Miller v. Estate of Sperling

MILLER, UNDER INDIVIDUALLY AND AS EXECUTOR CLETIS MILLER, ANN F. DE THE AND TESTAMENT OF LAST WILL CEASED, PLAINTIFF-APPELLANT, WALTER v. ESTATE OF EXECUTRIX, SPERLING, SPERLING, DEFEN COLLETTA DANT-RESPONDENT. January 22,

Argued September 2000 Decided Jr., argued appellant. cause Byer, Willard E. for Lunga argued respondent (Lunga, Michael J. the cause for Johnson, attorneys). Evers & curiae, argued Y.

Alan Medvin the cause amicus Association (Medvin Lawyers Jersey Elberg, Trial America New & attorneys). opinion Court was delivered

ZAZZALI, J. timely plaintiffs failure to file a here is whether

The issue malpractice precludes a later death action medical claim malpractice. arising alleged out of early plaintiffs until Sperling Dr. treated wife 1960s prescribed a During period, Sperling Dr. medication that allegedly was taken off the market because adverse her passed away filing side Plaintiffs wife 1996 without effects. later, filed suit two medical action. Plaintiff his alleging improper treatment caused wife’s death. The summary granted judgment, Law v. Guardian Division Brill Life (1995), Co., dismissing Ins. 666 A .2d 146 affirmed, claims, reasoning and the Division action is in nature and derivative therefore malpractice contingent upon a action. viable Miller Estate of 572, 583-84, (App.Div.1999). Sperling, independent Because a death claim is an cause extinguished by the failure of a decedent cannot applicable maintain a medical action within the limita period, tions we reverse.

I. inferences, Brill, Giving plaintiff of all the benefit reasonable supra, 142 N.J. at A.2d facts are follows. Miller, plaintiff, Sperling Dr. treated both and his Walter Cletis wife, Miller, early T. 1960s Ann until 1985. Plaintiff Sperling prescribed that in 1972 Dr. control claims birth medi cation for Ann called 28. She took that medication until Ovulen however, According plaintiff, Sperling Dr. did 1985. not tell medication, prescription Ann was that the birth control but tranquilizer told that it for her He did not tell her was nerves. prescription either Ann or her the true nature of the until husband spoke an office visit The Millers left the and never 1985. office again. ultimately to Dr. Ann Sperling taking Miller discontinued shortly Sperling Ovulen 28. Dr. retired thereafter.1 attempted, unsuccessfully, Sper- Plaintiff Ann Dr. and to have ling criminally They prosecuted. attorney also tried to retain an Sperling, Despite to sue Dr. but were unable to do so. those efforts, plaintiff neither nor his wife initiated an action for mal- practice any against Sperling during other claim Dr. Ann’s lifetime. 30,1996, age sixty-six.

On March Ann Her died at death myocardial suspected certificate that she states died of acute accompanied by lung infarction interstitial disease. Dr. chronic wife, Coletta, Sperling died in His who as executrix served estate, during pendency appeal. of his died this also days expiration On March thirteen before the claim, two-year plaintiff statute limitations for pro se complaint against filed a handwritten estate of Dr. Sperling. complaint improper Sperling’s stated that Dr. prescription myocardial proximately of Ovulen 28 caused Ann’s infarction, Thus, leading complaint to her death. sounded survivorship, malpractice, medical death. noted, plaintiff

As states that his wife took Ovulen 28 from 1972 pharmacy until in discovery 1985. The records submitted him only prescribed demonstrate that Ovulen was from 1974 to Sperling prescribed 1976. Defendant maintains that Dr. last drug attorney represents wife in 1976. The estate’s Sperling’s that Dr. office for Ann Miller records were discarded long complaint before the was filed. We do note that there was a suggestion by plaintiffs attorney argument at that oral medical 1During litigation, plaintiff alleged Sperling the course of this has that Dr. members, prescribed family 28 at the wife's either due Ovulen behest of his ability their her concerns about to raise children or their desire to reduce the reason, potential gravamen pro number heirs. of Whatever the the se allegation Sperling prescribed couple's birth that Dr. control without knowledge.

