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Alfone v. Sarno

Decided: May 4, 1979.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.


This case presents the question of whether the representative plaintiff may sue on behalf of the surviving pecuniary beneficiaries of the deceased under our Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. , where the deceased during her lifetime had obtained a judgment in a personal injury action against defendant, which was ultimately satisfied, based upon the same negligent acts which allegedly caused the death. This precise question has never previously arisen in this jurisdiction.

This is the factual background. On September 8, 1968 plaintiff's decedent, Concetta Alfone, filed a complaint against defendant, Dr. Sarno, alleging negligent treatment with respect to two subtotal thyroidectomies performed on her in 1960 and 1965. At a trial conducted in November 1971 Concetta Alfone contended that the negligent surgical procedures performed by defendant caused damage to or removal of her parathyroid glands, resulting in hypocalcemia, a serious deficiency in the body's calcium supply which resulted in permanent residuals. The jury returned a verdict of $100,000 on the personal injury claim and judgment was entered thereon. Defendant appealed, and in an unreported opinion filed in May 1973 this court reversed on the ground that the trial judge erred in requiring defendant to bear the burden of proving that the action was barred by the two-year statute of limitations for personal injury claims. N.J.S.A. 2A:14-2. On remand the trial judge filed an opinion and entered judgment in March 1974 in favor of defendant on the statute of limitations question. On appeal this court in February 1976 reversed and entered judgment for plaintiff. Alfone v. Sarno , 139 N.J. Super. 518 (App. Div. 1976), certif. den. 71 N.J. 498 (1976).

On March 18, 1974 Concetta Alfone died intestate, survived by her parents and a teenage daughter. Following the

denial of certification in September 1976 defendant paid the judgment plus pre- and post-judgment interest, and a warrant in satisfaction executed in October by the administrator of her estate was filed as evidence thereof.

On March 11, 1976 Concetta's father, Alphonse Alfone, filed this action as administrator ad prosequendum , alleging her wrongful death as a result of the malpractice of defendant established in the prior action. Defendant filed a motion for summary judgment, contending that the successful prosecution of the personal injury action to a satisfied judgment barred an action under our Wrongful Death Act on the part of the alleged pecuniary beneficiaries, decedent's parents and child, where the cause of action for death was based on the same allegation of negligence as the personal injury action. The trial judge granted defendant's motion and plaintiff appeals.

Because of the possible pertinence of the allegations and proofs on the elements of damages at the trial of the personal injury action in 1971 to the potential damages recoverable on behalf of the alleged pecuniary beneficiaries in this action we have expanded the record on this appeal to include portions of the record of that trial. At the personal injury trial Concetta Alfone claimed damages for pain and suffering, temporary and permanent disability, and past and future medical expenses. Past medical expenses were stipulated at $24,000 to date of trial. Future medical expenses were in substantial dispute but could have been estimated at $30 to $40 a week. The standard jury charge on normal life expectancy was given -- the jury was told that a woman of plaintiff's age, then 32, had a life expectancy of 44.1 years under the mortality tables appended to our court rules. Plaintiff's case was not presented on any serious contention of substantial foreshortening of her life from defendant's malpractice, either as a likely occurrence or in itself as a discrete element of damage. There was no evidence of any past lost earnings or of any loss of future earnings offered at the trial. Nor did plaintiff contend for the loss of any

future earning capacity as an element of damages by proof or in summation. The trial judge properly did not instruct the jury to consider any past or future economic loss to Concetta Alfone as part of its verdict, the proofs being barren as to those elements of damages.

The early common law allowed no action for the death of another, under the maxim actio personalis moritur cum persona.*fn1 The law changed in England with the passage of the first wrongful death statute in 1846, known as Lord Campbell's Act, 9 and 10 Vict. , c. 93. New Jersey adopted a statute essentially similar to Lord Campbell's Act in 1848, Gen. Stat. p. 1188, ยงยง 10, 11. See Cooper v. Shore Electric Co. , 63 N.J.L. 558, 562-563 (E. & A. 1899). Despite many amendments over the past 120 years, our act retains much of the flavor of Lord Campbell's Act. Most pertinent to the present inquiry, N.J.S.A. 2A:31-1 provides:

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury , the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured * * *.*fn2 [Emphasis supplied]

The question here is whether the cause of action is, in view of the emphasized language, totally derivative from the rights possessed by decedent as of the time of death or is independent of decedent's rights -- a separate cause of action inhering in the beneficiaries. Defendant takes the first stated position, arguing from the literal language of the statute that since decedent could no longer have maintained another action once she recovered judgment in her original action, the mandate of the statute bars a subsequent wrongful death action.

Certain basic principles as to the law of damages under our Wrongful Death Act bear discussion at this point. The fundamental aim of our act is compensation for the pecuniary losses suffered by the survivors of those killed by wrongful acts. Tenore v. Nu Car Carriers , 67 N.J. 466, 473 (1975); N.J.S.A. 2A:31-4 and 5. The amount of recovery is based upon the contributions, reducible to monetary terms, which the decedent reasonably might have been expected to make to the survivors. Dubil v. Labate , 52 N.J. 255, 259 (1968). "This has been interpreted to mean the 'deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased.'" McStay v. Przychocki , 7 N.J. 456, 460 (1951), quoting Carter v. West Jersey & Seashore R.R. Co. , 76 N.J.L. 602 (E. & A. 1908). Damages are awarded only for pecuniary loss and do not include injury to the feelings, mental suffering or loss of society and companionship. Graf v. Taggert , 43 N.J. 303, 308-309 (1964) (see discussion at note 1 on the relatively limited scope of damages under the act). Cooper v. Shore Electric Co., supra , 63 N.J.L. at 567; Burd v. Vercruyssen , 142 N.J. Super. 344, 355-356 (App. Div. 1976), certif. den. 72 N.J. 459 (1976). Damages

may include the monetary value of loss of services, such as the economic worth of services of a deceased mother to her minor children, Carter v. West Jersey & Seashore R.R. Co., supra , 76 N.J.L. at 603, but such recovery "is solely for pecuniary loss * * * but it does not include loss of companionship and society as such." Russell v. Salem Transportation Co., Inc. , 61 N.J. 502, 508 (1972). Economic dependency, however, is not the sole basis for damages for pecuniary loss; minor children may recover the pecuniary value of the loss of the care, guidance and advice of a parent during their minority. Suarez v. Berg , 117 N.J. Super. 456, 462 (App. Div. 1971).*fn3 Additionally, the statute permits an award of "the hospital, medical and funeral expenses incurred for the deceased." N.J.S.A. 2A:31-5.*fn4

Our Wrongful Death Act carries its own period of limitations, requiring that suit be brought within two years of death. N.J.S.A. 2A:31-3. The action is brought in

the name of the deceased's representative, N.J.S.A. 2A:31-2, for the exclusive benefit of those entitled to take any intestate personal property of the decedent, with those actually dependent having priority. N.J.S.A. 2A:31-4. Our Supreme Court has stated that the act is remedial in nature and is to be liberally construed to effectuate its beneficent object, but because it is in derogation of the common law its remedies are not to be extended beyond their fair intendment. Turon v. J. & L. Construction Co. , 8 N.J. 543, 558 (1952). The Wrongful Death Act is distinct from the so-called "survival action," N.J.S.A. 2A:15-3, which gives executors or ...

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