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Dr. Samuel Verghese and Rita Verghese v. Comcast of Garden State


July 18, 2012


On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2810-10.

Per curiam.


Argued February 16, 2012

Before Judges Waugh and St. John.

Plaintiff Samuel Verghese appeals from a March 25, 2011 trial court order granting defendant Comcast of Garden State, L.P.'s (Comcast) motion for summary judgment and dismissing his complaint with prejudice.*fn2 After reviewing the record in light of the contentions advanced on appeal, we are satisfied the trial court's conclusions were correct and should be affirmed.


The record discloses the following facts and procedural history.

At approximately 10:30 p.m. on June 3, 2008, during a torrential rainstorm, plaintiff parked his car at the curb in the cul-de-sac in front of his Glendora home. As he walked to his home, his leg got tangled in a black wire and he fell, injuring himself. When asked if he knew who the wire belonged to, plaintiff responded, "Yes, to some degree, because I [saw] PSE&G and Comcast trucks come and go." Plaintiff further stated that he had seen the wire laying there many times before the night of the accident and that he associated Comcast and PSE&G with that wire. Plaintiff also admitted he knew he had been injured when he fell, although he did not know the extent of his injuries at that time.

Plaintiff filed his complaint against Comcast on June 4, 2010. On March 10, 2011, Judge Stephen M. Holden conducted a Lopez*fn3 hearing at which plaintiff testified as to the events leading to his injury and the extent of his injury. After the testimony, the judge granted Comcast's motion for summary judgment for failure to comply with the two-year statute of limitations pursuant to N.J.S.A. 2A:14-2.*fn4 The judge stated, "It's clear to the court from the testimony that the plaintiff knew he was injured on June 3rd, and he knew that either Comcast or PSE&G were the tortfeasors." He also found that the complaint was filed two years and one day after the incident, falling outside the statute of limitations.


On appeal, plaintiff argues the trial court erred in not applying the discovery rule, as articulated in Lopez, for purposes of the statute of limitations; that the trial court further erred in concluding that there did not exist a genuine issue of material fact; and finally, that the interests of justice demand the trial court not grant summary judgment.

We note first the standard governing our review of a trial court's award of summary judgment. When reviewing such a grant, the Appellate Division employs the same standard as the trial judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citations omitted). First, we must decide whether there was a genuine issue of material fact. If there was not, then we must decide whether the trial judge correctly applied the law. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006) (citations omitted). Because this case arises on a motion for summary judgment, we consider the facts in the light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2.

The motion judge's conclusion on an issue of law is accorded no deference and is reviewed de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).


With regard to plaintiff's contention that the trial court erred in declining to apply the discovery rule, we note that during a Lopez hearing, the judge was required to determine whether plaintiff knew or reasonably should have known that he had been injured due to the actions or inactions of Comcast on the date of his injury. Lopez, supra, 62 N.J. at 272. This analysis requires the equitable application of what is known, under Lopez and its progeny, as the "discovery rule." Ibid.

The discovery rule has been crafted and applied as an equitable device "to avoid the potentially harsh effects of the 'mechanical application' of statutes of limitations." Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987)). "Under the discovery rule . . . the limitations period does not commence until the injured party actually discovers or should have discovered through reasonable diligence the fact essential to the cause of action." R.A.C. v. P.J.S., Jr., 192 N.J. 81, 98 (2007).

The discovery rule "prevents the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another."

Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998). "Although the discovery rule does not require 'knowledge of a specific basis for legal liability or a provable cause of action,' it does require 'knowledge not only of the injury but also that another is at fault.'" Guichardo, supra, 177 N.J. at 51 (quoting Martinez v. Cooper Hosp. - Univ. Med. Ctr., 163 N.J. 45, 52 (2000)). "Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware 'of that state of facts which may equate in law with a cause of action.'" Abboud v. Viscomi, 111 N.J. 56, 63 (1988) (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)). The fundamental question in a discovery rule case, therefore, is "whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001).

