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Rosenberg v. Town of North Bergen

Decided: July 19, 1972.

FRANCES ROSENBERG, PLAINTIFF-RESPONDENT,
v.
TOWN OF NORTH BERGEN, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT, PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT, NEW JERSEY ASPHALT AND PAVING COMPANY AND LETTIERI AND BELLEZZA COMPANY, DEFENDANTS-APPELLANTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Mountain, J.

Mountain

Plaintiff, Frances Rosenberg, sued for personal injuries which she sustained as the result of a fall on Bergenline Avenue in North Bergen on June 6, 1968. At the time of the accident she was crossing the street from west to east in order to reach a Public Service bus stop. The roadbed of this highway had been repaved about 1935 to provide, on either side of a center line, three contiguous lanes of concrete. Some time before the accident the two easternmost lanes had parted, leaving a fissure between them. The plaintiff caught her heel in this opening and fell. In her action she joined as defendants New Jersey Asphalt & Paving Company (Asphalt Co.), which had done the paving work, its successor in interest, Lettieri and Bellezza Company (Lettieri Co.), the Township of North Bergen and Public Service Coordinated Transport.

The defendant municipality and Public Service each moved for summary judgment. The municipality's motion was denied and that of Public Service was granted. Neither of these rulings has been brought before us on this appeal.

At the same time motions for summary judgment were also brought by Asphalt Co. and Lettieri Co. on the ground that any claim of this plaintiff against either of these corporations was barred by N.J.S.A. 2A:14-1.1.*fn1 Both of

these motions were granted whereupon plaintiff sought leave to appeal to the Appellate Division. The application having been granted, that court reversed the action of the trial judge and remanded the cause for a disposition on the merits, 115 N.J. Super. 322 (App. Div. 1971). We granted the joint petition of Asphalt Co. and Lettieri Co. for certification. 59 N.J. 364 (1971).

In its opinion reversing the trial court, the Appellate Division, as a matter of statutory construction, determined that a road or highway is not "an improvement to real property" within the meaning of the statute. 115 N.J. Super., supra, at 325. It was therefore unnecessary for that court to reach the issue as to whether or not the statute is unconstitutional, as urged by the plaintiff. Id. at 326.

This statute, N.J.S.A. 2A:14-1.1, took effect May 18, 1967. The available materials touching its legislative history are meager and unrevealing. We are aware, however, that between 1964 and 1969 some thirty states adopted identical or similar statutes. Comment: Limitation of Action Statutes for Architects and Builders -- Blueprint for Nonaction. 18 Catholic U.L. Rev. 361 (1969). Other states have since done likewise.

It appears probable that two rather recent but unrelated developments in the law may well have provided the motivation for this widespread legislation. The common result of the developments to which we refer has been to enlarge very appreciably the area of potential liability to which architects and building contractors, among others, may be liable. We think it likely that these statutes are a legislative response seeking to delimit this greatly increased exposure. In order to afford background against which to discern more clearly what may have been the legislative intent in passing

this act, we take brief note of these two changes in the law as they have come about here in New Jersey.

The first of these developments has taken place in the field of limitation of actions and is commonly referred to as the "discovery" rule. In New Jersey the first case of this kind was Fernandi v. Strully, 35 N.J. 434 (1961). Here a wing nut had been negligently allowed to remain in the plaintiff's abdomen following an operation. Upon its discovery she instituted suit. Our two-year statute of limitations would have barred the plaintiff's right to recover if the cause of action were held to have accrued at the time of the operation, but not if the right to sue were found not to have arisen until plaintiff discovered what had occurred. This court adopted the latter view as being more just and equitable. In a comprehensive opinion, containing a wide review of the authorities, Justice Jacobs analyzed the conflicting policy arguments and held, for the court, that at least in foreign body malpractice cases the statute of limitations should not be held to commence to run until the victim discovers, or should have discovered, the wrong that has been inflicted.

In Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N.J. 130 (1968), plaintiffs suffered property damage when a water meter in their home broke. The meter had been purchased from Worthington Gamon Water Company by the City of New Brunswick in 1942 and installed in plaintiffs' home in 1950. The meter ruptured, causing damage, in 1964. The Law Division granted Worthington's motion for summary judgment on the ground that plaintiffs' claim was barred by the applicable six-year statute of limitations. N.J.S.A. 2A:14-1. The Appellate Division reversed insofar as plaintiffs' claim was based upon negligence but affirmed insofar as it rested on the theory of strict liability in tort. This court held that neither claim was ...


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