(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued September 11, 2000 -- Decided February 22, 2001
COLEMAN, J., writing for a majority of the Court.
The issue raised in this medical malpractice-wrongful death case is whether the Wrongful Death Act
permits equitable tolling of its two-year statute of limitations for minors whose wrongful death claims were filed
twenty-seven days late.
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 LaFage 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 diagnosed again with a muscle pull. Later that
day, Mrs. LaFage gave the nurse a cup of Mr. LaFage's phlegm and asked how a muscle pull could 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 a Philadelphia 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 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 the 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 he would handle the case and file a lawsuit on her behalf.
In addition to speaking to Falciani on or about March 13, 1995, Mrs. LaFage spoke with her cousin, Dr.
Romano, on March 22, 1995. Dr. Romano informed her that he believed she had an overwhelming case of
malpractice against all of the health care providers, including the nurses.
A wrongful death and survivorship complaint was filed by Falciani on April 4, 1997, two years and twenty
seven days after LaFage's death. Defendant, Dr. Jani, filed a motion to dismiss because the complaint was filed
more than two years after the date of death. In opposition to the motion, 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.
That report indicated that the cause of death was a massive bacterial infection of unknown origin in LaFage's chest
cavity.
In response to Dr. Jani's motion to dismiss the complaint, 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 under the reasoning of Negron v. Llarena,
156 N.J. 296 (1998), the
discovery rule could be applied to Wrongful Death Act claims. However, the trial court found that even under the
discovery rule, the two year limitations period began to run on March 22, 1995, when Mrs. LaFage spoke to Dr.
Romano. Thus, the trial court held that Mrs. LaFage's wrongful death and survival claims were barred because her
April 4, 1997, complaint was filed more than two years after her cause of action accrued.
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 trial court barred the Survival Act claims of the children, however, holding
that those claims belonged to the estate and no distinction could be made between the children and the estate.
The Appellate Division declined to intervene on an interlocutory basis. The Supreme Court granted leave
to appeal.
HELD: The Wrongful Death Act's statute of limitations may be equitably tolled for minors.
1. The Court agrees with the trial court's conclusion that even if she could invoke the discovery rule, Mrs. LaFage's
wrongful death claim was untimely. It therefore declines to address the broader question whether the discovery rule
generally should be applicable to wrongful death claims. (Pp. 6-9)
2. Historically, the Court has made a distinction between a procedural statute of limitations and a substantive one.
A substantive statute is found in legislation creating a cause of action that did not exist at common law. Because the
prevailing view has been that a wrongful death claim was not recognized under New Jersey common law, the
Wrongful Death Act's statute of limitations would be substantive. Substantive statutes of limitation have been
applied strictly, while procedural statutes of limitations were flexibly construed, subject to equitable principles.
More recent decisions such as Negron, however, have marked a retreat from the inflexible approach to interpreting
substantive statutes of limitation. These decisions recognize that the application of substantive statutes of limitation
depends on statutory interpretation focusing on legislative intent and purpose. The Court's examination of the issue
whether there should be equitable tolling of wrongful death claims leads it to conclude that the Legislature would
not have intended to preclude it. (Pp. 9-25)
3. More importantly, the view that there was no common law cause of action for wrongful death in New Jersey is
based on the mistaken application of dictum from an old English case. The Court is convinced that an action for
wrongful death did exist at common law prior to the enactment of N.J.S.A. 2A:31-3 and its predecessor statute.
Thus, the statute of limitations contained in the Wrongful Death Act is really procedural and indisputably subject to
equitable principles. Tolling for minors therefore will apply to the Wrongful Death Act in this and other appropriate
cases. (Pp. 25-39)
As MODIFIED, judgment of the Law Division is AFFIRMED.
JUSTICE STEIN concurs in that portion of the majority opinion holding that the limitations period for
filing a wrongful death claim is tolled during the infancy of minors. He does not join Part III of the opinion, which
recognizes a common law cause of action for wrongful death, expressing the view that the Court need not resolve
that issue to decide this appeal.
JUSTICE LaVECCHIA concurs in that portion of the majority's holding affirming the dismissal of Mrs.
LaFage's wrongful death and survivorship claims, and dissents from the holding applying equitable tolling to the
minor children's wrongful death claims. She is of the view that the statutory wrongful-death cause of action is
authorized with the clear prescription that it be brought within two years of death, not two years from some later
date as determined by tolling notions; and that it is for the Legislature to provide relief from the two-year limitation
period, not the Court.
