mass developer of houses in Schipper v. Levitt & Sons, Inc., 44 N.J. 70 (1965), also was a factor in the Legislature’s decision to enact this statute of repose. Because 2A:14-1.1 is a statute of repose, its 10-year period cannot be enlarged because the injured party is a minor, or because the defect in construction is latent and concealed through subterfuge. A statute of repose serves a different purpose than does a statute of limitations. “Statutes of limitations . . . protect against the litigation of stale claims, stimulating diligent prosecution of claims, penalizing dilatoriness, and serving as a measure of repose. The purpose of the statute of repose is to provide a measure or [sic] repose and prevent liability for life against contractors and architects.” Hein v. GM Const. Co., 330 N.J. Super. 282, 286 (App. Div. 2000). Balanced against these considerations is the procedural technique of fictitious-party practice incorporated in Rule 4:26-4. Where a plaintiff, despite diligent efforts, has been unable to ascertain the identity of a defendant potentially responsible for the harm incurred, he may sue that defendant using a fictitious name. Thereafter, if the plaintiff learns the identity of the allegedly culpable party, the complaint may be amended, even after the statute of limitations has run, to substitute the defendant’s name and effect service on him, particularly where he can show neither prejudice resulting from nor reliance on the lapse of time. Plaintiff contends the same result should obtain here, thus permitting her to amend her complaint after the statute of repose has concluded. Plaintiff’s original complaint was filed within the 10-year period of 2A:14-1.1. She argues that Kling Lindquist was thus timely joined as a defendant, although not identified beyond the John Doe designation. Such a position, however, would result in the evisceration of the period of repose the Legislature intended to confer. No reported New Jersey opinion has discussed the question. Plaintiff points to cases under the Wrongful Death Act, 2A:31-1 to -6, which have permitted the use of fictitious-party practice and amendment of complaints after the statutory period of limitations. Both cases are distinguishable. Although Estate of Vida ex rel. Kesciova v. City of Garfield, 330 N.J. Super. 225 (App. Div. 2000), noted that the two-year period within which a wrongful death act must be commenced is “a substantive statute of limitations [which] conditions not only the remedy but also the right,” it stressed that defendant had actual notice prior to the expiration of the statute of the claim and that plaintiff would be seeking leave to amend the complaint to join defendant as a party. After reviewing the steps plaintiff had taken to identify the manufacturer of the product, Vida determined that the doctrine of substantial compliance precluded dismissal of the complaint. Brown v. Kennedy Mem’l Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579 (App. Div.), certif. denied, 156 N.J. 422 (1998), is also inapplicable here. The issue there involved whether plaintiff had made sufficient efforts to identify the party to come within the scope of Rule 4:26-4. Here, the sufficiency of plaintiff’s efforts is not in question. Brown does not indicate that any party challenged whether fictitious-party practice could serve to permit the amendment of the complaint past the statutory period of limitations. LaFage v. Jani, 166 N.J. 412 (2001), considered the nature of the limitations period in the wrongful-death statute. It held that despite prior descriptions of 2A:31-3 as a “substantive” statute of limitations, it is “procedural” and thus subject to equitable principles. The Court specifically held that the two-year period of limitations could be equitably tolled for the decedent’s minor children. The Supreme Court, however, has clearly held that 2A:14-1.1 is not procedural but, rather, substantive. It has also explicitly held that under 2A:14-1.1, the 10-year period of limitations is not tolled by the minority of a plaintiff. Plaintiff’s attempt to analogize to the wrongful-death statute is inapt. There is nothing intrinsic to a statute of repose that would preclude use of the doctrine of relation back in all instances. There is a significant distinction between an amendment beyond the period of repose that asserts additional claims against an existing named party and an amendment beyond the period of repose that substitutes a newly identified party for a John Doe defendant. The latter situation is involved here. Both Alabama and Massachusetts have considered the impact, if any, of fictitious-name practice on a complaint that is amended after the period of repose has expired. They have, however, come to opposite conclusions. Alabama has a statute that combines both a period of limitations and a period of repose for medical-malpractice actions. Under it, a party may commence such an action within two years of the alleged negligence but if the party is unaware of the cause of action and could not reasonably have discovered it within two years, he may commence suit within six months of the discovery but in no event more than four years after the alleged negligence. In Marsh v. Wenzel, 732 So.2d 985 (1998), Dixie Marsh had undergone a biopsy in March 1993, the results of which were reported as benign. In September 1993, she had the mass removed. It proved to be malignant. In March 1995 she sued the surgeon, alleging he was negligent in not removing the mass earlier. She included fictitious parties as defendants. In April 1997 further testing determined that cells removed during the original biopsy were indeed malignant and in June 1997 she amended her complaint to substitute the physician who performed that biopsy for one of the fictitiously named defendants. The trial court granted