The discovery rule balances the need to protect injured persons unaware that they have a cause of action against the injustice of compelling a defendant to defend against a stale claim. Lopez, supra, 62 N.J. at 273-74. To be sure, legal and medical certainty are not required for a claim to accrue. See Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000). Thus, a plaintiff need not be informed by an attorney that a viable cause of action exists, Burd v. N.J. Tel. Co., 76 N.J. 284, 291-92 (1978), nor does a plaintiff need to understand the legal significance of the facts, see Lynch v. Rubacky, 85 N.J. 65, 73 (1981). Likewise, a plaintiff may not delay his filing until he obtains an expert to support his cause of action. Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990).

"Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). That being the case, it is usually true that the date of an accident or a negligent act is also the date on which the associated cause of action accrues. Id. at 117 (citations omitted). In Beauchamp, a case arising out of personal injuries caused by a collision with a New Jersey Transit bus, the Court determined that plaintiff's cause of action against the public entity accrued on the date of the accident itself. Id. at 119. The Court noted that it was "not contested that [the plaintiff] was injured at that time." Ibid. In fact, the plaintiff obtained treatment from a chiropractor approximately two weeks after the accident. Id. at 114. Although the prognosis for the plaintiff's injuries worsened over time, as diagnostic tests later showed them to be permanent, the Court found that her claims had accrued on the date of the collision, for it was immediately clear to the plaintiff that she had been injured. Id. at 119.

Generally, once a prospective litigant knows he has been injured and knows or has reason to know that someone has probably been at fault, the statute of limitations will begin to run as to all those individuals or entities within the universe of potential defendants whose identities are reasonably ascertainable, regardless of whether the aggrieved party knows the specific identity of those responsible for her injuries. See Apgar v. Lederle Labs., 123 N.J. 450, 456 (1991) (rejecting plaintiff's argument that the statute of limitations did not begin to run until she learned the identities of the manufacturers of the drugs which had allegedly permanently discolored her teeth); Viviano v. CBS, Inc., 101 N.J. 538, 546-47 (1986) ("Although she did not know the identity of the wrongdoer or of the specific part that caused the machine to malfunction, she was aware that the fault of another had caused her to suffer personal injuries."). This is because once an injured person knows that he has been injured and that the injury is attributable to the act of another it is his or her interest to consult counsel promptly. Viviano, supra, 101 N.J. at 547-48. "It then becomes incumbent on counsel to investigate the matter, retain experts if required, and institute suit when the facts suggest a claim is well-founded." Id. at 548.

Here, the standard is not whether Comcast's potential involvement in causing plaintiff's injuries was certain, provable, or even probable, but rather whether plaintiff knew or reasonably should have been aware that Comcast was potentially at fault for his injuries. See Martinez, supra, 163 N.J. at 55 ("[W]here a plaintiff knows of an injury, but fault is not self-evident or implicit in the injury itself, it must be shown that a reasonable person would have been aware of such fault in order to bar the plaintiff from invoking the discovery rule."). As our Supreme Court has explained, knowledge of fault for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care. [Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, 248 (1993) (emphasis omitted).]

Cases in which the Court has held that the statute of limitations did not begin to run against a particular individual or entity within the limited universe of potential defendants, notwithstanding the plaintiff's discovery of his injury and awareness that it had been "due to the fault of another," generally involve a unique set of circumstances which permit the conclusion that plaintiff had no reason to believe that his injuries were potentially due to the negligent conduct of a third party. See Caravaggio, supra, 166 N.J. at 246. The majority of these cases involve issues of complex medical causation where the prospect that the conduct of other third parties may have caused or contributed to the plaintiff's injuries was not self-evident or implicit in the nature of the injury itself. See, e.g., Mancuso v. Neckles, 163 N.J. 26, 35 (2000) (permitting breast cancer patient to invoke discovery rule to bring claim against radiologist more than two years after his alleged malpractice in allegedly misinterpreting the patient's first two mammograms where patient "did not suspect, much less have reason to believe" that she might have been injured by radiologist's conduct until receipt of information through a deposition in connection with related malpractice claim against surgeon for failure to follow up); Gallagher v. Burdette-Tomlin Mem'l Hosp., 163 N.J. 43, 38 (2000) (applying discovery rule to patient's medical malpractice claim against after-care urologists for negligent treatment of infection where patient had "no reasonable basis to suspect that her crippling condition was caused by anything other than the original surgery").

