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Alfone v. Sarno

Decided: July 20, 1981.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 168 N.J. Super. 315 (1979).

For modification and affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For reversal -- Justice Clifford. The opinion of the Court was delivered by Pashman, J. Clifford, J., dissenting.


This case required us to consider the scope of the statutory action for wrongful death, N.J.S.A. 2A:31-1 to -6. At issue is whether a judgment for damages in a personal injury suit brought by the decedent during her lifetime precludes a later action for wrongful death on behalf of her heirs or dependents. We hold that a death action may be brought if the recovery is tailored to avoid duplicating elements of damages which comprised or could have comprised the earlier judgment.



The underlying facts are not in dispute. Plaintiff is the general administrator and administrator ad prosequendum of the estate of his deceased daughter, Concetta Alfone. In his suit he alleges that his daughter's death in 1974 was the result of the negligence of defendant Anthony Sarno, M.D., in performing a subtotal thyroidectomy in 1965. This alleged malpractice was the subject of a prior action commenced by Concetta in 1968.*fn1 At a jury trial she obtained a general verdict in the amount of $100,000 that was upheld on appeal after her death. See Alfone v. Sarno, 139 N.J. Super. 518 (App.Div.), certif. den., 71 N.J. 498 (1976). Following our denial of certification, plaintiff executed a warrant in satisfaction of the judgment that was filed in October 1976. He had commenced the present wrongful death action about six months before.*fn2 In it he sought damages for funeral expenses and pecuniary injuries to decedent's mother, father and teenaged daughter. See N.J.S.A. 2A:31-1, -4, -5.

At the conclusion of the earlier trial for decedent's personal injuries, the court instructed the jury that any award of damages should consist of the following:

(1) "fair and reasonable compensation for any temporary or permanent injury resulting in disability to or impairment of [decedent's] faculties, her health, or her ability to participate in activities";

(2) "fair and reasonable compensation for her pain, suffering, discomfort and distress, past, present and future";

(3) "medical and hospital expenditures incurred in the past";

(4) "an allowance for reasonably anticipated medical services and medications."

The Appellate Division found that the damages presently sought would not duplicate any portion of the recovery in the personal injury action, see 168 N.J. Super. 315, 332 (App.Div.1979), and defendant has not challenged that finding.

Defendant moved for summary judgment in the present action, contending that the judgment in the former personal injury action barred a wrongful death claim arising from the same allegations of negligence. The trial court agreed and granted judgment for defendant on May 30, 1978. The Appellate Division reversed. 168 N.J. Super. 315 (1979). In large measure the court based its decision on dictum in this Court's opinion in Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 343-45 (1970). There we had questioned prior cases characterizing a wrongful death action as wholly derivative from the decedent's claims for personal injuries. Id.; see, e.g., Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333 (E. & A. 1933).

We granted defendant's petition for certification. 81 N.J. 332 (1979).


Independent Aspects of the Wrongful Death Action

Whether the present wrongful death suit may be maintained depends on the relationship between that statutory action and a claim for the decedent's personal injuries. We therefore initially direct our inquiry to New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1 to -6.

At early common law, the theory that death extinguished a personal right of action barred any claim for wrongful death. See, e.g., 1 S. Speiser, Recovery for Wrongful Death, §§ 1:1 to 1:9 at 2-30 (2d ed. 1975). Early precedents in this State have held that no action lies for the death of another except as provided by statute. See, e.g., Myers v. Holborn, 58 N.J.L. 193 (E. & A. 1895).*fn3 The model for this State's original wrongful death statute, L. 1848, p. 151, was an 1846 act of the British Parliament entitled "An Act for compensating the Families of Persons killed by Accidents" and universally known as Lord Campbell's Act, 9 & 10 Vict., c. 93. As enacted in 1846, section one of Lord Campbell's Act provided in relevant part:

[W]hensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured * * *. [emphasis added]