374 County in the of the Office of the Essex possession records are Prosecutor. Division, argued plaintiff’s that

Before the Law defendant comply two-year he were barred because failed to with claims claims, governs that medical statute of limitations Division, citing 2A:14-2. Law Baird v. American N.J.S.A. The (1998), 54, 66, plaintiff Optics, N.J. found that A.2d Sperling Dr. against knew known about his claims or should have granted summary Law judgment and the estate. The plaintiffs not claim death. Division did address appealed present filing pro after Plaintiff and retained counsel Although raised in Appellate se brief before Division. not brief, Appellate plaintiffs Division counsel addressed the argument at oral that contend- death claim before court. Counsel limitations, two-year of ed that death statute 2A:31-3, plaintiffs Sperling’s Dr. governed N.J.S.A claim that plaintiff conduct contributed to decedent’s death 1996. Because death, filed claim within Ann’s counsel two asserted disregard timely Although noting it filed. that it was could below, Appellate it claim because not raised Division was the issue “in the nonetheless decided to address interest Miller, justice.” N.J.Super. at supra, 326 742 A.2d 572. grant summary Appellate judg The Division affirmed concluding though wrongful death] ment “even claim did [the died, ripen until wife failure to ‘accrue’ decedent’s bring personal injury action before the statute of limitation[s] expired due barred the action to the death claim’s derivative (citing nature.” Id. at Knabe v. Hudson Bus (citation Co., (E. A.1933) 333, 168 Transp. A. 418 & and N.J.L. omitted)). binding footnote The court reasoned that Knabe has precedential it prede force because was decided this Court’s cessor, Appeals. the Court of Errors 168 A. 418. agreed also Division with the rationale of that decision, view, stating, presents our Knabe a sensible rule “[i]n Id. which has withstood the test time.” A. 418. Appellate Because the agreed Division that Ann’s claim for medi- cal untimely, panel was the also concluded that Knabe plaintiffs wrongful 584, barred death claim. 168 A. 418. Finally, Division application determined that the of Knabe to this case obviated the need for the court to reach statute, defendant’s contention that the Affidavit of Merit N.J.S.A. 2A:53A-27, applied required and also complaint. dismissal of the Miller, 742A.2d 572. certification, granted

This Court 749 A.2d 370 (2000). We now overrule plaintiff Knabe and hold that filed a timely complaint wrongful death.

II. widely The view English embraced at common law was that, court, in the Ellenborough, words of Lord “in a civil being death of a human complained could not be injury.” of as an Bolton, 170 (K.B.1808). Baker v. Eng. Rep. Many American English courts followed the common-law trend and resisted wrongful death judges claims because generally believed that such improperly require claims would judicially them “to calculate the life; value of human ... would lead to large endless cases with verdicts; that ... human life is revolting sacred and it would be to compensate money; its loss with impossible and that it is to pecuniary Sartin, calculate the Farley value of human life.” v. (1995) (citations omitted). 195 W.Va. 466 S.E.2d Jersey Whether New subject followed that trend is still a of Llarena, Negron 296, 315-16, debate.

(1998) (Handler, J., concurring). “This rule remained the domi that, despite illogical rule, nant view result under this it was cheaper kill merely injure one’s victim than to him or her. For live, if one’s victim were to bring against the victim could an died, however, If tortfeasor. the victim right bring an Gary Meadows, action met a similar fate.” A. Wrongful Death Unborn, and the Society Lost Legal 13 J. Med. remedy for families of those who died because The lack Keeton, Dobbs, led to W. D. the fault of another often destitution. Owen, Prosser on Law Torts R. Keeton & D. & Keeton (5th ed.1984). hardship, English § 127 at 945 To alleviate that the 1846, passed the Fatal Accidents Act of also known Parliament protect Campbell’s Recognizing Ibid. the Lord Act. need beneficiaries, York led this nation’s movement with the 1847 New after Lord passage of the first death act modeled Jersey § Campbell’s 7 New Act. 22A Am.Jur.2d Death 1848, 151, patterned in L. p. suit with which was also followed 1848 Llarena, supra, Negron Act. N.J. at Campbell’s after Lord v. 156 (citations omitted). 315, 716 A.2d 1158 current version part wrong Jersey’s Wrongful provides Death in that a New Act “[wjhen pursued person ful death action the death of a act, default, would, by wrongful neglect if caused such as ensued, injured person maintain death had not have entitled the resulting injury, damages person for who an action damages injury have been for the if death had not would liable ensued shall be N.J.S.A. 2A:31-1. The Act further states liable.” “[ejvery brought chapter under this shall be com decedent, menced within 2 after the death of the and not thereafter.” 2A:31-3. N.J.S.A. Jersey’s Wrongful spawned