that physician summary judgment on the ground that the suit against him was barred by the four-year rule of repose. The Alabama Supreme Court affirmed the result, but on different grounds. It said the failure of the statute of limitations/repose to “expressly exclude the availability of fictitious-party practice and its doctrine of relation back” indicated that it was permitted. It concluded, however, that plaintiff was not entitled to use the doctrine because she could not reasonably be deemed to be ignorant of the name of the physician at the time she commenced her action. The analysis of the Alabama Supreme Court is not persuasive. In New Jersey the doctrine of relation back and fictitious-party practice are not statutory. They are dealt with in the rules of civil practice. That 2A:14-1.1 does not refer to them cannot be deemed an indication of legislative approval of such pleading techniques. Three years later, the Alabama Supreme Court permitted a plaintiff to rely on fictitious-party practice and the doctrine of relation back in Oliver v. Woodward, 824 So.2d 693 (2001). There, despite plaintiff’s diligent efforts, she was unable to learn the identity of the doctor involved in the alleged malpractice. Once she learned his identity, she promptly amended her complaint to name him as a defendant. Because she was diligent in seeking his identity and prompt in acting once it was known, the Court applied the doctrine of relation back and thus her complaint was timely. Massachusetts takes a contrary view. Tindol v. Boston Hous. Auth., 487 N.E.2d 488 (Mass. 1986), is illustrative. There, a minor and her mother commenced suit in 1979 against the housing authority for injuries the daughter received in December 1976 when she was scalded with excessively hot water. In 1984, they sought to amend the complaint to add architects and engineers as defendants. Massachusetts has a six-year statute of repose for suits arising from improvements to real property. The Supreme Judicial Court concluded that the doctrine of relation back does not apply to a statute of repose and ruled that the architects and engineers were entitled to a dismissal. Massachusetts restated that view in Nett v. Bellucci, 774 N.E.2d 130, 134-35 (Mass. 2002). Massachusetts also has a statute that combines elements of a statute of limitations and a statute of repose for medical-malpractice actions on behalf of a minor. Under it, a suit must be brought within three years of accrual of the cause of action “except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after” the alleged negligence. The plaintiffs began suit in April 1996 seeking damages for the injuries Aaron Nett received during his birth in April 1992. Aaron was significantly larger at birth than the obstetrician, based on an ultrasound reading performed a week prior to his birth, had anticipated. The obstetrician had not been prepared to deal with the attendant complications that developed. Despite diligent efforts, the ultrasound films were not located until February 1999, all parties having believed they were destroyed. In March 1999, plaintiffs moved to amend their complaint to join the radiologist who initially read the films. The District Court granted the radiologist’s motion to dismiss, concluding that the amended complaint was untimely because it was filed more than seven years after the films were read. The Massachusetts Supreme Judicial Court found that, for purposes of the statute of repose, an action is deemed to commence on the date a motion for leave to amend is filed. It also stated that it is not material for purposes of the statute of repose if the initial motion papers may have been technically noncompliant in certain regards. The Court noted that under Massachusetts law, “amended pleadings for claims subject to a statute of repose [do not] relate back to the original pleadings [because doing so] ‘would have the effect of reactivating a cause of action that the legislature obviously intended to eliminate.’” Id. at 135. Held: Tindol and Nett represent the better line of cases. Although LaFage and Negron represent significant expansions of the limitation of wrongful-death actions, such actions are not an appropriate analogy to actions relating to improvements to real property. Also, New Jersey courts have consistently recognized a substantive distinction between 2A:14-1.1 and statutes of limitation. The legislative silence in the face of decisions such as O’Connor is a clear indication that its policy and intent is to apply the statute of repose strictly. Application of fictitious-party practice and the doctrine of relation back would ignore that legislative intent. Further, there is a significant distinction in the nature of construction-related litigation and other litigation. Defects in construction often do not manifest themselves for years and it can be difficult to identify the causes and responsible parties. In enacting 2A:14-1.1, the Legislature made a policy decision that those involved in the design, planning, construction or supervision of an improvement to real property were entitled to the security afforded by a bright-line statute of repose. Plaintiff’s contention that fictitious-party practice and the doctrine of relation back should be permitted and the trial courts should deal with individual assertions of prejudice and unfairness is rejected. It was just such individual determinations that the Legislature sought to avoid when it enacted 2A:14-1.1. Inviting such analyses would be contrary to that intent. Affirmed. — Digested by Judith Nallin [The slip opinion is 20 pages long.] For appellant — Jared P. Kingsley (Bumgardner, Ellis, McCook & Kingsley). For respondent Kling Lindquist — Andrew J. Carlowicz (Hoagland, Longo, Moran, Dunst & Doukas).

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.