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Mancuso v. Mancuso

Decided: March 11, 1986.

GRACE MANCUSO, PLAINTIFF-APPELLANT,
v.
ANTHONY MANCUSO, WILLIAM LEIGH, AND "JOHN DOE" (A FICTITIOUS NAME), DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Middlesex.

Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Plaintiff Grace Mancuso appeals from a summary judgment dismissing her automobile-negligence personal injury action against defendants Anthony Mancuso and William Leigh. The dismissal was based on the untimeliness of the institution of the action, the trial judge having concluded that it was barred by the two-year limitations period prescribed by N.J.S.A. 2A:14-2. The question before us is whether plaintiff was entitled to claim the benefit of the so-called discovery rule by which the date of accrual of the action is deferred until the injured person knows or is chargeable with knowledge that he has an actionable claim. Our review of the record persuades us that there were sufficient facts here to mandate the holding of the threshold hearing required by Lopez v. Swyer, 62 N.J. 267 (1973).

The record is regrettably sparse. It does, however, permit the finding of the following facts. On September 8, 1981, plaintiff was a passenger in an automobile operated by her husband Anthony Mancuso. Their vehicle was involved in a collision with an automobile operated by defendant William Leigh. Plaintiff sustained what appeared to be superficial soft tissue injuries of minimal consequence. She saw her family physician, Dr. Eugene Buchwald, immediately after the accident and again two days later, incurred a total bill of $70, was assured that the trauma was entirely transient, and apparently suffered no physical sequelae therefrom.

Some time after the accident, the record not indicating just when, plaintiff began experiencing neurological symptoms on the left side of her body. By the spring of 1982, Dr. Buchwald had diagnosed her problem as Parkinson's disease, for which he treated her. He apparently referred her to a neurologist at the New York University Medical Center for a consultation in

September 1982. The neurologist's report confirmed the diagnosis of "unilateral Parkinson's syndrome." Plaintiff continued under Dr. Buchwald's care but, apparently because of the rapid deterioration of her condition, she sought help from the Department of Neurology of the Lahey Clinic in Massachusetts in mid-October 1983. The examining neurologist, Dr. Stephen L. Wanger, not only again confirmed the Parkinson's diagnosis but also was of the view that the disease, incipient at best at the time of the accident, had been seriously exacerbated thereby. As he stated in the report he furnished to plaintiff's attorney in November 1983:

Mrs. Mancuso clearly has Parkinson's disease. By history, this disorder was not present prior to the trauma of two years ago. While it is not possible to prove that the trauma of that motor vehicle accident was the actual cause of her Parkinson's disease, there is no doubt in my mind that her disease was markedly and substantially aggravated by that accident, and I believe that her current degree of disability would be very much less severe had she not experienced that trauma.

This action was commenced on June 17, 1984, two years and nine months after the accident and eight months after plaintiff allegedly discovered the causal connection between the accident and her Parkinson's disease.*fn1 Both defendants, relying on the two-year statute of limitations, moved for summary judgment dismissing the complaint. The trial judge granted the motions on the ground that the discovery rule has not yet been applied in tort actions arising out of automobile negligence. We conclude that he erred.

Both N.J.S.A. 2A:14-1, which prescribes a six-year limitations period for property damage actions, and N.J.S.A. 2A:14-2, which prescribes a two-year limitations period for personal

injury actions, provide that the limitations period starts to run from the date of the accrual of the cause of action. The discovery rule, as developed by the New Jersey courts over the last several decades, is a technique by which the date of accrual of the cause of action is deferred from the customary date of the actual infliction of the injury until the date upon which the injured person knows or should, by the exercise of reasonable diligence, know that he has sustained an actionable injury. As summarized by Justice Handler in Tevis v. Tevis, 79 N.J. 422, 432 (1979), "* * * when a party is either unaware that he has sustained an injury or, although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another, the cause of action does not accrue until the discovery of the injury or facts suggesting the fault of another person."

The rule has been most prominently applied in medical malpractice cases. See, e.g., Fox v. Passaic General Hospital, 71 N.J. 122 (1976); Lopez v. Swyer, 62 N.J. 267 (1973); Fernandi v. Strully, 35 N.J. 434 (1961). But it has also been applied in a variety of other categories of actions in which the peculiar factual circumstances of the case have permitted a finding that the plaintiff could not have reasonably known on the date the harm was inflicted both that he had sustained an injury and that the injury was attributable to another's fault. See, e.g., O'Keeffe v. Snyder, 83 N.J. 478 (1980) (replevin of a painting); Rosenberg v. Town of North Bergen, 61 N.J. 190 (1972) (personal injury and property damage actions against persons performing or furnishing the design or construction of real property improvements, provided the action is commenced within the ten-year maximum period prescribed by N.J.S.A. 2A:14-1.1); Diamond v. N.J. Bell Telephone Co., et al., 51 N.J. 594 (1968) (action against utility for negligent installation ...


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