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LaFage v. Jani

February 22, 2001


The opinion of the court was delivered by: Coleman, J.

Argued September 11, 2000

On appeal from the Superior Court, Law Division, Salem County.

This is a medical malpractice-wrongful death case. The critical issue raised is whether our Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, permits equitable tolling of its two-year statute of limitations for minors whose wrongful death claims were filed twenty-seven days late. The trial court held that the Wrongful Death Act permits such tolling. The Appellate Division declined to intervene on an interlocutory basis. We granted leave to appeal and hold that the Wrongful Death Act may be equitably tolled for minors. We do not reach the issue whether our discovery rule applies to Wrongful Death Act claims.


Richard LaFage went to the Salem Hospital on March 6, 1995, complaining of extreme pain in his right shoulder and chest. The hospital diagnosed a pulled muscle and prescribed Percocet and other medication before sending him home. The next day, LaFage visited Dr. Salem, who also diagnosed a pulled muscle and prescribed medication, but LaFage continued to experience severe pain. LaFage returned to the hospital later that morning and was again diagnosed as suffering from a muscle pull. A nurse on duty told LaFage's wife that muscle pulls are painful and that LaFage was getting treatment for the pull. Later that day Mrs. LaFage gave the nurse a cup of LaFage's phlegm and asked why a muscle pull would cause the production of such phlegm. The nurse explained that phlegm sometimes resulted from the medication LaFage was taking, but that she would contact the doctor. That night LaFage's condition worsened, and he was transferred to the University of Pennsylvania Hospital where he was placed on a life-support system. He died two days later, on March 8, 1995.

LaFage is survived by his wife, Carmella LaFage, and three minor children between the ages of four and eight. Mrs. LaFage was three-months pregnant at the time of her husband's death. A few days after his death, Mrs. LaFage's father contacted Angelo Falciani, an attorney, regarding a possible malpractice suit. Mrs. LaFage met with Falciani on several occasions and was under the impression that he would handle the case and file a lawsuit on her behalf. In her testimony given during a Lopez discovery hearing, Lopez v. Swyer, 62 N.J. 267 (1973), Mrs. LaFage stated that she felt that the doctors, including defendant Dr. Devendra Jani, were negligent at the Salem Hospital. When asked why her father spoke to a lawyer, she responded that he did so because she thought that her husband had not received proper care and that her husband died as a result of somebody's negligence.

In addition to speaking to Falciani around March 13, 1995, Mrs. LaFage spoke with her cousin, Dr. Romano, on March 22, 1995. Dr. Romano informed her that he believed that she had an overwhelming case of malpractice against all of the health care providers, including the nurses, and explained why he thought the case was so strong.

A wrongful death and survivorship complaint was filed by Falciani on April 4, 1997, two years and twenty seven days after LaFage's death on March 8, 1995. In opposition to a motion to dismiss the complaint because it was filed more than two years after the date of death, Falciani argued that the statute of limitations should not commence to run until June 29, 1995, the date on which he received LaFage's autopsy report. The autopsy report indicated that the cause of death was a massive bacterial infection of unknown origin in LaFage's chest cavity. Falciani discussed the matter with many doctors, some of whom believed that medical malpractice existed, others of whom did not.

In response to Dr. Jani's motion to dismiss the complaint based on the statute of limitations, Falciani moved to intervene because he was now facing a legal malpractice claim. The trial court granted his application.

The trial court ultimately decided that the discovery rule could be applied to Wrongful Death Act claims. Based on evidence produced during the Lopez hearing, however, the trial court held that, even applying the discovery rule, the two-year statute of limitations barred Mrs. LaFage's wrongful death claim. The court found that although LaFage died on March 8, 1995, under the discovery rule the two years did not begin to run until March 22, 1995, when Mrs. LaFage spoke to Dr. Romano, who confirmed that malpractice was committed by all the health care providers. Thus, the trial court held that although the discovery rule applied under the reasoning of Negron v. Llarena, 156 N.J. 296 (1998), Mrs. LaFage's wrongful death and survival claims against all defendants were barred because her April 4, 1997, complaint was filed more than two years after the causes of action accrued on March 22, 1995.