CHIEF JUSTICE PORITZ and JUSTICES LONG and ZAZZALI join in JUSTICE COLEMAN's
opinion. JUSTICE STEIN has filed a separate concurring opinion. JUSTICE LaVECCHIA has filed a
separate opinion concurring in part and dissenting in part, in which JUSTICE VERNIERO joins.
SUPREME COURT OF NEW JERSEY
A-65/66/
92 September Term 1999
CARMELLA R. LAFAGE,
individually; CARMELLA R.
LAFAGE, as Executrix of the
Estate of Richard A. LaFage,
deceased,
Plaintiff,
v.
DEVENDRA JANI, M.D.; DIANA
MATHIAS, R.N.; DIANE KLEIN,
R.N.; KAREN MARTIN, R.N.;
JOHN HOBSON, R.N.; D.L.
SEALS, R.N. and VICTORIA
MILLS, R.N.;
Defendants-Appellants
and Cross-Respondents,
and
JANE DOE, R.N. being a
name/names fictitious (No. 1
through No. 6),
Defendants,
v.
ANGELO J. FALCIANI, PA and
ANGELO J. FALCIANI, ESQUIRE,
Intervenors-Respondents
and Cross Appellants.
Argued September 11, 2000 -- Decided February 22, 2001
On appeal from the Superior Court, Law
Division, Salem County.
Timothy P. O'Brien argued the cause for
appellants and cross-respondents Diana
Mathias, R.N.; Diane Klein, R.N.; Karen
Martin, R.N.; John Hobson, R.N.; D.L. Seals,
R.N.; Victoria Mills, R.N.; (Paarz, Master,
Koernig, Crammer, O'Brien, Bishop & Horn,
attorneys; Mr. O'Brien and Mary Ann C.
O'Brien, on the letter briefs).
Stacy L. Moore, Jr., argued the cause for
appellant and cross-respondent Devendra
Jani, M.D. (Parker McCay & Criscuolo,
attorneys).
William J. Martin argued the cause for
intervenors-respondents and cross-appellants
(Martin, Gunn & Martin, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
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. 1 820 N.J. Laws 46 (1820). The statute was again supplemented in 1841 to create tolling for six months when the defendant had died. 1 841 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.
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 additional support for our conclusion that because the felony-merger doctrine that undergirds Baker was never adopted in New Jersey, our case law that applied Baker was mistaken.
Justice Handler's concurring opinion in Negron, supra, 156 N.J. at 307-20, convincingly establishes that New Jersey had a common law wrongful death cause of action before our first statute was passed in 1848. We now adopt his conclusion that our Wrongful Death Act is a codification of our common law. The practical effect of recognizing a common law wrongful death claim is that it provides an independent basis on which to allow equitable tolling of the Wrongful Death Act. Such recognition demonstrates that the statute of limitations contained in N.J.S.A. 2A:31-3 is procedural and therefore indisputably subject to equitable principles.
At some point after 1844, New Jersey, like nearly all other jurisdictions, followed the rule announced in Baker v. Bolton, supra, the first explicit holding that no civil cause of action existed at common law for the death of an individual. Recent analysis, however, has indicated that the Baker approach was ill-founded. As a result, some courts have begun to re-assert the common-law basis for wrongful death actions. See 65 Am. Jur. Trials § 7, at 289 (1997) (“Recognition of a common law action for wrongful death is increasingly being recognized in the United States.”).
The United States Supreme Court has lent some support to deviating from the Baker approach. The Court has held that there is a common law right to recovery for wrongful death under general maritime law. Moragne, supra, 398 U.S. 375 at 409, 90 S. Ct. at 1792, 26 L. Ed 2d at . Like our holding today, that decision also was reached after more than a century of following the Baker rule.
In The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1886), relying largely on Baker, the Supreme Court held that absent a federal statute, there was no common law cause of action for wrongful death under Federal Maritime Law for tortious deaths in state territorial waters. Id. at 213, 7 S. Ct. at 147-48, 30 L. Ed. at . That holding attracted a great deal of criticism. The Supreme Court revisited the issue nearly three-quarters of a century later in The Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed.2d 524 (1959). In The Tungus, the Supreme Court unanimously agreed that where a death occurring in state territorial waters is left remediless by the general maritime law and by federal statutes, a remedy may be provided by any applicable state law that recognizes a cause of action for wrongful death. Four Justices dissented, however, from the Court's holding that “when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.” Id. at 592, 79 S. Ct. at 506, 3 L. Ed 2d at . The dissenters would have held that federal maritime law could utilize the state law to “supply a remedy” for breaches of federally imposed duties, without regard to any substantive limitations contained in the state law. Id. at 597, 599, 79 S. Ct. at 509, 510, 3 L. Ed 2d at .