New Death statute has five deci sions bear on this case. The first is Knabe v. Hudson Bus 418, Co., 333, Transp. upon by 111 A. supra, N.J.L. 168 relied 303, Taggert, The others Division. are v. 43 N.J. Graf Park, Inc., (1964), 204 A.2d 140 Lawlor v. Mem. Cloverleaf 326, (1970), Sarno, 99, 266 A.2d v. 569 Alfone (1981), 315, aff'g (App. modifying N.J.Super. A.2d 9 and Div.1979), 333, Lathrop, 403 A.2d Silverman (App.Div.1979). opinions represent gradation, Those first polarization, approaches. and then of various

A. Knabe Knabe, injury January In on an befell the decedent 3, 1930. An July and he died on under the action was commenced Appeals Death Act on 1932. The of Errors June Court & Co., accepted reasoning Jersey Pulverizing Coulter v. New (Sup.Ct.1932), Misc. 163 A. 661 and concluded that a N.J. “right Wrongful of action” under the Death Act did not vest when Knabe, 334-35, supra, the decedent died. 111 N.J.L. at 168 A. stated, that, agree 418. The “[w]e [with ] Court Coulter where any by injured right living party of action was barred death, limitation before his the Death Act ... does create right personal representative.” of action 168 A. adopted perception legislative 418. Knabe Coulter’s intent underlying Wrongful Death Act: lingered [If no move, and made his twenty years representative DJecedent right injury forgotten could then assert a of action to recover for an one by every injured, rights who on

but the had his Such could not have twenty years. slept legislative been the intention.

[Coulter, 7, 163 661.] 11 N.J. Misc. at A understanding, Based on that Knabe determined that the Act required personal injury a viable at in claim the time of death representative order for decedent’s to maintain a not, however, cause of action. Knabe did base that conclusion on Act, but, rather, statutory language Wrongful the Death solely upon legislative relied the Coulter view of the intent. Knabe, 334-35, 168 supra, N.J.L. at A. 418.

B. and Lawlor Graf prevailed thirty years Knabe for the next until a subtle modifi 303, in A Taggert, supra, cation occurred 43 N.J. .2d Graf 140, Park, Inc., 326, and Lawlor v. Mem. Cloverleaf A .2d 569. child, parents The issue was whether the of a stillborn Graf womb, injuries who suffered while the mother’s could recover Graf, supra, the Death Act. A.2d 140. under holding precluding recovery injuries in Graf, The ultimate child, analysis. the unborn is irrelevant to our We look instead to the discussion of when a death action can be Graf and, also, brought scrutiny the Court’s of the statute. Id. at 305- the dicta Court observed 204 A.2d 140. Graf 2A:31-1, phrase, the “such particularly, more language in N.J.S.A. ensued, injured person the would, have entitled if death had not preclude intended to damages,” was not an action for to maintain bring malpractice injured party failed to a recovery when an only preclude Rather, read “to should be the statute action. recovered injured person could not have recovery the where or the act did not commit the defendant because right his to recover.” would have barred own conduct deceased’s (citations omitted). Ibid. Lawlor, supra, 56 N.J. conclusion.

