This case is before me upon motion by defendants for summary judgment upon two grounds: (1) the claim (per quod) of the parents, Harold Knutsen and Rita Knutsen, is barred by the statute of limitations (N.J.S. 2A:14-2 and 2A:14-2.1); and (2) the claim of infant plaintiff Jeffrey Knutsen has been satisfied and discharged by payment of a judgment previously entered in favor of the infant, and that he has therefore received full satisfaction of his claim for personal injuries.
Plaintiffs claim damages for medical malpractice and negligent hospital care resulting in personal injuries allegedly caused thereby to the infant plaintiff. Both parents sue per quod. The named individual defendants are physicians and surgeons licensed to practice medicine in New Jersey. The infant plaintiff was born at defendant Hackensack Hospital on February 7, 1959 and received care there.
This malpractice action was commenced on July 10, 1964 on behalf of the infant plaintiff by his guardian ad litem, and by his parents individually, seeking damages solely for the alleged malpractice and negligent treatment administered by the various defendants
In two prior actions (Dockets Nos. L-1150-59 and L-2607-60, consolidated for trial) suit was instituted by the same plaintiffs to recover damages for personal injuries sustained by the infant plaintiff. One of these suits was by Rita Knutsen and Harold Knutsen, her husband, against Fritz W. Salamon and Stephen Weindorf. The other was by Jeffrey Knutsen, infant, and by Rita Knutsen, individually, against the same defendants, Salamon and Weindorf. The complaints alleged that on January 25, 1959 the
infant plaintiff, while in the womb of his mother, was injured in a three-automobile collision caused by said defendants' negligence, and that he was born prematurely on February 7, 1959 and suffered injuries as a result of the accident. The suit for negligently inflicted prenatal injury and consequent damages, and the suit by the parents arising out of the automobile accident, were consolidated and tried with a jury and resulted in a verdict and judgment on February 19, 1963, as follows: "against the defendants, and in favor of the plaintiff, Jeffrey Knutsen, an infant by his guardian ad litem, Rita Knutsen, for the sum of $17,000; and in favor of the plaintiff, Rita Knutsen, individually, for the sum of $1,700; and the jury having returned a verdict in favor of defendants and against the plaintiff, Harold Knutsen, of No Cause for Action." The plaintiffs received payment, and a warrant to satisfy judgment was filed on July 11, 1963. One year later the instant malpractice suit was commenced.
Defendants' first contention is that the claims of the parents are barred by the statute of limitations. The applicable statute of limitations in a suit for personal injuries based upon the alleged malpractice of the doctors and hospital, N.J.S. 2A:14-2, provides:
"Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued."
The dispositive issue on this motion is whether N.J.S. 2A:14-2.1, effective October 28, 1964, creates a right to sue upon a claim already barred by the statute of limitations. The statute provides:
"Where a parent or other person has a claim for damages suffered by him because of an injury to a minor child caused by the wrongful act, neglect or default of any person within this State, an action at law upon such claim may be commenced by the said parent or other person within the same period of time as provided by law in the case of the said minor child so injured, provided that, if an action is commenced
by or on behalf of the said minor child, the said claim of the parent or other person shall be asserted and maintained in such action brought on behalf of the injured minor child either as a plaintiff or third party plaintiff and if not so asserted shall be barred by the judgment in the action brought on behalf of said injured minor child"
Plaintiffs' contention is briefly summarized in their brief as follows:
"Defendants contend that the parental per quod claim is barred by the Statute of Limitations by virtue of the case of Higgins v. Schneider, 61 N.J. Super. 36 [160 A. 2 d 165] (App. Div. 1960), Affirmed, 33 N.J. 299 [164 A. 2 d 299] (1960) which held that a suit by a parent for injuries to his child if not instituted within two years is barred by N.J.S. 2A:14-2. However, since the enactment of N.J.S. 2A:14-2.1 (L. 1964, c. 214), Higgins no longer controls."
