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Greczyn v. Colgate-Palmolive

March 10, 2004

WENDY GRECZYN AND STEVEN FISHMAN, PLAINTIFFS-APPELLANTS,
v.
COLGATE-PALMOLIVE, KLING LINDQUIST, DEFENDANTS-RESPONDENTS, JOHN DOES (1-10) AND ABC CORPS. (1-10), DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-8177-00.

Before Judges Wefing, Collester and Fuentes.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2004

Plaintiff*fn1 appeals from a trial court order dismissing her complaint for having been untimely filed. Resolution of this appeal requires that we determine whether an architect who is named as a defendant beyond the ten-year period permitted by N.J.S.A. 2A:14-1.1 is nonetheless subject to suit under the principles of fictitious party practice and relation back. After carefully reviewing the record in light of the contentions advanced on appeal, we conclude he is not and thus affirm.

On March 11, 1999, plaintiff tripped and fell on a staircase located within the Colgate-Palmolive office complex in Piscataway. She filed suit on October 3, 2000, to recover damages for injuries she alleged she received in that fall. Plaintiff was employed by Colgate-Palmolive and she joined it as a defendant for discovery purposes only. Davila v. Cont'l Can Co., 205 N.J. Super. 205 (App. Div. 1985).

She named as additional defendants John Does, 1 through 20, and ABC Corps., 1 through 20. Within the body of her original complaint, she described John Does and ABC Corps. 11 through 20 as having designed and constructed the staircase upon which she fell. Through discovery, she learned that defendants Kling Lindquist had served as the architects who were involved in the renovation and construction which resulted in the staircase upon which she fell. Discovery also revealed that the renovation and construction project was substantially completed by November 1990.

In October 2001 she filed a motion to amend her complaint to substitute Kling Lindquist as a defendant. Her motion was granted and shortly thereafter, in December 2001, she filed her amended complaint.

Kling Lindquist, relying on our ten-year statute of repose, N.J.S.A. 2A:14-1.1, moved for summary judgment. The trial court granted the motion, rejecting plaintiff's argument that the amended complaint, filed more than one year beyond the ten-year limit, should be deemed to relate back to the filing of the original complaint. Plaintiff has appealed from the resultant order.

N.J.S.A. 2A:14-1.1 provides in pertinent part:

No action whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.

This statute is not a statute of limitations but, rather, a statute of repose. Ebert v. S. Jersey Gas Co., 157 N.J. 135, 138 (1999) (holding that a service line leading from a gas main is an improvement to real property and its installer was not subject to suit when the line exploded more than ten years after installation); Rosenberg v. Town of N. Bergen, 61 N.J. 190, 199 (1972) (paving contractors not subject to suit for fall which occurred more than thirty years after completion of their work); Diana v. Russo Dev. Corp., 352 N.J. Super. 146, 150 (App. Div. 2002) (general contractor not subject to suit when decedent fell from hatch and ladder installed more than ten years earlier); Hein v. GM Const. Co., 330 N.J. Super. 282, 286 (App. Div. 2000) (noting that"[a] statute of repose is not really a statute of limitations at all, at least in the traditional understanding of that term").

A statute of limitations computes the period within which an action must be commenced from the accrual of the cause of action. E.A. Williams, Inc. v. Russo Dev. Co., 82 N.J. 160, 167 (1980) (holding, prior to 2001 amendment, that error in survey did not create a defective and unsafe condition and thus N.J.S.A. 2A:14-1.1 inapplicable). A statute of repose, on the other hand, operates without regard to the accrual of a cause of action. A statute of repose

does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that ...


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