Lawlor reached the same case, decedent, placing In that the while 266 A.2d 569. injured. grave, a hole and was fell into flowers on her mother’s against complaint A.2d She filed Twenty-six after the acci cemetery charging negligence. months died, cemetery dent, injuries. After she she died from complaint against hospital and the doctors third-party filed a subsequently plaintiffs representatives treated her. The who original complaint to include the filed an amendment allowed the amended hospital. and the Because Court doctor filing, time of the discussion complaint to relate back to the than two wrongful-death action could be filed more whether a Nonetheless, alleged malpractice was dictum . years after the Court, Jacobs, language writing examined the for the Justice 2A:31-1, person provided: the death of N.J.S.A. which “When would, act, default, by wrongful neglect or such as caused if ensued, injured person to main death had not have entitled (quoting damages.” Id. at tain an action for 2A:31-1). favorably on out-of-state He then commented N.J.S.A. statutory authority “persuasive position that the adopted regard injury, terminology the character of the without ‘relates to ” 344-45, Id. at 266 A.2d question the of time of suit or death.’ (citation omitted). speculation focus from about and Lawlor thus shifted' the Graf itself, language of the Act which Legislature’s intent to the the addressed, explicitly many had not and noted that out-of- Knabe contrary interpreted language to the state decisions had intimated, strongly holding of Knabe. and Lawlor but did Graf determine, require a that the death statute does not injury prerequisite filing personal viable action as a to the of a wrongful death cause of action and Silverman

C. Alfone by the in That view was embraced Division Alfone Sarno, Alfone, In N.J.Super. 403 A.2d 9. malpractice in in decedent sued Dr. Sarno for 1968. She died death, her father 1974. Within two of her commenced action, alleging that the caused her Judge King [wrongful-death] “the cause of death. asked whether is, [statutory] language, totally view of the derivative rights by possessed from the decedent as of the time of death or is independent rights[,] separate of action of decedent’s cause inhering in the 403 A.2d 9. He beneficiaries.” Wrongful concluded that beneficiaries under the Death Act have a separate independent from and of the decedent’s cause of action malpractice action. Id. at 403 A.2d 9. That conclusion found its source in Lawlor: jurisdiction in this of the character of

The continued validity derivative-dependent [wrongful-death] light [di ]ictum cause of action is most questionable our in Lawlor. the unanimous Court opinion Supreme The Court’s to the out-of- reference Supreme “persuasive position” many terminology state to the Knabe which hold that “the cases, view, contrary statutory injury, regal'd to of suit ‘relates to the character of the without time question ” though dictum, convinces us that Knabe has been discredited and death,’ would not now be followed Court. We therefore the view by Supreme accept nothing terminology than that that the means more where has statutory person injured a tortious act which later causes his the beneficiaries under death, been light death act have a to action, separate independent qualified strong against damages. only by policy recovery duplicate (citations omitted).] 325, 327-28, [Alfone, supra, ruling by panel anticipated this Court over- thus Alfone review, however, turning Upon Knabe. the Court allowed the began by ground. We wrongful but on a narrower death action law, it prior case nor did stating that “Lawlor did not overrule by to presented this case. It left that decision the issue decide 5, N.J. at 106 n. Alfone, supra, 87 future determination.” maintaining -wrongful that A.2d 857. We then determined damages availability action at require the of an action does not 102, observing 857. In of death. Id. at 432 A.2d the time separate rights in the beneficia wrongful death action creates “the ries,” suggestion Lawlor and the “agree[dj with the the Court of the action is not holding of other authorities maintenance brought by while by judgment in a suit the decedent barred upon wrongful contingent not alive” and that “a death action is inju continuing availability personal action decedent’s of an added) (citations 108-09, (emphasis A.2d ries.” Id. at omitted). issue,

Although appeared to resolve the decision Alfone from the matter before us because the decedent facts differ Alfone pursued malpractice judgment prior to her death. Id. at case Lawlor did not 432 A.2d 857. The Court also stressed that law, prior presumably referring to Knabe. overrule case Thus, analogue to 106 n. 432 A.2d 857. is not a factual Alfone bar; fully precise it address the issue before the case at nor did us. Lathrop, supra, N.J.Super, at 403 A.2d

