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Sobin v. Frisch

Decided: December 15, 1969.


Goldmann, Lewis and Matthews. The opinion of the court was delivered by Matthews, J.A.D.


[108 NJSuper Page 100] Plaintiffs John Sobin, Jr. (John) and Harriet Sobin (Harriet) appeal, pursuant to leave granted under former R.R. 2:2-3(a) (now R. 2:2-4), from an

order for summary judgment granted by the trial court in favor of defendant Jones & Laughlin Steel Corporation (Jones & Laughlin). The trial judge found, as a matter of law, that plaintiffs' amended complaint, asserting causes of action against Jones & Laughlin was barred by the statute of limitations. (N.J.S.A. 2A:14-2)

The facts were undisputed at the argument on the motion below, and on this appeal. John, who was a tree trimmer, was rendered unconscious and injured on April 12, 1966, when he fell from a tree in which he was working. He was removed from the scene of the accident to Middlesex General Hospital in a state of unconsciousness. He was admitted to the hospital with a concussion of the brain, an imparted intertrochanteric fracture of the hip and an open fracture of the right upper extremity. He remained in the intensive care unit for approximately two months, during which time he was visited by his attending physician daily. While in intensive care, John remained either totally unconscious or, toward the end of his stay in the unit, in a state of semiconsciousness. On June 16, 1966 he was removed from the intensive care unit, even though his actions were irrational and he had failed to respond verbally to any stimulus. Subsequent attempts were made by his physician to have John respond to verbal stimuli. When non-verbal responses were elicited, they were totally irrational. The attending physician's affidavit, filed with the trial court, stated that during John's entire hospitalization in intensive care and for some period thereafter, he neither was able to comprehend his own situation or condition, nor was he able to respond to any attempt to communicate with him. Portions of the hospital record incorporated in plaintiff's appendix disclose that the condition just described persisted for upwards of 100 days.

John, in an affidavit also filed with the trial court, stated that he had no recollection of events subsequent to his fall until a few days prior to his release from the hospital on July 28, 1966, when he remembers wanting to go home and

being very happy about being released. He also stated that he did not recognize his home when he arrived there.

This action originally was instituted on August 17, 1967. M. Frisch & Sons was the only defendant named in the complaint. In the first count, John alleged that defendant was negligent in selling certain rope to him which became brittle and dry and thereafter broke, causing him to fall and suffer injuries. In the third count, John claimed a breach of warranty of merchantability, alleging that defendant sold the aforementioned rope to him knowing the use for which it was required and representing at the time of the sale that the rope was fit for the purpose for which it was to be used. In the second and fourth counts, Harriet sued per quod.

We are advised by counsel for plaintiffs that the action was not instituted against Jones & Laughlin for at least two reasons. First, that it was unknown, at the time, who manufactured the rope and distributed it to defendant M. Frisch & Sons. Second, because the distributor was regarded as a mere conduit, it was decided that it would not be liable in breach of warranty action. Early in April 1968, plaintiffs' counsel discovered that the rope purchased by John, after expert examination, was "sisal" rather than "manila" as represented, and that Jones & Laughlin was the distributor which represented the rope to have been "manila", and sold it as such to defendant M. Frisch & Sons. Plaintiffs then moved for, and were granted, leave to file an amended complaint to include Jones & Laughlin as a defendant. The order permitting the filing of the amended complaint was entered May 1, 1968. The amended complaint was filed May 16, and served May 17, 1968, the latter date being two years and 35 days after the date of the fall complained of.

The trial judge held that the provisions of N.J.S.A. 2A:14-21, pertaining to disabilities, were not meant to cover the type of situation present here, and concluded that the statute of limitations will not be tolled because of unconsciousness, particularly where it lasted for only about 35

days. We note that in this latter observation, the trial judge was in error since the record undisputedly discloses that John was unconscious for upwards of 100 days.

N.J.S.A. 2A:14-2 requires that every action at law for an injury to the person be commenced within two years after such cause of action shall have accrued. Clearly, it would cover the claims asserted in both the original and amended complaints filed by plaintiffs. Burns v. Bethlehem Steel Co. , 20 N.J. 37, 42 (1955). The general question presented here, however, is whether the time for the commencement of the action against defendant Jones & Laughlin Steel ...

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