Opinion
DOCKET NO. A-5533-12T3
06-24-2014
GABRIEL J. HURLEY, Plaintiff-Appellant, v. TOYOTA MOTOR CORP., HATCH MOTT MACDONALD, HIGHWAY SAFETY SYSTEMS, INC., CSX CORPORATION, TOYOTA INDUSTRIES CORPORATION (TICO), AND TOYOTA MOTOR SALES, USA, INC., Defendants, and DENSO CORP., NEW JERSEY TRANSIT CORPORATION, THE TOWNSHIP OF EDISON, THE COUNTY OF MIDDLESEX, THE STATE OF NEW JERSEY, THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants-Respondents, and FORD MOTOR COMPANY, Defendant/Third-Party Plaintiff, v. MICHAEL R. O'MALLEY, THOMAS B. O'MALLEY AND PAUL SCOCCA, Third-Party Defendants.
George L. Psak argued the cause for appellant (Psak & Associates, attorneys; Mr. Psak, on the briefs). Leona C. McFadden argued the cause for respondent Denso Corporation (Lavin, O'Neil, Ricci, Cedrone & DiSipio, attorneys; Ms. McFadden, of counsel and on the brief; Gerard Cedrone, of counsel and on the brief). Brian J. Chabarek argued the cause for respondent Township of Edison (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Chabarek, of counsel and on the brief; Matthew S. Schoen, on the brief). Clark W. Convery argued the cause for respondent County of Middlesex (Convery, Convery & Shihar, P.C., attorneys; Mr. Convery, on the brief). Peter D. Wint, Assistant Attorney General, argued the cause for respondents State of New Jersey/Department of Transportation and New Jersey Transit Corporation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-0617-10 and L-4427-11.
George L. Psak argued the cause for appellant (Psak & Associates, attorneys; Mr. Psak, on the briefs).
Leona C. McFadden argued the cause for respondent Denso Corporation (Lavin, O'Neil, Ricci, Cedrone & DiSipio, attorneys; Ms. McFadden, of counsel and on the brief; Gerard Cedrone, of counsel and on the brief).
Brian J. Chabarek argued the cause for respondent Township of Edison (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Chabarek, of counsel and on the brief; Matthew S. Schoen, on the brief).
Clark W. Convery argued the cause for respondent County of Middlesex (Convery, Convery & Shihar, P.C., attorneys; Mr. Convery, on the brief).
Peter D. Wint, Assistant Attorney General, argued the cause for respondents State of New Jersey/Department of Transportation and New Jersey Transit Corporation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief). PER CURIAM
Plaintiff Gabriel J. Hurley appeals from the March 15, 2013 order, dismissing his claim as untimely against defendants Township of Edison (Township), County of Middlesex (County), New Jersey Transit Corporation (NJT), State of New Jersey Department of Transportation (DOT), (collectively, the governmental entities), and Denso Corporation, and the May 3, 2013 order denying his motion for reconsideration. Having considered plaintiff's arguments in light of the record and controlling law, we affirm.
Viewed in the light most favorable to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record reveals the following facts and procedural history. Those facts are tailored to address only the issues raised by plaintiff with respect to his claims against the governmental entities and Denso, omitting facts concerning the other defendants.
On June 18, 2009, plaintiff was involved in a three-car motor vehicle accident which resulted in significant permanent injuries, including blindness, to him. Defendant Michael O'Malley was operating a 2004 Toyota Celica on Oak Tree Road, in the area of the CSX bridge and Harding Avenue, Edison, when he attempted to pass defendant Paul Scocca, and collided head-on with plaintiff's Ford Mustang.
Plaintiff retained counsel in July 2009, and that same month counsel visited the scene of the accident. In September 2009, plaintiff filed tort claim notices against the governmental entities, which stated, "that the governmental entities were negligent in road and bridge design, failure to repair and maintain, [and] failure to provide proper lighting and drainage."
In January 2010, plaintiff filed a complaint against defendants Michael O'Malley and Scocca. Shortly thereafter, in February 2010, plaintiff received the Edison police accident report, and in March 2010, other relevant records from the Middlesex County Prosecutor's Office. Around the same time, plaintiff's engineering expert, Scott Derector, determined that plaintiff could not prove that the governmental entities were responsible for plaintiff's injuries. Also in January, plaintiff regained possession of his damaged Mustang, but no further investigation was conducted on the car until June 10, 2011, at which time, plaintiff's second expert, John Yannaccone, examined the vehicle and found an air conditioning compressor in the back seat of the Mustang. Yannaccone determined that the compressor had come from the Toyota Celica and his report indicated that the compressor "had a label identifying it as DENSO Model 10S15L," which was "used on 2000 to 2005 Toyota Celicas." Plaintiff filed a separate complaint against Toyota Motor Corp. and Ford Motor Company on June 15, 2011, three days before the statute of limitations expired, but did not file a complaint against Denso at that time.