Concerning the wrongful death claims of LaFage's children, the trial court held that although there is no statutory tolling for minors pursuant to the Wrongful Death Act, Negron permits equitable tolling until the minors reach their eighteenth birthdays. The Survival Act claims of the children, however, were barred because those claims belong to the estate and no distinction should be made between the children and the estate. The court reasoned that, notwithstanding the applicability of the discovery rule, the survivorship cause of action accrued on March 22, 1995, and the complaint was filed more than two years thereafter. Consequently, under the trial court's determinations, only the Wrongful Death Act claims on behalf of the minors were not dismissed.


Defendant nurses argue that there should be no tolling under the Wrongful Death Act and that the trial court misapplied Negron, which limited application of equitable principles to the doctrine of substantial compliance, a doctrine not involved in this case. They also maintain that the Wrongful Death Act, which contains a two-year statute of limitations without a tolling provision, reflects a legislative intent not to permit tolling for minors on either a statutory or equitable basis. They draw support from the general tolling statute, N.J.S.A. 2A:14-21, because claims under the Wrongful Death Act are not among the enumerated claims that statutorily permit tolling for minors.

Defendant Dr. Jani contends that the trial court acted inconsistently when it ruled that Mrs. LaFage's wrongful death claims are time-barred but that the wrongful death claims of the children are not. He also argues that the language in both the Wrongful Death Act and the general tolling statute, N.J.S.A. 2A:14-21, explicitly excludes tolling for minors: the former does so by stating that an action is viable only for two years, and the latter does so by listing a number of causes of action for which tolling is permitted, without including Wrongful Death Act claims. He maintains that, unlike tolling pursuant to N.J.S.A. 2A:14-21 of claims for personal injuries covered by N.J.S.A. 2A:14-2 where an injury has been suffered by a minor, the injury involved under the Wrongful Death Act has been suffered by someone other than the minor.

Intervenor Falciani contends that the discovery rule should apply to Wrongful Death Act claims, and that application of that rule requires a finding that the claims of Mrs. LaFage and those of the children were not time-barred. He also argues that minors should have the benefit of equitable tolling of wrongful death claims.


First, we address the contention that Mrs. LaFage's wrongful death claim should be subject to tolling based on a Lopez-type discovery rule. The current discovery rule is based largely on the language in our personal injury statute of limitations, N.J.S.A. 2A:14-2. It provides: "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." Ibid. (Emphasis added). The Wrongful Death Act, in contrast, requires that: "Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3 (emphasis added). Because we agree with the trial court's assessment of the record and its ultimate conclusion, that even if she could invoke the discovery rule Mrs. LaFage's wrongful death claim was untimely, we decline to address the broader question whether the discovery rule generally should be applicable to Wrongful Death Act claims. Under our discovery rule jurisprudence, she knew she had a basis for a wrongful death-medical malpractice claim, at the latest, on March 22, 1995, when she was so informed by Dr. Romano. The cause of action accrued on that date. The complaint was not filed until April 7, 1997, which was beyond the period permitted by N.J.S.A. 2A:31-3.


Next, we address whether wrongful death claims should be tolled for minors. The Wrongful Death Act provides: "Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3. The Wrongful Death Act does not explicitly relax the two-year requirement, nor has this Court addressed any exception to the clear language of N.J.S.A. 2A:31-3 prior to our decision in Negron. In Negron, we observed that equitable tolling or the discovery rule "in appropriate circumstances . . . can be relevant in determining whether the statute of limitations [N.J.S.A. 2A:31-3] should be tolled." Negron, supra, 156 N.J. at 307.

In Negron, the decedent, who was involved in an automobile accident and was treated at Christ Hospital in Jersey City, New Jersey, died on January 24, 1991, as a result of alleged medical malpractice at the hospital. The decedent's wife, who resided in New York, filed a wrongful death complaint against Christ Hospital on October 21, 1991, in the United States District Court for the Southern District of New York. On December 18, 1991, that court transferred the action to the United States District Court for the District of New Jersey. That court dismissed the action on November 28, 1994, for want of subject matter jurisdiction. A complaint was filed in the Superior Court of New Jersey on February 16, 1995, more than four years after the decedent's death. Id. at 298-99. We concluded that the equitable doctrine of substantial compliance could be applied to a Wrongful Death Act claim and held that the timely filing of the original complaint with the New York district court substantially complied with N.J.S.A. 2A:31-3. Id. at 305-07. We did not decide, however, whether the discovery rule or tolling for minors, both based on principles of equity, could be applied to Wrongful Death Act claims. Id. at 307. We now decide the unanswered questions regarding infant tolling.