Almost immediately after the Court decided The Tungus, it became critical of its own decision because its holding in The Tungus had led to uncertainty within the Court itself. See Hess v. United States, 361 U.S. 314, 80 S. Ct. 341, 4 L. Ed.2d 305 (1960); Goett v. Union Carbide Corp., 361 U.S. 340, 80 S. Ct. 357, 4 L. Ed.2d 341 (1960).
More than a century after The Harrisburg had been decided, the Court conducted a fresh examination of the entire subject in Moragne, supra, 398 U.S. 381, 90 S. Ct. 1772, 26 L. Ed 2d at
. The Court concluded that the primary source of prior confusion emanated from its erroneous decision in The Harrisburg. The Court acknowledged that The Harrisburg was dubious when it was rendered and had become such an unjustifiable anomaly under present maritime law that it should no longer be followed. Hence, the Court in Moragne overruled its earlier holding in The Harrisburg. First, the Court acknowledged that the holding in The Harrisburg had little justification except in primitive English legal history, a history far removed from the American Law of Remedies for Maritime Deaths. The Court deemed it a fallacy to have ever adopted the Baker rule, which was based on the felony-merger doctrine that was repudiated by the House of Lords in 1916. Moragne, supra, 398 U.S. at 383-84, 90 S. Ct. at 1778-79, 26 L. Ed 2d at . The Court further explained:
The most likely reason that the English rule [Baker] was adopted in this country without much question is simply that it had the blessing of age. . . . Such nearly automatic adoption seems at odds with the general principle, widely accepted during the early years of our Nation, that while “[o]ur ancestors brought with them [the] general principles [of the common law] and claimed it as their birthright; * * * they brought with them and adopted only that portion which was applicable to their situation.” Van Ness v. Pacard, 2 Pet 137, 144, 7 L. Ed. 374 (1829) (Story, J.); The Lottawanna, 21 Wall. 558, 571-574, 22 L. Ed. 654 (1875); see R. Pound, The Formative Era of American Law 93-97 (1938); H. Hart & A. Sacks, The Legal Process 450 (tent. ed. 1958). The American courts never made the inquiry whether this particular English rule, bitterly criticized in England, “was applicable to their situation,” and it is difficult to imagine on what basis they might have concluded that it was.
[Moragne, supra, 398 U.S. at 386, 90 S. Ct. at 1780, 26 L. Ed 2d at (alteration in original).]
The recognition of a common law basis for wrongful death
actions is not limited to the United States Supreme Court. The
Supreme Judicial Court of Massachusetts has explicitly held that
its wrongful death statute is, contrary to previous precedents, a
codification of the common law. Gaudette, supra, 284 N.E.
2d at
229 (holding that “the right to recovery for wrongful death is of
common law origin”). Several other courts have cited the common
law approach with approval. See Haakanson, supra, 600 P.
2d at
1092 n.11 (finding that Alaska's wrongful death statue is not in
derogation of its common law, but stating that if there was no
statute, the court would follow the lead of Moragne and
Gaudette); Wilbon, supra, 382 N.E.
2d at 785 (allowing minor
plaintiffs' action to toll wrongful death statute of limitations
despite precedent stating that there was no common law right to
recover for wrongful death and quoting with approval assertion
that Baker v. Bolton rule was “'obviously unjust, . . .
technically unsound . . . and based upon a misreading of legal
history'”) (quoting 3 W. Holdsworth, History of English Law 336
(3d ed. 1927)); Salazar v. St. Vincent Hosp.,
619 P.2d 826 (N.M.
Ct. App. 1980) (noting existence of common law right to recover
for wrongful death in New Mexico).
Hawaii has always held that a common law right of action for
wrongful death exists. 65 Am. Jur. Trials § 4 (1997) (citing
Rohlfing v. Moses Akiona, Ltd.,
369 P.2d 96 (Haw. 1961), rev'd on
other grounds, Greene v. Texeira,
505 P.2d 1169 (Haw. 1973)).
Georgia began to recognize a right to sue for wrongful death
before it passed its wrongful death statute, without explicitly
acknowledging that the right derived from the common law. Id. §
6 (citing Shields v. Yonge,
15 Ga. 349 (1854)). A recent case
indicates Georgia's continued willingness to recognize a common
law basis for wrongful death actions. Id. § 7 (citing Velez v.