On February 13, 2012, plaintiff moved to amend the complaint, which was granted on March 2, 2012. On March 20, 2012, two years and nine months after the accident, plaintiff filed an amended complaint adding as defendants the governmental entities, Hatch Mott MacDonald (Hatch Mott), CSX Corporation (CSX) and Denso. The amended complaint alleged that the governmental entities and CSX were potential parties liable for certain negligence with regard to the road, guiderails, and railroad bridge overpass where the accident occurred. Plaintiff alleged that Denso was negligent in designing and manufacturing the air conditioning compressor installed in O'Malley's Toyota Celica.
The governmental entities and Denso filed answers to the amended complaint asserting the affirmative defense of the statute of limitations. On December 20, 2012, plaintiff filed a motion to dismiss their affirmative statute of limitations defense. On January 29, 2013, the trial court ordered the dismissal with prejudice of their statute of limitations defenses and plaintiff's complaint was deemed to have been timely filed.
The governmental entities and Denso filed motions for reconsideration of that order. In a March 15 oral decision granting the motion, the judge rejected plaintiff's argument and dismissed plaintiff's complaint against the governmental entities and Denso for plaintiff's failure to comply with the two-year statute of limitations pursuant to N.J.S.A. 2A:14-2(a). The judge stated that a "tort notice of claim was filed by plaintiff's counsel against the County, the State, and the Township on September 17, 2009. In that notice of claim, plaintiff states he has claims against the County based on negligent road and bridge design, failure to repair and maintain, and failure to provide proper lighting and drainage." The judge determined that when plaintiff filed the tort claim notice, plaintiff's counsel would have known that he had an actual basis against the governmental entities, therefore, the discovery rule is inapplicable.
The judge further determined with respect to Denso, that plaintiff's engineer had the opportunity from January 2010 to look at the car and identify the air compressor found in the back seat. The judge stated that, "this air compressor was always in the back seat of the car and they could have made that determination as to whether there were product liability issues." In addition, the judge found that,
when the plaintiff's engineer did go to that car on June 11, 2011 . . . he knew that the air compressor had gone through the [plaintiff's] window because there was a Toyota air compressor in the back of the Ford Mustang and . . . the engineer learned that the compressor was used in Toyota Celicas. Within a day or two after the actual inspection, he's aware . . . of what occurred[.]The trial judge also found that the complaint was "not filed against these parties timely within the statute of limitations," as it was filed two years and nine months after the incident.
Plaintiff moved for reconsideration of the March 15 order, which was denied on May 3, 2013. The judge, in an oral decision, stated, "I ruled on March 15 of 2013 and reconsidered myself as to several of my prior rulings . . . . I have already heard this motion twice. I have read all of the papers twice. I heard oral arguments both times extensively . . . and I stand by the rulings that I made on the record on March 15, 2013."
We granted plaintiff's motion for leave to appeal both interlocutory orders. It is from the March 15 and May 3 orders that plaintiff appeals.
Plaintiff submits that the trial court erred in finding that the filing of the torts claim notice precludes application of the discovery rule to the governmental entities for purposes of the statute of limitations. He further contends that his reliance on his initial expert, who opined that there was no cause of action against the governmental entities, which was contradicted by his second expert, requires application of the discovery rule thereby making his filing timely. He argues that his "temporary incompetency" should toll the statute of limitations. Plaintiff also asserts that the trial court erred by dismissing plaintiff's complaint against Denso. Plaintiff further submits that the trial court erred by dismissing his complaint with prejudice without first conducting a Lopez hearing. Lopez v. Swyer, 62 N.J. 267 (1973).
We note first the standard governing our review of a trial court's award of summary judgment. When reviewing such a grant, we employ the same standard as the trial judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citations omitted). First, we must decide whether there was a genuine issue of material fact. If there was not, then we must decide whether the trial judge correctly applied the law. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006) (citations omitted). Because this case arises on a motion for summary judgment, we consider the facts in the light most favorable to the plaintiff. See Brill, supra, 142 N.J. at 540; R. 4:46-2.
The motion judge's conclusion on an issue of law is accorded no deference and is reviewed de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). With regard to plaintiff's contention that the trial court erred in declining to apply the discovery rule, we note that the judge was required to determine whether plaintiff knew or reasonably should have known that he had been injured due to the actions or inactions of the defendants on the date of his injury. Lopez, supra, 62 N.J. at 272. This analysis requires the equitable application of what is known, under Lopez and its progeny, as the "discovery rule." Ibid.