Historically, the Court has made a distinction between a procedural statute of limitations and a substantive one. A substantive statute of limitations is found in legislation creating a cause of action that did not exist at common law. Id. at 300. With substantive statutes of limitations, where the time in which the action must be commenced expires, both the remedy and the right are barred. Ibid. A procedural statute of limitations, on the other hand, governs general causes of action, such as tort or contract actions, that were recognized under the common law. The running of a procedural statute of limitations bars only the remedy, not the right that existed at common law. Ibid. In addition, procedural statutes of limitation are not applied strictly and may be flexibly construed, subject to equitable principles. Ibid. Even substantive statutes, however, need not necessarily be construed rigidly. Negron confirmed that our "approach to substantive statutes of limitations has evolved to one that recognizes that their application depends on statutory interpretation focusing on legislative intent and purpose." Id. at 304.

Support for Negron was found in White v. Violent Crimes Compensation Bd., 76 N.J. 368 (1978), and Gantes v. Kason Corp., 145 N.J. 478 (1996). In White, this Court acknowledged that the Criminal Injuries Compensation Act, N.J.S.A. 52:4B-1 to -33, and the Wrongful Death Act both contain substantive statutes of limitations. White, supra, 76 N.J. at 374-75. Nevertheless, we allowed tolling of the statute of limitations, concluding that although the statute does not contain an exception for tolling, tolling could be applied if "otherwise appropriate." Id. at 384. The Court did not define that phrase, but stated that "in the case of a statutorily created right, a ?substantive' limitation period may appropriately be tolled in a particular set of circumstances if the legislative purpose underlying the statutory scheme will thereby be effectuated." Id. at 379.

In Gantes, the Court applied the interpretive standard described in White to ascertain the underlying legislative purpose of Georgia's statute of repose. Gantes presented a choice of law issue involving a products liability case filed in New Jersey by the representative of a Georgia decedent who was killed at work in Georgia, allegedly by a defective machine that had been manufactured in New Jersey. Gantes, supra, 145 N.J. at 482-83. Georgia's statute of repose was similar to a substantive statute of limitations and ordinarily would be applied as part of Georgia law because the accident occurred there. Id. at 485-86. Applying our less rigid interpretive standard, we concluded that allowing the statute of repose to bar the cause of action in New Jersey would not fulfill the legislative purposes of the statute. Id. at 489-90. Therefore, we applied New Jersey's wrongful death statute of limitations instead. Id. at 497-98.

White and Gantes marked a retreat from the inflexible approach to interpreting substantive statutes of limitation. Negron achieved an even larger departure when it acknowledged that substantial compliance is an exception to the substantive provisions of the Wrongful Death Act. That more flexible approach to substantive statutes of limitations takes into account our policy underlying personal injury statutes of limitations. The general purpose of a statute of limitations is to stimulate prompt action and to penalize negligence, while promoting repose by establishing stability in human affairs. Id. at 486. Stated differently, the purpose of statutes of limitations is to protect defendants from unexpected enforcement of stale claims by plaintiffs who fail to use reasonable diligence in prosecuting their claims. Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 115 (1965).

Statutes of limitations regarding the categories of claims generically described as "personal injuries" had their inception with the English Parliament when abuses from stale claims became unendurable. Kyle, supra, 44 N.J. at 103. To remedy the problem, Parliament passed from time to time "various statutes barring suits and actions, the causes of which arose previous to their respective dates, i.e., the beginning of the reign of King Henry the First, the return of King John from Ireland, the journey of Henry the Third into Normandy, and the coronation of King Richard the First." Ibid.

The first of such statutes to contain a tolling provision for minors was contained in the English statute of 21 James 1, c. 16 (1623). That statute, among other things, allowed tolling of accrual of a cause of action for personal injuries until a person was twenty-one years of age. "That statute was declared in force in the province of New Jersey in 1728 and re-enacted by the State Legislature in 1799." O'Connor v. Abraham Altus, 67 N.J. 106, 131 (1975) (Pashman, J., concurring and dissenting). The New Jersey Constitution of 1776 provided that "the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature." N.J. Const. of 1776, Art. XXII.

Then in 1799 the New Jersey Legislature passed a statute providing for limitation of actions in several fields, see Patterson's Laws, 352, that was almost identical to that of 21 James 1, c. 16 § 4. Kyle, supra, 44 N.J. at 104-105.

