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Ackerman v. Lagano

Decided: December 19, 1979.


Gibson, J.s.c.


The within matter represents a countersuit arising out of a pending medical malpractice claim. Plaintiff, a physician, asserts that he was wrongfully named as a defendant in the prior action and now sues plaintiffs in that action as well as their attorney. Several theories have been advanced in support of this cause, including negligence, wilful, wanton and gross negligence, malicious prosecution and malicious use of process. Defendant attorney has moved for summary judgment. Raised by this motion are several issues, certain of which do not appear to have been resolved by any reported decision in the State.

For purposes of the within motion, the material facts are not in dispute, R. 4:46-2, and they may be summarized as follows: Rita and Angelo Lagano, through their attorney, Robert Bradley Blackman, instituted an action in the Superior Court against the Atlantic City Medical Center, Dr. Milton Ackerman and others. In that action they allege that Mrs. Lagano underwent a needless hysterectomy because of the failure of defendants to use ordinary care in the conduct of pre-operative laboratory tests. Dr. Ackerman was the Director of Laboratories at the medical center at the time and was joined as an individual defendant. He subsequently moved for summary judgment concerning his individual liability. His motion, unopposed by the Laganos, was granted. The within suit was then instituted, the remainder of the malpractice action still pending.


The initial question to be resolved is whether an attorney can be held civilly liable to one, other than his client, who claims to have been damaged as a result of the alleged negligence of that attorney in the conduct of his professional duties. Traditionally, this question has been answered in the negative based, among other things, on the lack of privity between the parties. See Annotation, "Attorneys-Liability to Third Parties," 45 A.L.R. 3d 1181 (1972); 7 Am.Jur. 2d, Attorneys at Law , ยง 167

(1963). More recently, as the requirement for privity has been eased generally, the circumstances under which attorneys may be held liable to third parties has been broadened. Annotation, 45 A.L.R. 3d, supra at 1184-1185. Although New Jersey is among those states which have recognized a broader base of liability, Stewart v. Sbarro , 142 N.J. Super. 581 (App.Div.1976), the circumstances under which that liability may exist are still relatively narrow.

In this case there is no suggestion of any fiduciary relationship between Dr. Ackerman and the movant. Nor is there any claim of reliance. Indeed, the very nature of the adversary process would preclude reliance by opposing parties. Bickel v. Mackie , 447 F. Supp. 1376, 1381 (N.D.Iowa, 1978). What is being suggested here is that defendants wrongfully brought the action and that their attorney negligently investigated the facts, thereby improperly joining Dr. Ackerman in his individual capacity. Actions for the wrongful institution of judicial proceedings, however, are cognizable in this State only in the form of a suit for malicious prosecution. As recently noted, this still remains the "sole theory of redress" for someone who has been injured by such an action. Devlin v. Greiner , 147 N.J. Super. 446, 469 (Law Div.1977); see also, Norton v. Hines , 49 Cal.App. 3d 917, 123 Cal.Rptr. 237 (Ct.App.1975), where it was pointed out that a contrary rule would have the effect of denying the public free access to the courts.

For these reasons, therefore, plaintiff's complaint against the movant, to the extent that it alleges a cause of action based on negligence, must fail.

Gross Negligence

As previously indicated, plaintiff's complaint asserts not only negligence but also wilful and wanton and gross negligence. However, it does not make any difference whether the allegations of wrongdoing are couched in terms of simple negligence or gross negligence. Both theories assume the existence of a duty between an attorney and third persons which simply does not exist in this setting. See, generally, Annotation, 45 A.L.R. 3d, supra; Devlin v. Greiner, supra. This is not to say that attorneys can show a complete disregard for the rights of a prospective defendant since, as will be seen from the discussion which follows, malicious prosecution remains as an available remedy.

Malicious Prosecution and Malicious Use of Process

As noted, the complaint here includes allegations of malicious prosecution. Given the limited extent to which attorneys may be liable to persons other than their clients, however, one may question whether such an action will lie. Annotation, 45 A.L.R. 3d, supra. Research has not revealed any New Jersey cases which have articulated the issue within this context, but that is not to say that the court is without guidance. In Earl v. Winne , 14 N.J. 119 (1953), for example, the Supreme Court reversed a trial court dismissal of an action for malicious prosecution against the prosecutor in a criminal libel case. It was noted there that ...

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