The discovery rule has been crafted and applied as an equitable device "to avoid the potentially harsh effects of the 'mechanical application' of statutes of limitations." Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987)). "Under the discovery rule . . . the limitations period does not commence until the injured party actually discovers or should have discovered through reasonable diligence the fact essential to the cause of action." R.A.C. v. P.J.S., Jr., 192 N.J. 81, 98 (2007).
The discovery rule "prevents the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another." Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998). "Although the discovery rule does not require 'knowledge of a specific basis for legal liability or a provable cause of action,' it does require 'knowledge not only of the injury but also that another is at fault.'" Guichardo, supra, 177 N.J. at 51 (quoting Martinez v. Cooper Hosp. - Univ. Med. Ctr., 163 N.J. 45, 52 (2000)).
"Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware 'of that state of facts which may equate in law with a cause of action.'" Abboud v. Viscomi, 111 N.J. 56, 63 (1988) (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)). The fundamental question in a discovery rule case, therefore, is "whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001).
The discovery rule balances the need to protect injured persons unaware that they have a cause of action against the injustice of compelling a defendant to defend against a stale claim. Lopez, supra, 62 N.J. at 273-74. To be sure, legal and medical certainty are not required for a claim to accrue. See Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000). Thus, a plaintiff need not be informed by an attorney that a viable cause of action exists, Burd, supra, 76 N.J. at 291-92, nor does a plaintiff need to understand the legal significance of the facts, see Lynch v. Rubacky, 85 N.J. 65, 73 (1981). Likewise, a plaintiff may not delay his filing until he obtains an expert to support his cause of action. Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990).
"Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). That being the case, it is usually true that the date of an accident or a negligent act is also the date on which the associated cause of action accrues. Id. at 117 (citations omitted).
In Beauchamp, a case arising out of personal injuries caused by a collision with a New Jersey Transit bus, the Court determined that plaintiff's cause of action against the public entity accrued on the date of the accident itself. Id. at 119. The Court noted that it was "not contested that [the plaintiff] was injured at that time." Ibid. In fact, the plaintiff obtained treatment from a chiropractor approximately two weeks after the accident. Id. at 114. Although the prognosis for the plaintiff's injuries worsened over time, as diagnostic tests later showed them to be permanent, the Court found that her claims had accrued on the date of the collision, for it was immediately clear to the plaintiff that she had been injured. Id. at 119.
Generally, once a prospective litigant knows he has been injured and knows or has reason to know that someone has probably been at fault, the statute of limitations will begin to run as to all those individuals or entities within the universe of potential defendants whose identities are reasonably ascertainable, regardless of whether the aggrieved party knows the specific identity of those responsible for her injuries. See Apgar v. Lederle Labs., 123 N.J. 450, 456 (1991) (rejecting plaintiff's argument that the statute of limitations did not begin to run until she learned the identities of the manufacturers of the drugs which had allegedly permanently discolored her teeth); Viviano v. CBS, Inc., 101 N.J. 538, 546-47 (1986) ("Although she did not know the identity of the wrongdoer or of the specific part that caused the machine to malfunction, she was aware that the fault of another had caused her to suffer personal injuries."). This is because once an injured person knows that he has been injured and that the injury is attributable to the act of another, it is in his or her interest to consult counsel promptly. Id. at 547-48. "It then becomes incumbent on counsel to investigate the matter, retain experts if required, and institute suit when the facts suggest a claim is well-founded." Id. at 548.
Here, the standard is not whether the governmental entities and Denso's potential involvement in causing plaintiff's injuries was certain, provable, or even probable, but rather whether plaintiff knew or reasonably should have been aware that these defendants were potentially at fault for his injuries. See Martinez, supra, 163 N.J. at 55 ("[W]here a plaintiff knows of an injury, but fault is not self-evident or implicit in the injury itself, it must be shown that a reasonable person would have been aware of such fault in order to bar the plaintiff from invoking the discovery rule."). As our Supreme Court has explained,
knowledge of fault for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct
itself might possibly have been unreasonable or lacking in due care.
[Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, 248 (1993) (emphasis omitted).]
Cases in which the Court has held that the statute of limitations did not begin to run against a particular individual or entity within the limited universe of potential defendants, notwithstanding the plaintiff's discovery of his injury and awareness that it had been "due to the fault of another," generally involve a unique set of circumstances which permit the conclusion that plaintiff had no reason to believe that his injuries were potentially due to the negligent conduct of a third party. See Caravaggio, supra, 166 N.J. at 246.