While our wrongful death statute has been amended at various times since its original passage in 1848, see, e.g., L. 1960, c. 194; L. 1948, c. 429, the current enactment, N.J.S.A. 2A:31-1 to -6, maintains many of the features of Lord Campbell's Act. This similarity becomes clear by a comparison of Lord Campbell's Act with the following pertinent language of N.J.S.A. 2A:31-1:

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 * * *. [emphasis added]

Essentially the issue before us is one of statutory interpretation: whether the emphasized language above means that a death action is wholly derivative from whatever right of action the decedent possessed when he died. In other words, the

question is whether the statutory death action depends completely upon the decedent's right to sue for his own injuries at the time of his death. If such dependence exists, a judgment in a personal injury action by the decedent would extinguish both the decedent's right to bring a second suit and any subsequent statutory action for wrongful death.


Although no New Jersey decision has addressed the precise issue of preclusion we consider today, prior to our decision in Lawlor v. Cloverleaf Memorial Park, supra, our courts accepted the notion that the death action is wholly derivative. In Knabe v. Hudson Bus Transportation Co., supra, the Court of Errors and Appeals followed this view in deciding that the decedent's failure to bring a timely personal injury action while alive barred a subsequent suit for his wrongful death. 111 N.J.L. at 335; see also Biglioli v. Durotest Corp., 44 N.J. Super. 93, 105 (App.Div. 1957), aff'd on other grounds, 26 N.J. 33 (1958); Redick v. Rohm & Hass Co., 97 N.J. Super. 58, 60-61 (Law Div. 1967); Coulter v. New Jersey Pulverizing Co., 11 N.J.Misc. 5 (Sup.Ct.1932). Similarly in Libera v. Whittaker, Clark & Daniels, Inc., 20 N.J. Super. 292 (Law Div. 1952), the court held that a pre-death settlement and release of a personal injury claim would bar a subsequent action for wrongful death on the same negligent acts. Id. at 295; see also McKeering v. Pennsylvania R.R. Co., 65 N.J.L. 57 (Sup.Ct. 1900). These cases prompted the Third Circuit to hold that New Jersey law barred a wrongful death action where the decedent had obtained a judgment for his injuries during his lifetime. Roberts v. Union Carbide Corp., 415 F.2d 474 (3d Cir. 1969).*fn4 The holdings in these cases were in harmony with the majority of courts construing cognate wrongful

death statutes. See S. Speiser, supra, §§ 5:14, 5:20 at 613, 631; 2 F. Harper & F. James, The Law of Torts, § 24.6 at 1291-92 (1956) and id. at 133 (Supp. 1968); Annot., 39 A.L.R. 579 (1925). Nevertheless in Lawlor v. Cloverleaf Memorial Park, supra, this Court questioned the soundness of these holdings. 56 N.J. at 344-45.

In Lawlor we held that where a survival action arose after a suit had been commenced by the decedent while alive, an additional claim for wrongful death against existing third-party defendants would relate back to the time decedent commenced the original personal injury action. The Court therefore reversed the Appellate Division's ruling that the new claim was barred by the statute of limitations. 56 N.J. at 345. Because of this holding, it was unnecessary for the Court to decide whether a wrongful death claim would be barred where a personal injury or survival claim has been brought too late. Nevertheless, the Court reexamined the traditional notion that a death action is wholly derivative from a right to sue for personal injuries. It questioned the reliance of earlier decisions on the following language of the wrongful death statute:

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 * * *. [56 N.J. at 344 (quoting N.J.S.A. 2A:31-1) (emphasis in original)]

Finding support in a minority of jurisdictions, the Lawlor Court suggested that the sounder view might be that the statute refers to the wrongful nature of the fatal injury, not the lapse of time between the injury and the commencement of suit. Id. at 345.*fn5

In more general terms, the interpretation expressed in Lawlor looks to the tortious character of the conduct resulting in death,

and not to procedural or jurisdictional matters which would have barred the decedent from instituting suit at the time of his death. Discussing statutory language similar to that examined in Lawlor, Dean Prosser has stated:

It is not at all clear * * * that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent. [W. Prosser, The Law of Torts, § 127 at 911 (4th ed. 1971)]

See also Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 609 (1962); Schumacher, Rights of Action Under Death and Survival Statutes, 23 Mich.L.Rev. 114, 121 (1924). An assessment of the interests redressed by a wrongful death action confirms our conclusion that maintenance of the action does not require the availability of an action for damages by the decedent at the time of his death, but only a tortious and fatal injury.