Moreover, in many of these cases, prospective litigants were misled, either intentionally or inadvertently, by the false assurances of a physician or expert that a third party's conduct had not caused or contributed to their injuries. See Caravaggio, supra, 166 N.J. at 251 (finding delay in bringing malpractice claim against orthopedic surgeon was justified where patient reasonably relied on the surgeon's statements placing blame for post-surgery complications with defective rod); Martinez, supra, 163 N.J. at 57 (finding that physician's assurances that the hospital emergency room staff "did all they could" to treat victim of a severe beating "would tend to deflect an ordinary person's attention from the hospital's conduct"); Abboud, supra, 111 N.J. at 65 (noting that dentists' repeated assurances that plaintiff's post-extraction pain was normal contributed to delay in discovering permanent nerve damage); Lynch, supra, 85 N.J. at 74-76 (observing that doctor's repeated assurances that plaintiff's condition was the result of normal "healing process" impeded plaintiff from discovering doctor's negligence). In other words, each of the cases in this sub-category of discovery rule decisions presented equitable considerations justifying a prospective litigant's delay in bringing a claim against additional third parties.

We hold that no such equitable considerations exist here. A reasonable person in plaintiff's position, having discovered a possible causal connection between his injuries and the downed wire, should have been aware that Comcast may have been responsible for his injuries. Indeed, the potential liability of this business entity was arguably implicit in the nature of the injury itself. Plaintiff's own testimony at the Lopez hearing shows that at that time of the accident, he had sufficient information about Comcast's alleged negligence to have then filed suit. The motion judge properly accounted for this notion in his decision. We therefore agree with the motion judge's findings, which were based on substantial credible evidence in the record, that plaintiff knew the wire was present prior to the accident, and that Comcast was doing work in the neighborhood.


Further, we note briefly that plaintiff filed his complaint on June 4, 2010. The pivotal question then becomes whether, as of the two years before that actual filing date -- for example, as of June 3, 2008, when plaintiff's injury occurred -- his cause of action had accrued.*fn5

"It was early established in this State, in accordance with the prevailing view elsewhere, that in computing time under the statute of limitations the day on which the cause of action accrued is not to be counted." Poetz v. Mix, 7 N.J. 436, 445 (1951). See also Patterson v. Monmouth Reg'l High Sch. Bd. of Educ., 222 N.J. Super. 448, 451 (App. Div. 1987) ("Under the uniform method of calculation applicable to legal matters in New Jersey the date of the act or event from which a designated period begins to run is not included in determining a time limitation."), certif. denied, 110 N.J. 183 (1988).

Applying the uniform method to plaintiff's case, we would exclude the day plaintiff knew or reasonably should have known that he had been injured due to the actions or inactions of Comcast from the computation of the two-year statute of limitation and would thus include the first day after that date. Therefore, if plaintiff knew or reasonably should have known that he had been injured due to the actions or inactions of Comcast on June 3, 2008, the requisite period "within two years" encompasses June 4, 2008, through and including June 3, 2010. Under that measurement, a complaint filed on June 4, 2010, would be outside the applicable limitations window by one day.

We agree with the motion judge that plaintiff filed his suit beyond the applicable statute of limitations, and the discovery rule provides no basis for relief from his failure to file a timely suit.


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