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Lawlor v. Cloverleaf Memorial Park Inc.

Decided: May 7, 1968.

EDITH LAWLOR AND C. LLOYD LAWLOR, HER HUSBAND, PLAINTIFFS,
v.
CLOVERLEAF MEMORIAL PARK, INC., A CORPORATION, AND CLOVERLEAF MEMORIAL PARK ASSOCIATION, DEFENDANTS, AND THIRD PARTY PLAINTIFFS, V. JOSEPH LA PREE AND RAHWAY HOSPITAL, THIRD-PARTY DEFENDANTS



Halpern, A.j.s.c.

Halpern

These are companion motions by the third-party defendants for summary judgment dismissing plaintiffs' claims as barred by the statute of limitations.

The undisputed facts are that on September 6, 1964 plaintiff Edith Lawlor allegedly fell and suffered personal injuries while visiting a gravesite at Cloverleaf Memorial Park. She was admitted that day as a patient to Rahway Hospital (hospital) and was treated there by Dr. Joseph La Pree (doctor). She was discharged from the hospital on October 17, 1964. On February 16, 1965 plaintiffs sued Cloverleaf Memorial Park, Inc. and Cloverleaf Memorial Park Association (cemetery), seeking damages for the injuries sustained.

Answers were filed and the case was pretried and placed on the trial calendar. On the eve of trial the original defendants were granted leave to file a third-party complaint against the hospital and the doctor for indemnification and contribution. On July 5, 1966 the third-party complaint was duly filed. On December 23, 1966 Mrs. Lawlor died.

On January 26, 1968 three motions were heard and disposed of as follows:

1. Defendant Cloverleaf Memorial Park, Inc. was granted summary judgment dismissing the complaint as to it upon the ground that it did not own, operate or maintain the area at the time decedent had fallen. Leave has not been sought to appeal this ruling to the Appellate Division and for purposes of this opinion it is no longer involved in this case.

2. Defendant Cloverleaf Memorial Park Association (cemetery) was granted summary judgment dismissing the complaint as to it because of the applicability of the Charitable Immunity Act N.J.S. 2 A:53 A -7 et seq. Plaintiff was granted leave to appeal this ruling by the Appellate Division of the Superior Court and is now awaiting hearing.

3. Plaintiff was granted leave to amend the complaint to (a) substitute C. Lloyd Lawlor, as executor, in place of Edith Lawlor and to sue the doctor and the hospital directly under the Survival Act for their alleged negligence and malpractice, and (b) to add an additional count against the original defendants and the third-party defendants, under the Wrongful Death Act, for allegedly causing the decedent's death.

The amended complaint was duly filed, as were the answers of the doctor and the hospital denying liability. Both third-party defendants, now direct defendants, pleaded the statute of limitations, and by these motions seek to dismiss the amended complaint.

The issues raised by these motions are:

1. Is plaintiff precluded by the statute of limitations from asserting the survival claims directly against the doctor and the hospital?

2. Is the wrongful death action barred by the statute of limitations when it is brought within two years of decedent's death?

I

SURVIVAL ACTION PURSUANT TO N.J.S. 2 A:15-3 AGAINST THE DOCTOR AND HOSPITAL.

The applicable statute of limitations in a suit for personal injuries, N.J.S. 2 A: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 two years next after the ...


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