New Jersey's wrongful death statute created a new cause of action "beyond that which the deceased would have had if he had survived, and based on a different principle -- a new right of action." Cooper v. Shore Electric Co., 63 N.J.L. 558, 563 (E. & A. 1899); see 2 F. Harper & F. James, supra, § 24.2 at 1286. Upon the death of a tortiously injured person, the statute provides a right to recover the pecuniary damages incurred by the decedent's next of kin as a result of the death. See N.J.S.A. 2A:31-4, -5; Schumacher, supra, at 115-16. By requiring a "fair and equitable apportionment" of damages in accord with financial need, see N.J.S.A. 2A:31-4, the wrongful death statute addresses specific interests of dependents that receive only incidental protection in any surviving personal injury suit, see N.J.S.A. 2A:15-3. Unlike an action for wrongful death, the survival action inheres in the estate and is therefore subject to devise and the claims of creditors. See, e.g., Soden v. Trenton

and Mercer Cty. Traction Corp., 101 N.J.L. 393, 398 (E. & A. 1925). The survival action merely "perpetuat[es] the right of action which the deceased himself would have had, to redress his own injuries, but for his death." 2 F. Harper & F. James, supra, § 24.2 at 1287.*fn6 The wrongful death action, in contrast, includes two essential elements not present in any action brought by the decedent for his personal injuries. They are, first, death caused by the tortious act of the defendant and, second, the particular damages flowing therefrom to the next of kin. The existence of a separate statute of limitations for wrongful death claims, N.J.S.A. 2A:31-3, is further indication of the differing personal interests underlying the action.

It is difficult to reconcile the distinct nature of the wrongful death action with the view that it is wholly dependent upon the decedent's right to bring a cause of action for his injuries at the time of his death. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 569-70 (3d Cir. 1976), cert. den., 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977); Schumacher, supra, at 120-21; 1 S. Speiser, supra, § 5.14 at 617. If the wrongful death action creates separate rights in the beneficiaries, the decedent should not be permitted to foreclose the action completely. See Rowe v. Richards, 35 S.D. 201, 151 N.W. 1001, 1006 (1915). Based on the underlying interests protected by the wrongful death statute, we agree with the suggestion in Lawlor and the holding of other authorities that maintenance of the action is not barred by a judgment in a suit brought by the decedent while alive.

In construing the statute in this way, we are mindful of the general rule of statutory construction that the Legislature's acquiescence in a long-standing judicial interpretation is indicative

of legislative intent. Lemke v. Bailey, 41 N.J. 295, 301 (1963); Egan v. Erie R. Co., 29 N.J. 243, 250 (1959). Legislative silence, however, has been referred to as a "weak reed upon which to lean," 2A Sutherland, Statutory Construction, § 49.10 at 261 (4th ed. 1973). Application of this maxim of statutory construction would require at a minimum a clear and unequivocal judicial interpretation as the subject of legislative acquiescence. Neither an unequivocal judicial construction nor legislative acceptance appears with clarity here. Only the language of the wrongful death statute itself and its manifest purpose provide a basis for determining the intent of the Legislature. Schmoll v. Creecy, 54 N.J. 194, 203 (1969). Our examination of that language and purpose yields the conclusion that a wrongful death action is not contingent upon the continuing availability of an action for decedent's personal injuries.

It is also well-settled as a general rule to assist courts in statutory construction that statutes in derogation of the common law should be strictly construed. E.g., Dacunzo v. Edgye, 19 N.J. 443, 451 (1955); Carlo v. Okonite-Callender Cable Co., 3 N.J. 253, 265 (1949); see generally 3 ...

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