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Viviano v. CBS Inc.

Decided: January 28, 1986.


On appeal from the Superior Court, Appellate Division.

For reversal, reinstatement and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.


[101 NJ Page 541] The basic issue on this appeal is whether the cause of action of plaintiff, Lucrezia Viviano, against defendant Sybron is barred because of the expiration of the two-year period of limitations for personal injury actions, N.J.S.A. 2A:14-2. The Law Division denied Sybron's motion for summary judgment and granted Viviano's motion to strike the defense of the statute of limitations. In an unreported decision, the Appellate Division reversed and remanded for entry of a judgment dismissing the complaint. One judge dissented, and plaintiff appealed of right. R. 2:2-1(a)(2). We reverse.


We glean the following facts from the depositions, affidavits, and documents filed by the parties in support of their cross-motions. Because the matter is presented on appeal from the Appellate Division's mandate directing judgment in favor of Sybron, we view the record in the light most favorable for plaintiff, giving her the benefit of all legitimate inferences that may be drawn from the facts. Millison v. du Pont, 101 N.J. 161, 167 (1985); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

Thus viewed, the record reveals that on December 1, 1978, Viviano was injured while operating a record album press at the CBS plant in Pitman, New Jersey. Apparently CBS had assembled the press some twenty years earlier from components provided by various suppliers. At the time of the accident, Viviano, who was twenty years old, had worked at the plant for six weeks. She was working on the night shift when she alerted a CBS mechanic that the machine was malfunctioning. According to Viviano, the press, which was like "a giant waffle iron," was "popping up and down." While Viviano was on her half-hour dinner break, the mechanic adjusted the press. Although the mechanic assured her that he had repaired it, the press malfunctioned and sandwiched her left hand. Because the machine did not have a safety device, Viviano was unable to free her hand until her co-workers released her. In the interim, the press processed her hand. The combination of the 228-pound weight and 350-degree heat destroyed three and one-half of plaintiff's fingers and rendered her remaining finger useless.

Plaintiff retained counsel, and he consulted an expert, who advised, before inspecting the machine, that the absence of a safety device constituted a design defect in the machine. Thereafter, on July 2, 1979, plaintiff sued CBS; "JOHN DOE COMPANY, Manufacturer of Record Press Machine;" "JOHN HOE COMPANY, Installer of Record Press Machine;" and "JOHN MOE COMPANY, Distributor of Record Press Machine."

She did not expressly allege a cause of action against any component manufacturer, either by specific identification or through the fictitious-name procedure authorized by Rule 4:26-4.

After filing the complaint, plaintiff obtained a court order permitting her expert to examine the press. Immediately after the accident, however, CBS had removed the timer and placed it in a pile of timers in the maintenance yard. On the date of the inspection, therefore, the press did not have a timer. Nonetheless, CBS showed the expert the press without the timer and similar presses that contained timers.

Plaintiff proceeded with discovery, and on April 7, 1980, deposed Joseph Kroll, the CBS plant manager. Kroll testified, with reference to the press, that CBS had "absolutely no record of that equipment anywhere." During the course of the deposition, however, counsel for CBS agreed to provide plaintiff with a list of component part manufacturers. The list, which was dated June 26, 1980, was served on plaintiff on June 30, 1980. Although the parties disagree about the number of manufacturers listed, they agree that Taylor Instrument Company (Taylor) was among the listed companies.

Upon receipt of the list, plaintiff hired a second expert to determine which of the companies had manufactured the press. As a result of the second expert's investigation, plaintiff abandoned the fictitious identification of defendants and filed an amended complaint on September 2, 1980, naming A & M Tool & Die, Inc. (A & M) as the manufacturer of the press.

On June 2, 1982, plaintiff deposed Samuel Burger, vice-president of CBS, who produced at his deposition an internal CBS memorandum, dated December 4, 1978, that identified the timer on the press as the defective component and further identified Taylor as the manufacturer of the timer. This memorandum had been prepared by the CBS pressroom foreman only three days after plaintiff's accident. Copies had been sent to Kroll,

to the director of employee relations, and to the manufacturing manager of the plant at the time of the accident.

The relevant portion of the memorandum states:

We found a problem on the old Taylor Timers, we are in the process of changing. If the microswitch sticks, the press will reset itself and go back in and through a cycle. I questioned the electricians on a safety device. We are in the process of replacing the Taylor timers with our electronic timers that have an additional safety built in.

CBS justifies its failure to make earlier disclosure by claiming that the memorandum had been misfiled. The plant manager admitted on deposition, however, that he was aware of the report on the date it was prepared.

Even after providing plaintiff's counsel with a copy of the December 4, 1978, memorandum, CBS delivered answers to interrogatories in which it continued to quibble about the happening of the accident. After plaintiff filed numerous motions to compel, CBS finally answered the interrogatories by denying that it knew how the accident happened. In response to other interrogatories seeking to ascertain the identity of the distributor of the press or of its component parts, CBS averred that the names could not be ascertained at that time. CBS also stated that its electrician and maintenance mechanic "checked the press operation for electrical and mechanical failures immediately following the accident and could find nothing wrong with the press nor could they make the press re-cycle on its own. Other than the above, there is no more specific information which is known by this defendant."

Either intentionally or unintentionally, CBS misled plaintiff about the cause of the accident and then compounded the deception with undue delay. For example, at one time, CBS agreed to the entry of an order allowing plaintiff to file a sixth amended complaint against Sybron, which had acquired Taylor before the accident in October 1978. Later, however, CBS withdrew its consent, thereby delaying the filing of the amended complaint. On July 16, 1982, approximately one month after CBS produced the memorandum at Burger's deposition, plaintiff

obtained an order permitting the filing of the sixth amended complaint, which included Sybron as a defendant. The complaint also reinstated the "John Doe" designation, which plaintiff had eliminated after Kroll had denied the existence of any CBS records pertaining to the press.

Sybron filed a motion for summary judgment, asserting that plaintiff should have discovered her cause of action against it on June 26, 1980, the date of the CBS list that named the component part manufacturers. Because plaintiff did not file the sixth amended complaint until July 30, 1982, two years and one month after the date of this list, Sybron claimed that plaintiff's action was barred by the statute of limitations. Viviano filed a cross-motion to strike the statute of limitations as a defense.

In denying Sybron's motion and granting Viviano's cross-motion, the trial court relied on the discovery rule. Specifically, the court found that Viviano discovered her cause of action on June 2, 1982, when CBS relinquished its internal memorandum, and that ...

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