The court disagrees with that contention. The parents' claim was barred when suit was commenced on July 10, 1964. The rule is that when a right of action is barred by a statute of limitations, it cannot be revived by a subsequent act of the Legislature. State, by Parsons v. Standard Oil Co., 5 N.J. 281 (1950), affirmed 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951); Burns v. Bethlehem Steel Co., 20 N.J. 37, 42 (1955). Defendants had a vested right of defense prior to the enactment of N.J.S. 2A:14-2.1, and plaintiff parents' alleged cause of action could not be revived. The motion to dismiss plaintiffs' per quod action is granted.
In support of the motion for summary judgment upon the second ground, i.e., full satisfaction already received by the infant plaintiff, defendants rely upon the pleadings, pretrial order, depositions of Rita and Harold Knutsen, affidavits of Henry G. Morgan, Esq., and William P. Braun, Esq., interrogatories, prior court records (including plaintiffs' motion for a new trial in the prior suits because the verdict was inadequate), medical testimony of Dr. Beaugard, Dr. Winter, Dr. McDonald, Dr. Merliss, and the decision of former Judge Broadhurst denying the motion for new trial.
The court at this juncture is neither called upon nor permitted to make any determination of any disputed material fact. It is sufficient to quote from R.R. 4:58-3:
"* * * The judgment or order sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law * * *."
The moving parties for summary judgment have the burden of establishing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle them to judgment as a matter of law. It is only where it is clear that there are no factual issues in the case that a summary judgment is proper. Moreover, because of the summary nature of the disposition of the issue of the case by motion, such relief is to be granted with much caution so as not to defeat a litigant's right to a plenary trial on the merits. Judson v. Peoples Bank and Trust Company of Westfield, 17 N.J. 67 (1954).
In reviewing the record submitted here to determine whether the issue is thus ripe for summary disposition, the court must have particular concern for the balancing of opposing philosophies brought into focus by the summary judgment procedure, exercising caution to avoid a precipitate stifling of a trial of the issue and yet not hesitating to afford protection against frivolous litigation.
The pivotal question on this motion is whether a judgment against the original wrongdoers, in a suit claiming that all damages resulting from prenatal injuries were caused by such wrongdoers, bars an action subsequently commenced for malpractice against various allegedly negligent physicians and a hospital, claiming aggravation of such injuries and additional injuries. The question is posed because defendants contend that plaintiff has recovered full satisfaction for all his injuries, and that the law does not permit a double satisfaction for the same injuries.
This issue is novel in the sense that the precise question has not been decided in New Jersey. The court is thus required to consider the problem in the light of analogous established precedents. Adherence to established law is a guidepost for the trial judge. Thus, judicial policy has some force with respect to the issue involved in this case, particularly at this juncture of the proceeding involving a motion for summary judgment.
For purposes of this motion the following facts can be taken as established. Rita Knutsen was treated by Dr. Brown for pregnancy commencing in September 1958 and periodically thereafter. While pregnant she was involved in an accident on January 25, 1959 which resulted in a lawsuit on behalf of her infant son, who was prematurely born on February 7, 1959. That action was also brought by Rita Knutsen and Harold Knutsen, individually. It resulted in a judgment against Salamon and Weindorf of $17,000 for the infant and $1,700 for Rita. It can further be taken as established that the infant was treated at Hackensack Hospital from February 7 through March 6, and that the infant was delivered by Dr. Brown. It can also be taken as established that treatment was rendered to the infant by the other defendants at various times between February and July 1959.
The particular acts of alleged malpractice negligence are sufficiently set forth in the moving papers, and the court is not here called upon to decide the underlying dispute between the parties concerning the alleged malpractice. Such facts are not disputed at this juncture by defendants. Indeed, if they chose to dispute any of them, summary judgment would not be warranted. Miller v. Atlantic Cas. Ins. Co., 16 N.J. Super. 531 (Law Div. 1952); ...