Silverman day on the that the Division decided decided same “[djefendant’s by rejected panel, also same Alfone ... contention that the death action is barred based on allegedly dependent-derivative character of the action.” The personal injury during claim his decedent Silverman filed a lifetime, expiration of of limitations. Id. but after the the statute passed away, After the his execu- 403 A.2d 18. decedent complaint trix amended the to include a death claim. personal injury- granted summary judgment trial court on the claim, holding survival it was barred the statute succinctly appeal, Judge King identified the issue limitations. On injury-survival personal “whether the time-bar of the 340, 403 operates death action.” Id. at also bar Appellate Division noted that the defendant relied A.2d 18. The upon analysis to assert that the Death Act did the Knabe personal representative in the after death right a of action create by right by was barred the statute of if the of action the decedent 340-41, A.2d 18. “Defen limitations his death. before action is is based that the death barred dant’s contention action, the allegedly dependent-derivative character of on the day at theory rejected v. Sarno." Id. which we have this Alfone court also concluded that that 403 A.2d 18. The Silverman in the limitations contained reasoning with the statute of conflicts reasons, 18. For those Wrongful Act. Id. at 403 A.2d Death brought within two allowed the action to be Division A.2d 18. years of the decedent. Id. after the death requiring doing, set aside concerns about In so Silverman wrongful- recognized that litigate stale claims and defendants purpose than actions. actions serve a different death statutory language at referred that the issue Silverman concluded injury injury, timing of the of the not to to the character attempts at redress. decedent’s

III. construction, statutory we look first general rule of “As Butler, 220, 226, language State v. to the statute.” (1982). Here, provides that a A.2d 399 the Act pursued: neglect or such as default, is caused act, When the death of a person injured an to maintain ensued, if death had not have entitled would, person resulting injury, damages been from the who would have action for person damages injury if shall be liable. for the death had not ensued liable [N.J.S.A. 2A:31-1.] guided by principle that the Act is remedial are also We nature, & L. liberally construed.” Turon v. J. and thus “is to be Co., Construction disputed clause refers to the charac- contends that the

Plaintiff injury by likening to an action for underlying action it ter of the lifetime, instant brought by his or her not its the decedent within availability, only obligation file two that his is to within hand, Defendant, the other contends that death. on argues “if Defendant language supports the Knabe rule. ensued,” decedent not have been “entitled death had not would timely damages” ... maintain an action for because she did result, asserts, damages. As a defendant file the initial action for timely personal injury plaintiffs failure to file a action bars this however, ig- interpretation, wrongful death action. Defendant’s language, as would” which indicates a nores the critical “such legislative merely personal injury cause of action intent to use type injuries compensable Act. example an of the under the language pertains injury,” rather That to the “character requiring personal injury cause of action as a than a viable maintaining wrongful prerequisite to death claim. interpretation with the Act’s Defendant’s also conflicts statute limitations, “[e]very provides brought action this which under chapter years 2 after of shall be commenced within the death decedent, and not thereafter.” N.J.S.A. 2A:31-3. That section gives plaintiff years to a a two from the date of death which file interpretation wrongful death action. Defendant’s would subvert explicit language, plaintiff only years have would two Silverman, injury in file from the date of the which to suit. 341, 168 403 A.2d 18. Finally, paradox. unacceptable the Knabe rule creates an rule, wrongful effectively Under that death claim could be time- Speiser, Wrongful before the death itself. Death and barred (1999). § example, person critically injured 11:10 For Injury, 1, 1, January January have until 2000 to file a on 1998 would away personal injury hypothetical passed action. If that victim on 1, action, January filing 2001 such an Knabe would bar the "without Thus, personal injury death claim. the failure to file a 1, claim, January 2000 would claim bar 2001, 1, January when the decedent not accrue until which did legislation avoid such an absurd result. Ibid. We construe to died. Schad, 156, 170, A.2d 1159 v. State theory, Graf, derivative-dependent originated After Knabe Lawlor, attempted only Alfone, all to not refocus and Silverman statutory language, which Knabe had not the actual the issue on addressed, results of the but also to avoid the harsh explicitly discussed, concur with we have we Knabe rule. For reasons with the Knabe. view is accord those efforts and overrule Our national trend. against majority that the statute runs of the courts have held [T]he considerable though even at that time the death, action from the date of

