Tolling of Statute of Limitations for Claims by Minors Does Not Apply to Minors Who Have Died, and on Whose Behalf a Wrongful Death Case is Brought

Monk v. Kennedy University Hospital, Inc., 473 N.J. Super. 178 (App. Div. 2022). This opinion today by Judge Berdote Byrne is, I believe, her first published decision for the Appellate Division. The issue in the case involved the statute of limitations, and the statute, N.J.S.A. 2A:14-21, that allows a plaintiff who is under age eighteen or mentally disabled when the cause of action accrues under certain statutory limitations periods to “commence the action . . . within the time as limited by those statutes, after reaching majority or having the mental capacity to pursue the person’s lawful rights.” That is referred to as “minority tolling,” in that it tolls statutes of limitations for minors or mentally disabled persons.

In this case, plaintiffs sued defendants for the wrongful death of their son, J.W. J.W.’s mother, who had a history of miscarriages and pre-term deliveries, had received prenatal care from various defendants. She was admitted to the defendant hospital, with complaints of cramping, after 24 weeks of pregnancy, was discharged from the hospital, began to experience labor, and was readmitted. J.W. was then delivered by emergency caesarean section and placed in neonatal intensive care. He died about six months later.

Plaintiffs sued for medical malpractice, negligence, and wrongful death. They conceded that the case was brought “on behalf of [m]inor plaintiff only.” The statute of limitations for personal injury claims generally, and for wrongful death claims in particular, is two years, but plaintiffs did not file suit until over four years after J.W. died.

Defendants moved for summary judgment based on the statute of limitations. The Law Division denied that motion, invoking the minority tolling statute. The Appellate Division granted defendants’ motions for leave to appeal and, applying de novo review, today reversed the denial of summary judgment.

Judge Berdote Byrne explained that minority tolling did not apply because the Legislature contemplated that a “minor” “denotes a living human being: ‘an infant or person who is under the age of legal competence'” (quoting Black’s Law Dictionary). It was thus inappropriate for plaintiffs to assert that the case was brought on behalf of J.W. “Because the child was deceased at the time of the filing of the complaint, plaintiffs’ remedies were limited to actions on behalf of the minor’s estate and actions by the beneficiaries of that estate, through the Survival Act and wrongful death statutes.” And those plaintiffs, who were not minors, could not invoke minority tolling.

Plaintiffs had relied heavily on LaFage v. Jani, 166 N.J. 412 (2001). There, minor plaintiffs brought a wrongful death claim due to the death of their parent. Judge Berdote Byrne pointed out that the Supreme Court in that case applied minority tolling “to the claim brought on behalf of the minors, not the decedent. Nothing in LaFage suggests minority tolling applies to a claim brought on behalf of a deceased minor.”

Judge Berdote Byrne found support for defendants’ position in the language of the applicable statutes, and in the fact that 2004 statutory amendments “are intended to limit minority tolling, not expand it.” She found persuasive the ruling in Schwarz v. Pub. Serv. Transp. Co., 8 N.J. Misc. 182 (Cir. Ct. 1930), that the protection of minority tolling “is removed by the infant’s death.”

As Judge Berdote Byrne summarized near the end of her opinion, “[t]he stated purpose of minority tolling is to enable a minor to attain a level of life experience or comprehension sufficient to hold him or her accountable for legal decision-making, an eventuality that can never be met by a deceased minor. We hold N.J.S.A. 2A:14-2(a)’s minority tolling provision applies to suits brought by or on behalf of a minor and is inapplicable to suits brought on behalf of minor decedents or their estates, and the trial court erred in its application of minority tolling.”

All hope was not lost for plaintiffs, though. They had also argued that they substantially complied with the statute of limitations. The Law Division had not reached that issue. Thus, while vacating the orders of the Law Division that had denied summary judgment to defendants, the Appellate Division remanded for consideration of the substantial compliance issue.