The statute, as amended in 1799, was again amended in February 1820. That amendment provided for a tolling if the defendant was a non-resident. 1820 N.J. Laws 46 (1820). The statute was again supplemented in 1841 to create tolling for six months when the defendant had died. 1841 N.J. Laws 48 (1841); Harrison, Public Laws of New Jersey (1843), p. 428; Kyle, supra, 44 N.J. at 105.

When our Wrongful Death Act was first enacted in 1848, statutory tolling for minors for generically described "personal injuries" had been in existence in New Jersey for over half of a century. Because there had been statutory tolling for minors since 1799, when the Legislature enacted the Wrongful Death Act in 1848, it reasonably could have believed that it would be superfluous to include a separate infancy tolling provision within the Wrongful Death Act. Another explanation is that the lack of a provision was simply a legislative oversight. The infancy tolling statute adopted in 1799 was essentially unchanged prior to 1951. Kyle, supra, 44 N.J. at 104-115.

Prior to the 1951 amendment, the infancy tolling statute, formerly R.S. 2:24-4, now N.J.S.A. 2A:14-21, see L. 1951, cc. 344, 345, expressly applied to the same three limitation periods that existed in 1799: actions on the case, personal injuries and libel. The 1951 amendments added ten or more new tolling categories, but no special category was created for wrongful death claims. However, the statute of limitations period under N.J.S.A. 2A:14-2 for personal injuries continued to be tolled. As noted that statute provides: "Every action at law for an injury to the person caused by the wrongful act, neglect, or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued."

The 1951 revisions were largely procedural in nature because they were intended to delete procedural matters from the statute and to reaffirm the court's power to control procedural matters. State v. Haines, 18 N.J. 550, 558-59 (1955); State v. Otis Elevator Co., 12 N.J. 1, 17-18 (1953). For instance, of the ten additional sections permitting infancy tolling, five previously had their own separate infancy tolling clauses. It is not clear why the other five were included and the legislative history does not shed any light on the 1951 revisions to the infant tolling statute. Four of those sections previously had not been characterized as "actions" prior to the revisions. That may have obviated the need for an infant tolling clause in those sections. It is therefore reasonable to conclude that the Legislature basically changed the sequential listing of the infant tolling statute from R.S. 2:24-4 to N.J.S.A. 2A:14-21 and expressly embraced, in addition to the traditional limitation periods, several limitation periods that previously had their own infancy tolling clauses. Hence, our examination of the issue whether there should be infancy tolling of wrongful death claims, leads us to conclude that the Legislature would not have intended to preclude it. The following example best illustrates the point.

Assume that a five-year-old child and his father are struck by a car while crossing a street. Both are injured severely. The child survives with disabilities. The father, however, dies a week later from his injuries. The child is the sole next-of- kin. A wrongful death claim and a personal injury claim on behalf of the child are filed five years after the accident. Undisputably, the tolling statute applies to the child's personal injury claim. We do not believe that the Legislature would have intended that the wrongful death claim should be barred either in that hypothetical example or in the present case. Although a literal reading of the Wrongful Death Act might suggest a different result, considerations of fairness and equity convince us that the true legislative intent is otherwise. The Legislature does not expect a child under the Wrongful Death Act "to understand or act upon his legal rights; he should not be made to suffer for failure to do so. Nor should he be penalized for the ignorance or neglect of his parents or guardian in failing to assert those rights." O'Connor, supra, 67 N.J. at 132 (Pashman, J., concurring and dissenting). We are persuaded that to allow tolling for a minor's wrongful death claim poses no threat to the salutary purpose of the statute of limitations.

As stated, our statutes permit tolling for personal injuries suffered by minors. The applicable statute of limitations allows up to two years after accrual of a cause of action to file a complaint. N.J.S.A. 2A:14-2. The tolling provision regarding personal injuries to minors provides:

If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A:14-16 to 2A:14-20 of this title or to a right or title of entry under section 2A:14-6 of this title is or shall be, at the time of any such cause of action or right or title accruing, under the age of [18] years, or insane, such person may commence such action or make such entry, within such time as limited by said sections, after his coming to or being of full age or of sane mind. [N.J.S.A. 2A:14-21.]