the death only living. she] [or while he was Only own action would have been barred decedent’s original injury, and consequently hold that it runs from the time of the few courts lost it ever has accrued. that the death action before omitted).] (footnotes at 957 [Prosser Keeton, & supra majority jurisdictions which have con Similarly, great “in the applicable a cause of question, period the limitation to sidered the in the creat wrongful death —whether contained statute action for begins general ing the cause of action or statutes limitation — Wrongful Death and Speiser, run from the date of death.” (1999); § v. Knud Hansen Injury, 11:10 see also Richardson (3rd Cir.1984) 1007, (applying Virgin Hosp., 744 Mem’l F.2d is the date hold “that the accrual date for the action Islands law to Inc., death,” Signal, injury); Iida n. Allied not date of 1994) (D.Hawai’i (holding wrongful death F.Supp. death from asbestosis brought years two of date of within diagnosis at time of death than two after accrued but more injury); Eldridge, 250 time of Hart v. rather than at decedent (“[S]tatute (1983) for a of limitations 299 S.E.2d Ga. malpractice begins emanating from medical death action death, negligent date of the run the date of not from the practitioner.”); Chapman Pace Cardiac act or omission (certified (1983) makers, Inc., 386-87 105 Idaho 673 P.2d court) (“[T]he law is clear that question from federal district wrongful the death of the death accrues on cause of action the cause of party, This is so because injured and not before. 384 decedent____ The cause action

action did not accrue to during altogeth- is injured person to an his lifetime which accrues accruing person’s heirs separate the cause of action er from injury.”); Bank and Trust die that Farmers [or she] should he (“[T]he Rice, 510, (Ky.1984) 512 statute of Co. v. 674 S.W.2d death of the wrongful death actions runs from the limitations decedent, personal though action for even there was no viable death.”); malpractice injury negligence medical or at the time of (“[A]n Fink, 337, (Mo.Ct.App.1987) Bregant 338 v. S.W.2d resulting malpractice wrongful death for a death action, action.”); malpractice Krowicki v. Elizabeth not a St. 1023, 590, (N.Y.App.Div.1985) Hosp., 113 A.D.2d 494 N.Y.S.2d by two-year (holding wrongful governed that action for death was actions, wrongful death period of limitation for commencement of one-half-year period applying not two and to medical actions, notwithstanding allegedly malpractice fact that death re- malpractice); Hospital, Ness v. Aloisius sulted from medical St. (N.D.1981) (holding malprac- 301 N.W.2d 652-53 medical actions, applicable tice statute limitations not though wrongful upon malprac- medical even death action is based tice); Joseph Hosp., Koler v. St. 69 Ohio 432 N.E.2d St.2d (1982) (concluding although malpractice actions were limitations, governed by one-year wrongful death action statute of governed by two-year on medical was statute of based limitations); Shaughnessy Spray, Or.App. P.2d (1981) (“[T]he period ap- death statute’s limitation period plies to all death actions and the tort limitation germane if does not which would have been death had resulted apply.”). majority

Commentators also endorse the view. Prosser states: It is not at all clear ... that such of the death acts ever were intended to provisions where the deceased once had a cause of but it has action, prevent recovery seem to terminated before his death. The more reasonable would interpretation original at the of some tort on the are directed they necessity part giving instance, under circumstances rise to in the first rather defendant, liability changes affecting than to in the situation the interest of the subsequent only decedent. 957.] at supra

[Prosser Keeton, & suggests argument liability Speiser that the that “the tortfeasor’s period ... within a reasonable of time ... is should be established Nevertheless, convincing.” § equally Speiser, supra at 11:10. he “unjust.” barring death claims is concludes such may victims be disinclined to Ibid. It is understandable that some action, pursue malpractice their focus is on a either because survival, reasons, of and the then decide or for a host other heirs pursue wrongful injured party’s a death claim after the death. Ibid. hold that the limitations of 2A:31-3 do not