The majority of these cases involve issues of complex medical causation where the prospect that the conduct of other third parties may have caused or contributed to the plaintiff's injuries was not self-evident or implicit in the nature of the injury itself. See, e.g., Mancuso v. Neckles, 163 N.J. 26, 35 (2000) (permitting breast cancer patient to invoke discovery rule to bring claim against radiologist more than two years after his alleged malpractice in allegedly misinterpreting the patient's first two mammograms where patient "did not suspect, much less have reason to believe," that she might have been injured by radiologist's conduct until receipt of information through a deposition in connection with related malpractice claim against surgeon for failure to follow up); Gallagher v. Burdette-Tomlin Mem. Hosp., 163 N.J. 38, 38 (2000) (applying discovery rule to patient's medical malpractice claim against after-care urologists for negligent treatment of infection where patient had "no reasonable basis to suspect that her crippling condition was caused by anything other than the original surgery").
Moreover, in many of these cases, prospective litigants were misled, either intentionally or inadvertently, by the false assurances of a physician or expert that a third party's conduct had not caused or contributed to their injuries. See Caravaggio, supra, 166 N.J. at 251 (finding delay in bringing malpractice claim against orthopedic surgeon was justified where patient reasonably relied on the surgeon's statements placing blame for post-surgery complications with defective rod); Martinez, supra, 163 N.J. at 57 (finding that physician's assurances that the hospital emergency room staff "did all they could" to treat victim of a severe beating "would tend to deflect an ordinary person's attention from the hospital's conduct"); Abboud, supra, 111 N.J. at 65 (noting that dentists' repeated assurances that plaintiff's post-extraction pain was normal contributed to delay in discovering permanent nerve damage); Lynch, supra, 85 N.J. at 74-76 (observing that doctor's repeated assurances that plaintiff's condition was the result of normal "healing process" impeded plaintiff from discovering doctor's negligence). In other words, each of the cases in this sub-category of discovery rule decisions presented equitable considerations justifying a prospective litigant's delay in bringing a claim against additional third parties.
We hold that no such equitable considerations exist here. A reasonable person in plaintiff's position, having discovered a possible causal connection between his injuries and the fact "that the governmental entities were negligent in road and bridge design, failure to repair and maintain, failure to provide proper lighting and drainage," as set forth in his tort claim notices against the governmental entities, would have been aware that the governmental entities may have been responsible for his injuries. By March 2010, plaintiff had sufficient information from the Township and other sources that the potential liability of the governmental entities was reasonably ascertainable. As to Denso, the compressor with the company's label on it was present in the vehicle assumedly from the date of the accident. At the time of the accident or at least by January 2010, when plaintiff regained possession of the Mustang, he could readily ascertain the presence of the compressor and sufficient information about Denso's alleged negligence to have then filed suit.
The motion judge properly accounted for this notion in her decision. We therefore agree with the motion judge's findings, which were based on substantial credible evidence in the record, that (i) plaintiff knew or reasonably should have been aware that the governmental entities were potentially at fault for his injuries, at the date of filing the tort claim notice; and (ii) plaintiff knew or reasonably should have been aware that Denso was potentially at fault for his injuries, in January 2010, when plaintiff regained possession of the car, since the compressor bearing Denso's label was dislodged from the Toyota and hurled through plaintiff's windshield into the back seat. Therefore, under the discovery rule, plaintiff's causes of action against Denso and the governmental entities accrued prior to March 2010, and his March 2012 amended complaint against them was barred by the statute of limitations.
We are particularly reluctant to grant plaintiff's request for a new or broader exception to the statute of limitations. The equities do not favor plaintiff's argument that he could not file suit within the statute of limitations, because of the delay in his discovery of the presence of the Denso compressor and the delay in the receipt of information from the governmental entities. By November 2010, the governmental entities provided plaintiff with sufficient information to form the basis for the filing of a suit. Further, plaintiff's second expert examined the compressor and discovered that it bore Denso's label on June 10, 2011. We agree with the motion judge's determination that plaintiff's March 2012 amended complaint against the governmental entities and Denso was barred by the statute of limitations.
Finally, we address plaintiff's contention that due to plaintiff's injuries he had a mental disability that prevented him from understanding his legal rights or commencing a legal action at the time his cause of action accrued and, therefore, the statute of limitations should have been tolled. N.J.S.A. 2A:14-21. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We note that, notwithstanding his injuries, plaintiff was able to retain counsel, file tort claim notices and also file complaints against several defendants, all within the statutory period.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 2A:14-2(a) (requiring that actions for an injury caused by the wrongful, negligent or default of any person be commenced within two years of the date of the injury).