Under the statute, if a personal injury claimant is less than eighteen when the cause of action accrues, the statute of limitations is tolled for two years after the person reaches his or her majority. Ibid. As noted previously, the Wrongful Death Act contains no tolling provision.

The decisional law in New Jersey has not been uniform in respect of equitable tolling for minors. Some cases have declined to allow minority tolling. See, e.g., Scharwenka v. Cryogenics Mgmt., Inc., 163 N.J. Super. 16, 21-22 (App. Div. 1978) (refusing to extend minority tolling to untimely petition for workers' compensation benefits because statute did not provide for it); Lombardi v. Simon, 266 N.J. Super. 708, 712 (Law Div. 1993) (refusing to toll wrongful death statute of limitations). More recently, in Cockinos v. GAF Corp., 259 N.J. Super. 204 (Law Div. 1992), the court specifically held that tolling for infancy does not apply to wrongful death claims because our wrongful death statute does not include a minority tolling provision. Id. at 207-09.

However, a more enlightened approach was applied in Barbaria v. Township of Sayreville, 191 N.J. Super. 395, 404 (App. Div. 1983), where the Appellate Division permitted minority tolling in a wrongful death cause of action. The court reasoned that the death of a parent was essentially an injury to the child, much like a child's own physical injury, and therefore the child's wrongful death claim should be tolled, in the same way that his or her injury would be tolled under N.J.S.A. 2A:14-2. Id. at 401-02. That approach is consistent with the approach followed in other jurisdictions.

Other states also have extended minority tolling to their wrongful death statutes despite an absence of statutory language explicitly adopting such tolling. The Massachusetts Supreme Judicial Court, for example, has held that minority tolling applies to its wrongful death statute. Gaudette v. Webb, 284 N.E.2d 222, 229-31 (Mass. 1972). The Massachusetts wrongful death statute in effect at the time of the decedent's death in Gaudette stated: "An action to recover damages under this section shall be commenced within one year from the date of death or within such time thereafter as is provided [in the tolling provisions of another chapter]." Id. at 225 (internal quotation marks omitted). Those tolling provisions, however, applied only to actions that the deceased could have brought, and therefore did not apply to wrongful death actions. Ibid. Significantly, the court used a different approach to permit equitable tolling of the wrongful death claims. Despite precedents to the contrary, the court determined that Massachusetts law had "evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin." Id. at 229. On that basis, the court held that the state's wrongful death statute, in appropriate cases, may be tolled. Ibid.

The Alaska Supreme Court has held that "the disability of a minor statutory beneficiary tolls the running of the two year time limit for commencing a wrongful death action until the disability is concluded." Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1092 (Alaska 1979). Alaska's wrongful death statute stated that an "action shall be commenced within two years after the death." Id. at 1088 n.2 (internal quotation marks omitted). The court had to decide whether Alaska's general tolling statute applied to extend the two-year limitation contained in the wrongful death statute. The Alaska court noted that "[t]he primary purpose of the wrongful death statute is to compensate those who suffer a direct loss." Id. at 1090. It found that "[d]enying recovery to the [deceased parents'] children would defeat this purpose." Ibid. The court could "think of no good reason why" the public policy favoring protecting the interests of minors, evident in Alaska's general tolling statute, "should not apply to wrongful death actions." Id. at 1090-91. Therefore, the court decided to allow a minority toll of its wrongful death statue.

The Illinois Supreme Court also has determined that the two-year statute of limitations contained in its wrongful death statute did not apply to the claims of minors. Wilbon v. D. F. Bast Co., 382 N.E.2d 784, 790-91 (Ill. 1978). At that time, Illinois's wrongful death statute required: "Every such action shall be commenced within 2 years after the death of such person." Id. at 784-85 (internal quotation marks omitted). After an examination of the history of wrongful death actions in this country and of the legislative intent underlying the Illinois wrongful death statute, the court concluded that logic and justice required it to allow the minor plaintiffs to proceed. Id. at 790-91 (explaining that "?[a] child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights'") (quoting McDonald v. City of Spring Valley, 120 N.E. 476, 478 (Ill. 1918)).

Like the Workers' Compensation Act, N.J.S.A. 34:15-51, and the Tort Claims Act, N.J.S.A. 59:8-8, that specifically authorize a representative to bring an action on behalf of minors, New Jersey's Wrongful Death Act authorizes the administrator ad prosequendum or the executor or administrator with the will annexed to bring the action. Although the wrongful death action can be instituted only by an administrator ad prosequendum or the executor or administrator with the will attached, N.J.S.A. 2A:31- 2, the legislative purpose was to join all claims in a single action rather than to allow each wronged next-of-kin to file a separate action. Id. at 402.