We N.J.S.A. jurisdictional procedural might prevent speak to or matters Rather, they pertain instituting an action at death. decedent solely injury. Alfone, supra, at to the character of the 106-07, 857; Lawlor, 344-45, A at 432 .2d 266 A.2d statutory recovery language designed prevent “to any could time have main death where the decedent never action, as, example, simply no tained an where there was Keeton, supra toward him.” at 954. tortious conduct Prosser & rule, majority Our conclusion is accordance with the as well as of well-known commentators. views principles suggest That conclusion does not indifference to of repose, stability, finality. are mindful that statutes of We provide party limitations should “freedom from burden defending Valley Enterprises, Fair stale claims.” Greco However, (App.Div.1969). our claims, filing death notwith allowance of such years pur standing gven plaintiffs of inadvertent inaction or delay, By comparison, poseful is not draconian. children born years today personal injury complaint up two after can file reaching age majority. represen 2A:14-21. For N.J.S.A birth-injured children to defer their claims for ten to tatives of They peril at their and such fifteen is not unusual. do so proof problems that there assume risk statutory they postpone other obstacles when the exercise of their despite In extant deferral. right. right to sue remains But their us, alleged the last act of the hiatus between the matter before filing wrongful death claim and the of the 1998 However, adjudication merits of that claim. may prevent justify precluding plaintiffs delay does urged here. grounds claim on

IV. of Merit application of the Affidavit not address the We do 2A:53A-27, statute, Nor do we plaintiffs to claim. N.J.S.A case, procedural aspects either any of this address other substantive, fragüe plaintiffs nature of other than to note claim. generally for the

Although proximate an issue cause Laboratories, Inc., 1, 27, jury, 734 A.2d Wyeth Perez v. Middletown, (1999) Township (quoting Garrison (1998) (Stein, J., concurring), 282, 308, we do N.J. in this case. suggest jury must decide issue issue, may resolve that as our occasions when a court There are Piedilato, concurring colleague Vega by Muniz v. notes. 496, 508-09, urge We therefore the motion 713 A.2d proximate fully the record on the issue of court to examine causation, ques any procedural as well as other substantive plaintiffs presented, and claim tions determine whether jury. of an by a The motion court will have the benefit considered issue, adversarially and will thus record on causation —honed Court, This without the be able to make an informed decision. record, proximate cause of that should not resolve benefit us, Moreover, is not question. the causation issue before grounds, and we not asked us to rule on those defendant has sponte grounds on to dismiss claim sua therefore decline not before this Court. panel summary, Knabe and reverse the

In we overrule independent A death is claim for below. claim for malpractice. interpret statutory language only We to refer to injury, require personal the character of the and not to a viable injury precedent maintaining cause of action as a condition wrongful death claim. Decedent’s failure to file an action in her plain lifetime does not bar the death action. We conclude that right outweighs tiffs to file the death claim defendant’s repose, light overarching preserve interest need to rights Legislature established for those who survive a Alfone, decedent. 87 N.J. at 432 A.2d A Act, only language different result not conflicts with the but extinguish wrongful could death action even before it came into reject existence. We such a result.

Reversed and remanded.

VERNIERO, J., concurring. analysis, correctly

In its careful the Court concludes that a independent death action and a action are claims. Thus, plaintiff period filed this lawsuit within the limitations separately contained in the I death statute. write emphasize nothing language prevents in the of that statute applying principles trial court from of causation and other any tenets to this or similar case. legal ‘logic,

