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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
Somerset and to determine when plaintiff should have reasonably known of facts supporting a cause of action against Somerset to start the running of the statute of limitation.
The application of the discovery rule may result in different dates for the accrual of a cause of action against different parties. As noted above, the discovery rule delays accrual of a cause of action "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that [he or she] may have a basis for an actionable claim." Lopez supra, 62 N.J. at 272.
Plaintiff certified that he did not have any knowledge of possible negligence by Somerset until he contacted Mr. Leifer on August 31, 2000. We note, however, that we have an incomplete record as the parties failed to submit to us a statement of material facts, which is required on the filing of a motion for summary judgment, that could have enabled us to decide this issue. Consequently, a remand is necessary for the trial court to determine the application of the discovery rule as to Somerset and when the cause of action arose against Somerset.
In summary, the members of the Court being equally divided, the judgment dismissing the complaint against Harborside is affirmed. The matter is remanded for the trial court to determine when the cause of action arose against Somerset.
CHIEF JUSTICE PORITZ and JUSTICES WALLACE and RIVERA-SOTO join in the PER CURIAM opinion in its entirety. JUSTICES LONG, ZAZZALI, and ALBIN join only in that part of the opinion relating to the issue of the timeliness of the complaint against Somerset. CHIEF JUSTICE PORITZ and JUSTICES WALLACE and RIVERA SOTO also filed a separate concurring opinion. JUSTICE ZAZZALI filed a separate opinion concurring in part and dissenting in part, in which JUSTICES LONG and ALBIN join. JUSTICE LaVECCHIA did not participate.
PORITZ, C.J., WALLACE, J., and RIVERA-SOTO, J., concurring.
We would affirm the judgment of the Appellate Division granting summary judgment in favor of Harborside based on our concurrence with the trial court's conclusion that plaintiff exceeded the statute of limitations time period for filing his complaint against Harborside.
We agree with the trial court and the Appellate Division that applying the objective standard of what a reasonable person knew or should have known from the surrounding facts, Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000), plaintiff provided no adequate basis for the application of the discovery rule to save his complaint against Harborside. In rendering its decision, the trial court stated:
Here, Burns had trouble breathing on April 15, 1999, possibly stemming from the tracheotomy tube and it not being suctioned. This was told to plaintiff and plaintiff read Burns' note and made his own observations. Plaintiff knew of defendant's cause of death, heart attack brought on by respiratory complications. Plaintiff knew or should have known that Harborside's actions or lack thereof was actionable at that time. Clearly, plaintiff's claim that he did not know a cause of action accrued until he talked to David Alperts or his present counsel is insufficient as a matter of law to toll the statute of limitations.
Before us, plaintiff also urges that he was misled by the nursing staff at Harborside on April 15, 1999, when he was told that Burns was receiving respiratory care as often as permitted by the physician's orders. We would reject that claim.
In his deposition, plaintiff stated that prior to that conversation, plaintiff asked the nurse on duty if she would suction Burns and the nurse replied, "I just did." Afte
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