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Burd v. New Jersey Telephone Co.

Decided: May 23, 1978.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 20 (1977).

For affirmance -- Justices Sullivan, Clifford and Schreiber and Judge Conford. For reversal -- Chief Justice Hughes and Justices Pashman and Handler. The opinion of the Court was delivered by Conford, P.J.A.D. (temporarily assigned). Clifford, J., concurring. Justice Schreiber joins in this concurring opinion. Pashman, J., dissenting. Chief Justice Hughes and Justice Handler join me in this opinion. Handler, J., dissenting. Justice Pashman joins in this opinion.


This appeal calls for further particularization of the rationale of the discovery rule in personal injury litigation as laid down in Lopez v. Swyer, 62 N.J. 267 (1973). The essence of the rule was there stated: "* * * in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Id. at 272.

In this case plaintiff sustained a heart attack while gluing together lengths of pipe and laying them in an open trench. Plaintiff's contention is that the glue contained a gaseous substance, THF, which, under the particular circumstances in which he was working, was a causative factor in bringing about the heart attack. This tort action, following a workers' compensation proceeding against plaintiff's employer, was brought against the defendant telephone company, with which plaintiff's employer had contracted for laying the pipe, and defendant Continental Can Company, whose subsidiary produced the glue in question. After the trial court denied a motion for dismissal based upon the statute of limitations, a trial jury found for the plaintiff against both defendants in the sum of $100,000 damages. A motion for a new trial was denied, and defendants appealed to the Appellate Division.

The issue of limitations was based on defendants' contentions (a) that the cause of action accrued when the heart attack occurred, September 7, 1971, whereas the action was not instituted until May 16, 1974, more than two

years later; (b) in the alternative, assuming the validity of plaintiff's contention that he neither was nor should have been aware of the relationship of the glue being used in the trench to the heart attack until October 7, 1972, when his counsel received a medical report indicating the likelihood of such a link, nevertheless plaintiff had a reasonable opportunity to institute action prior to expiration of the normal two-year period after the injury.*fn1 Therefore the action was barred on limitation grounds on one or the other of these postulates. N.J.S.A. 2A:14-2.

The Appellate Division held plaintiff barred by limitations on the ground that, conceding plaintiff did not know of the connection between the presence of the glue and the heart attack, under all the circumstances plaintiff "should have known that he 'may have a basis for an actionable claim'" [quoting Lopez ] on the date of the heart attack. 149 N.J. Super. at 34. We granted certification. 75 N.J. 21 (1977).

We concur in the result arrived at by the Appellate Division, but partly on the basis of express findings of fact made by the trial judge which we regard as adequately supported by the evidence but as inconsistent with the ultimate determination of the judge against the bar of limitations. Our conclusions require some rehearsal of the pertinent evidence. Some of the facts relevant to the discovery problem were recited in the Appellate Division opinion:

Plaintiff had been on this job for approximately one week at the time of his heart attack. He worked on a trench which was 5' deep and 18" wide. His job was to glue together the ends of pieces of plastic pipe, using the pipe and the glue supplied by New Jersey Telephone Company. He may also have done some shovelling and levelling.

The pipes were made of light plastic material and were 4" in diameter. Each section was 20' long and about 220' of pipe would be laid in an average day. The pipes were laid two across and eight

high. Thus, plaintiff would glue approximately 176 pipe connections daily. No ventilating equipment was provided for use in the trench.

The temperature was in the 80s on the day of plaintiff's heart attack and he was working in a direct sunlight, causing him to sweat profusely. Burd returned from his lunch break at about 12:30 P.M. but stopped working at 12:45 due to dizziness and pains in his upper torso. At 3:45 P.M. he was admitted to the hospital. The ultimate diagnosis was acute myocardial infarction with congestive heart failure.

He had worked two prior jobs using the same solvent cement and had been using it for two days on this job prior to his heart attack. He would begin to feel dizzy about 1 1/2 hours after commencing work with the glue. The dizziness would subside about one hour after he finished work.

In response to a hypothetical question Dr. Kaplan concluded that plaintiff's exposure to an excessive concentration of THF was a substantial contributing factor to his heart attack. He conceded that his opinion was premised upon the assumptions that the concentration of THF was excessive and that plaintiff's blood pressure and hemoglobin count had fallen as a result of his exposure to it.

It was stipulated that plaintiff first consulted an attorney shortly before the worker's compensation case was filed in May 1972. He was examined by Dr. Kaplan on August 21, 1972 for worker's compensation purposes. Plaintiff testified that he first learned of a possible link between the glue and his heart attack during a conversation which took place in October 1972 with his attorney in the compensation case. He further testified that he was not aware that the lightheadedness he had experienced on the job was caused by the glue.

It is significant that plaintiff had the can of glue in his possession from five days prior to his heart attack until he turned it over to his present counsel in May 1974. The can contained a warning "Caution: * * * Avoid inhaling fumes * * *," and plaintiff concededly read this legend before he used it in the trench. In fact, plaintiff testified that if it had said "Danger," "toxic," or "adequate ventilation required" he would not have used it in the trench. While he was using the glue in the days just prior to his heart attack he felt dizzy, lightheaded, angry and mean. These symptoms cleared up within an hour or so after leaving his work.

149 N.J. Super. at 24, 25, 27, 28, 34.

In addition to the foregoing, we take notice of plaintiff's admission, upon confrontation during cross-examination

with prior testimony on depositions: "'* * * think back on the first day that you were on the Chester job gluing pipe on that particular day, did you experience dizziness or lightheadedness while you were using the glue', and you responded yes, meaning you did experience light headedness from using the glue." A. "I did." Moreover, when examined by Dr. Kaplan for the workers' compensation case, plaintiff told him, "I became dizzy and lightheaded while I was using the glue, gluing the pipe and putting the pipe together."

In arriving at his determination in favor of plaintiff on the limitations question, the trial judge said, pertinently:

I believe he [plaintiff] knew in his appraisal of his work employment that this material played some part in whatever occurred to him but that does not necessarily mean that he knew he had a cause of action in that complex field of product liability that indeed he would instruct his barrister to go forth immediately.

He was not his own solicitor.

In this particular situation it is apparent that Mr. Domareki [plaintiff's compensation lawyer] as far as the product liability type situation amounted as a conduit of advice to Mr. Burd and that he was like a solicitor, he would see that the matter did get to the proper man to bring it before the court in a proper case.

We will go back to what Mr. Burd knew or should have known. Would he know in the complex and ever-evolving field of products liability that he had a cause of action against a company in Oklahoma that had a branch in Connecticut? Would he know that? Would he know from the label that all he was supposed to do was to avoid inhaling? Did he know about the studies in Germany that occurred as far as the dogs were being affected and their cardiovascular system? Did he know all ...

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