Recovery for wrongful death "is primarily for the pecuniary damages to the decedent's next-of-kin," some of whom may be minors or incompetents. Barbaria, supra, 191 N.J. Super. at 401; N.J.S.A. 2A:31-5. The Appellate Division observed in Barbaria, that when the wrongful death claim belongs to infants in whole or in part, the infants should be treated as if they were pursuing a claim for their own injuries. "The losses an infant suffers upon the death of a parent may be no less deserving of compensation than the losses he suffers from his own injury." Barbaria, supra, 191 N.J. Super. at 401-02. Although we do not necessarily subscribe to the analysis adopted in Barbaria, we are nevertheless persuaded that the tolling statute, which tolls for infants the two-year statute of limitations applicable to "[e]very action at law for an injury to the person caused by the wrongful act [or] neglect of any person," N.J.S.A. 2A:14-21, should be construed to toll as well wrongful death actions by infants because such actions are fairly encompassed by the limitation provisions applicable to actions for injury to the person. Although we are confident that construction of the tolling statute is consistent with the Legislature's intent, the Legislature is of course free to correct our interpretation if we have misperceived its intent.

The New Jersey decisions holding that tolling should not be permitted are premised on the inflexible approach to substantive statutes of limitations that we modified in White, Gantes, and Negron. Applying minority tolling to wrongful death actions is consistent with the applicability of minority tolling to other complex tort actions. We already permit minors in medical malpractice cases involving the delivery of an infant plaintiff, Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101, 105-07 (App. Div. 1997), and in preconception tort cases, Lynch v. Scheininger, 162 N.J. 209, 232 (2000), to file a claim over eighteen years after the alleged negligent conduct occurred. We have permitted tolling of statutes of limitations "even though [such] interpretation and application have the effect of lengthening the defendant's jeopardy." Farrell v. Votator Div. Of Chemetron Corp., 62 N.J. 111, 121 (1973). Furthermore, our Wrongful Death Act is remedial in nature and is designed "to compensate surviving dependents for the pecuniary losses resulting from death" of, in many cases, the "breadwinner." Kibble v. Weeks Dredging & Const. Co., 161 N.J. 178, 189 (1999). The claims of these young children should not be barred because their mother filed the complaint twenty-seven days late. The purpose of tolling the statute of limitations for minors is to "protect minors who presumably are not well-versed in legal . . . matters, from the adverse consequences of their inexperience." Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 600 (1992) (internal quotation marks omitted). Accordingly, we hold that minority tolling may be applied to the Wrongful Death Act and was properly applied in this case.

We recognize that one could view the majority opinion, as the dissenters have, as being too broad and not consistent with certain rules of statutory construction. On the other hand, some, including those in the majority, view the dissenting opinion as a compendium of mechanical rules that is too narrow and too technical. "Law is more than an exercise in logic, and logical analysis. . . . Law should not become a[n] instrument of injustice." Procanik by Procanik v. Cillo, 97 N.J. 339, 351 (1984). "When all is said and done, the matter of statutory construction . . . will not justly turn on literalisms, technisms, or the so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situation." Jersey City Chap. Prop. Owner's Protective Ass'n v. City Council, 55 N.J. 86, 100 (1969). There is no suggestion that the lapse of twenty- seven days has prejudiced defendants; nor is there any suggestion that the minor children have been advantaged by the tolling. We believe our opinion advances the legislative intent underlying the Wrongful Death Act and the infant tolling statute, and will disserve none of the policies underlying the statutes of limitations.



There is yet another important reason why tolling for minors should apply to our Wrongful Death Act: wrongful death claims were cognizable at common law. Four years after the adoption of New Jersey's Constitution of 1844, New Jersey adopted its first Wrongful Death Act in 1848. The Act was modeled after Lord Campbell's Act of 1846. That fact is highly significant because the common law of England has a constitutional basis in our State. "New Jersey's Constitution of 1776 provided that the common law of England (as well as so much of the statute law) as was practiced in the colony should remain in force until altered by the Legislature (Art. XXII) and the Constitution of 1844 provided that the common law (and statute laws) shall remain in force until they expired by their own limitation or were altered by the Legislature (Art. X, par. 1)." Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 43 (1958); State v. One 1990 Honda Accord, 154 N.J. 373, 381 (1998); State v. Smith, 85 N.J. 193, 199 (1981). In England, no common law cause of action for wrongful death existed. Baker v. Bolton, 170 Eng. Rep. 1033 (Nisi Prius 1808).