Bethune,
466 S.E.2d 627 (Ga. 1995) (allowing cause of action for
wrongful death where plaintiffs asserted that defendant physician
terminated life support for their nine day-old child without
their consent)). At least three other cases recognized a common
law action for wrongful death prior to 1848. Dennis M. Doiron, A
Better Interpretation of the Wrongful Death Act,
43 Me. L. Rev.
449, 468 (1991) (citing Plummer v. Webb,
19 F. Cas. 894 (No.
11234) (D. Me. 1825); Cross v. Guthery,
2 Root 90 (Conn. Super.
Ct. 1794); Ford v. Monroe,
20 Wend. 210 (N.Y. Sup. Ct. 1838)).
Further, the Minnesota Supreme Court has stated that it gives all
statutes “a fair construction, with the purpose of its enactment
in view, not narrowed or restricted because it is a substitute
for the discarded common law.” Teders v. Rothermel,
286 N.W. 353, 354 (Minn. 1939) (internal quotation marks omitted).
Thus, while today's decision does not require us to base
minority tolling to the Wrongful Death Act on the common law, we
are now convinced that an action for wrongful death did exist at
common law, prior to the enactment of N.J.S.A. 2A:31-3 and its
predecessor. At common law, statutes of limitations were
considered to be procedural in nature because they limit only the
procedural remedy and not the right. Willis L. M. Reese and
Maurice Rosenberg, Conflict of Laws § 3 at 425 (8th ed. 1984);
Sam Walker, Forum Shopping for Stale Claims: Statutes of
Limitations and Conflict of Laws,
23 Akron L. Rev. 19, 22 (1989).
We hold that because N.J.S.A. 2A:31-3 is a procedural statute of
limitations that relates to a cause of action cognizable under
our common law, an additional reason exists to allow tolling
based on equitable principles.
Only after examining the weighty considerations that underlie the stare decisis doctrine, which has at its core the need for predictability in cases, we have come to the conclusion that judges of earlier generations who concluded that a wrongful death cause of action did not exist at common law misperceived what the common law was in New Jersey. There is no question in this case of any change in duty owed by health care providers to their patients. The change is remedial and not substantive; therefore, the change does not affect the confidence of people, such as health care providers, in their ability to predict the legal consequences of their actions.
This is not the first time that our Court has overturned what had been judicially determined to be the common law or public policy of this State for many years. For example, statutory forfeiture of innocent property had been conducted in non-jury proceedings for more than a century prior to 1998. Notwithstanding that historical, albeit mistaken, practice, this Court recently held that such proceedings should have been conducted before a jury beginning as early as 1776. State v. One 1990 Honda Accord, supra, 154 N.J. at 381-93. Another example is the charitable immunity doctrine, first declared by our courts in 1925. D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61 (E. & A.). Thirty-three years later this Court abrogated the doctrine in a trilogy of cases. Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958); Collopy, supra, 27 N.J. 29; Benton v. Y.M.C.A., 27 N.J. 67 (1958). In overturning existing case law, the Court acknowledged that “[s]ince the earliest days our courts have recognized and discharged the vital responsibility of re- examining questioned decisions whether they be their own or those of their predecessors.” Collopy, supra, 27 N.J. at 46. Other well-settled, but similarly mistaken common-law principles, have been rejected, including the requirement of privity of contract in breach of warranty cases, Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 415-16 (1960), and an infant's disability to sue for prenatal injuries. Lynch, supra, 162 N.J. at 232; Smith v. Brennan, 31 N.J. 353, 359-66 (1960).
In the area of tort law, such as professional negligence, there can be little, if any, justifiable reliance on procedural law because the rule of stare decisis is admittedly limited. We fully agree with Dean Roscoe Pound when he stated: “[S]tare decisis has no legitimate application to doctrines of the law of torts built upon a mistaken foundation persisting in the books after that foundation has been undermined, which are out of accord with general principles recognized today, so that if they are rejected the general law is clarified rather than unsettled.” Roscoe Pound, Some Thoughts About Stare Decisis, 13 NACCA, L.J. 19, 23 (1954). Because our earlier judicial conclusion that New Jersey did not have a wrongful death cause of action at common law found its way into our law through misconception, because that approach operates harshly when equitable principles are not applied to ameliorate its harshness to conform with modern concepts of justice and fairness, and because the underpinning for the English rule that was followed in New Jersey for so long has been condemned, the time has come for its elimination. Simply stated, there was historical