“Proximate or causation is that combination of sense, justice, policy precedent’ point common in and that fixes a events, unforeseeable, beyond chain of some foreseeable and some Airlines, recovery.” People Express which the law will bar Inc. v. (1985) (citation 246, 264, Corp., Consol. Rail 100 495 A.2d 107 N.J. omitted). quotation proximate and “[T]he internal limit of cause is, ultimately, an issue of law and ... entails a of consideration Waldman, public policy and fairness.” v. 150 Williamson N.J. (1997). 232, 245, Ordinarily, proximate 696A.2d issues of cause Labs., Inc., jury questions. Wyeth are considered v. Perez 1, 27, occasion, however, N.J. 734 A.2d 1245 a court On (Second) may resolve issue itself. Ibid. The Restatement of may question Torts states that courts resolve for themselves the of jury a reasonable they if believe that legal proximate causation presented. “The actor’s on the facts causation could not find such harm another legal be a cause of to held not to conduct looking the harm to the the event and back where after conduct, highly extraordi- appears to the court negligent it actor’s brought the harm.” Restatement nary have about that it should 435(2) (1965). (Second) § Torts authorizing Jersey in courts to ample precedent New There is any in which reason proximate cause in case the issue of resolve that element of the not differ on whether able minds could See, e.g.; Caputzal v. The plaintiffs case has been established. (1966) Co., 78-79, (discussing Lindsay 48 N.J. rule). case, authority support In a recent in case law and other (1998), Piedilato, 496, A.2d 442 this Vega by v. Muniz authority dismissing plaintiffs case on Court invoked boy fourteen-year-old trespassed grounds. Vega, In causation apartment building and fell into an the defendant’s on the roof of 499-500, shaft, suffering tragic injuries. 713 A.2d 442. air Id. allegations negligence, includ plaintiff numerous advanced prevent to the roof for ing the failure to access defendant’s security A.2d 442. purposes. claim, plaintiffs summary upholding

In dismissal of the explained: Court jury find that the lack of security We do not believe that fair-minded could injuries was the was cause of the fall. The cause of the accident measures this divide. Even when have special unsuccessful effort leap parties requiring foreseeable harm, to others them to act issue prevent relationship Doering, See Cowan cause proximate always present. (1988) (holding causation be issue in case of

A .2d 159 would incompetent window). leaping from patient hospital [Ibid.] case, Dr. present Miller died on March In the Mrs. twenty years prior to Sperling’s alleged tortious conduct occurred pharmacy logs, According undisputed decedent’s death. to the drug question, prescribed Sperling Dr. was Ovulen twenty years dece- renewed some before 1974 and last logs, merely confirm the than those which dent’s death. Other dates, charts, prescription journals, physi- there are no available notes, any cian support plaintiffs medical records of kind to Moreover, patient claim. both the doctor and his have never been deceased, deposed making impossible and are now it to consider Against testimonial evidence from the central fact witnesses. backdrop, question for the motion court will be whether a jury reasonable alleged could find that the doctor’s conduct caused complained-of injury. I do not diminish the distress and sense of sadness that inevitably person spouse occur whenever a loses a or loved one. which, This given be a rare case in the lack of medical witnesses, unavailability records and capable there is no issue legitimate context, resolution. In a different Divi- right sion has observed that “the to be free of stale claims time prevail right comes to prosecute over the them.” DeDisto v. Linden, 398, 406, (App.Div.1963) 193 A.2d 870 1(b)(1) (quoting (1948)). § 53 C.J.S. Limitations Actions n. 19 fade, unavailable, “Once memories witnesses become and evidence lost, longer possess courts no capacity distinguish valid claims from those which Galligan are frivolous or vexatious.” Serv., Inc., Westfield, 188, 192, Ctr. sum, agree

In I plaintiff with the Court that filed this action period within the limitations contained in the not, ease, holding any statute. That does this or future preclude a determining legal viability court from of a claim applying principles of causation or other traditional tenets.

For reversal and remandment —Chief Justice PORITZ and STEIN, COLEMAN, LONG, VERNIERO, Justices LaVECCHIA and ZAZZALI —7.

Opposed—None.

Case Details

Case Name: Miller v. Estate of Sperling

Court Name: Supreme Court of New Jersey

Date Published: Jan 22, 2001

Citation: 766 A.2d 738

Court Abbreviation: N.J.