In Baker the plaintiff was the decedent's husband suing a stagecoach owner for damages for his own losses caused by his wife's death when a stagecoach overturned. Lord Ellenborough instructed the jury that the damages were limited to plaintiff's loss of society and the grief he suffered from the date of the accident to the time of death. Because the time-span for the damages consisted of less than one month, the case involved a small amount of money. Although there was no claim before the court for the death itself, the jury was instructed that "in civil court, the death of a human being could not be complained of as an injury." Stuart M. Speiser et al., Recovery for Wrongful Death and Injury, § 1:1, 1 (3d ed. 1992). That dictum of Lord Ellenborough became the basis for the New Jersey and national so-called common law rule that there could be no recovery for wrongful death in the absence of statute without any critical examination. Ibid. Baker was not based on precedent or logic and that led Dean Prosser to observe that as a result of adopting Baker, "it was cheaper for the defendant to kill the plaintiff than to injure him." Prosser & Keeton on Torts, § 127 (5th ed. 1984). The dictum in Baker was eventually overturned thirty-eight years later when Lord Campbell's Act was adopted.

Lord Campbell's Act of 1846 created a statutory action for wrongful death. Lord Campbell's Act (Fatal Accidents Act), 1846, 9 & 10 Vict., ch. 93. The preamble to Lord Campbell's Act of 1846 was a parliamentary declaration of what the English common- law rule was at that time. That Act created a civil cause of action for deaths that had been caused under circumstances that would amount to a felony under the criminal laws. Ibid.

Our Act of 1848, however, did not include the preamble contained in Lord Campbell's Act declaring that no cause of action existed at common law for wrongful death. Negron, supra, 156 N.J. at 315 (Handler, J., concurring). In addition, when our Act became law in 1848, "the only reported cases in American law were those that allowed for the recovery of damages for the death of another." Ibid.

Legal historians have concluded that the sole substantial reason why the English common law rule disallowed a wrongful death cause of action was the felony-merger doctrine. F. Pollock, Law of Torts 52-57 (Landon ed. 1951); W. Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q. Rev. 431 (1916). Under the felony-merger doctrine, no civil recovery was permitted under the common law for an act that constituted both a tort and a felony. The felony was against the Crown and was deemed more serious than the tort, and thus the tort was merged into, or pre- empted by, the felony. Smith v. Sykes, 89 Eng. Rep. 160 (K.B. 1677); Higgins v. Butcher, 80 Eng. Rep. 61 (K.B. 1607); Grosso v. Delaware, Lackawanna & W. R.R. Co., 50 N.J.L. 317, 318-20 (Sup. Ct. 1888). "The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action. Since all intentional or negligent homicides were felonious, there could be no civil suit for wrongful death." Moragne v. State Marine Lines, Inc., 398 U.S. 375, 382, 90 S. Ct. 1772, 1778, 26 L. Ed. 2d 339 (1970). Viewed in its historical context, it becomes apparent that when our Legislature adopted our Wrongful Death Act, its failure to include the preamble to Lord Campbell's Act means that our Legislature intentionally altered the English common law announced in Baker at the time it enacted our Wrongful Death Act in 1848. Stated differently, our Act of 1848 left in place the pre-Baker English common law that had been adopted at the time of our Constitution of 1776.

Although New Jersey has for many years permitted property used to perpetuate a crime to be forfeited pursuant to statute, see L. 1898, c. 237, § 168, and N.J.S.A. 2C:64-1 to -9, the felony-merger doctrine that was part of the English common law never became part of the common-law tradition in New Jersey or the United States. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-83, 94 S. Ct. 2080, 2090-92, 40 L. Ed. 2d 452, 468 (1974); State v. 1979 Pontiac Trans Am., Color Grey, 98 N.J. 474, 479-80 (1985). Furthermore, the fact that forfeiture never existed in New Jersey under the common law, One 1990 Honda Accord, supra, 154 N.J. at 378-79, provides ...

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