On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
King, Havey and A.a. Rodriguez. The opinion of the court was delivered by King, P.J.A.D.
[268 NJSuper Page 440] On this appeal the defendants, Atlantic City Medical Center (ACMC) and Paul Petrella, its assistant director of plant operations, challenge Judge Previti's July 26, 1991 ruling on the issue of
the bar of the two-year statute of limitations, N.J.S.A. 2A:14-2. We conclude that the amended complaint joining Petrella related back to the date of the filing of the original complaint within the meaning of R. 4:9-3 and that the Judge's ruling refusing to bar the claim against Petrella on the statute of limitations ground was correct. We affirm.
The claim arose from a fall by Matilda Ciaudelli (plaintiff) on the sidewalk outside the ACMC on December 1, 1987. She was visiting her brother who was a patient at the hospital. She tripped over a "pipe stub" or stump which stuck up about six inches above the sidewalk, the residue of a parking meter which had been removed. The evidence established that after the accident, the ACMC's employees removed the pipe stub because it was a "safety risk." Plaintiff was treated in the ACMC emergency room right after the accident. A contemporaneous incident report was filed with the ACMC's risk management department which reported the incident to its insurance carrier.
Plaintiff sued the ACMC, the City of Atlantic City, and the City's Department of Public Works on August 16, 1989. Appellant ACMC filed an answer which did not include the defense of charitable immunity, which limited damages to $10,000, now $250,000 since L. 1991, c. 187, § 48. N.J.S.A. 2A:53A-7 and -8. See Schiavo v. John F. Kennedy Hospital, 258 N.J. Super. 380, 609 A.2d 781 (App.Div.1992), aff'd o.b., 131 N.J. 400, 620 A.2d 1050 (1993) (increased exposure prospective only). On October 3, 1989 counsel for ACMC wrote to plaintiff's counsel declaring his intention to amend its answer to include the charitable immunity defense. On October 5 plaintiff's counsel consented to an order allowing ACMC to amend its answer to include the immunity defense. The order was filed on October 11, 1989 but ACMC's answer was never so amended.
About a year later, on October 15, 1990, well after the statute of limitations had run, ACMC filed a notice of motion seeking leave
to amend its answer to include the charitable immunity defense. Counsel filed this motion either because he was unaware or had forgotten that the prior order had been obtained and filed. Plaintiff's counsel opposed this motion to amend in a certification which he filed on October 22, 1990.
On November 26, 1990 Judge Previti granted ACMC's motion to amend its answer to include the immunity defense. In his written opinion he stated:
It seems to me that both plaintiff's counsel and former defense counsel were sloppy in the preparation of their respective pleadings. In all accidents such as this "charitable immunity" should always be inserted in the answer as an affirmative defense to cover just such a surprise as this. [An allusion to ACMC's alleged surprise at eventually finding out that plaintiff was not just a passerby but was visiting her brother, a patient.]
Plaintiff's counsel learned in law school to name all potential tortfeasors, even "John Does," if necessary, to protect against such a situation as this[, e]specially since almost, if not all, ...