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Authored - NJ Contract Law Update - Tolling the Contractual Statute of Limitations Due to Insanity
Clark Alpert Provides Practice Pointers
MAY 25, 2012 | Windels Marx - Commercial Litigation

The general contractual statute of limitations in New Jersey is six years. N.J.S.A. 2A:14-1. There are various potential ways of attempting to "toll" or suspend the running of this statute of limitations (SOL) in order to successfully sue beyond the six-year period; some of the more common issues are:

  1. ongoing payments1; and
  2. "discovery"-related issues, including when the wrong could have been discovered, when the resulting damages could have been discovered, and fraudulent concealment.2

These are each topics for another day.

Today's topic is one of the least-considered methods of tolling the SOL: the insanity of the plaintiff. N.J.S.A. 2A:14-21 provides, among other things, that a person with a claim under N.J.S.A. 2A:14-1 who is "insane" "at the time of any such cause of action or right or title accruing" "may commence such action" within the specified number of years (six years as to contract actions) "after his coming to or being...of sane mind." This statute is rarely invoked with respect to insanity (as opposed to the age of minority also covered by this statute). Undoubtedly this rarity arises from two factors:

  1. the reluctance of the ordinary plaintiff to portray himself/herself as insane (even in the past tense); and
  2. the ostensible difficulty of proving the issue.

Insanity tolling may not be as difficult to prove as might first appear. Somewhat counterintuitively, the courts consistently hold that expert testimony is not required to prove 'tolling' insanity3. This can cut both ways; as was seen in the recent case of Kelsey v. Cohen, 2012 WL 1672889 (N.J.App.Div. April 18, 2012), where the plaintiff attempted to allege his own insanity but without an expert--and in the face of ongoing litigation efforts by the plaintiff that the court felt were de facto proof of competence (presumably meaning that whatever flaws the plaintiff's pleadings may have had, their author could not have been insane).

This analysis--assessing a plaintiff by the ostensible coherence of his/her pleadings--calls to mind a well-known case in which one can question whether the court should have raised the insanity issue sua sponte, even though the plaintiff overlooked it. In that case, Searight v. State of New Jersey4, the court's opinion implicitly questioned the plaintiff's competence; and therefore the court potentially could have raised the insanity issue on its own initiative.

Searight involved the following factual claims:

  • October, 1962, Searight was taken to the Eye, Ear and Speech Clinic in Newark, while in custody, and...the State of New Jersey there unlawfully injected him in the left eye with a radium electric beam. As a result, he claims that someone now talks to him on the inside of his brain. He asks money damages of $12. [sic] million.

The defendants sought to dismiss the claims on SOL grounds. In response, the court penned the following immortal reasoning:

  • The allegations, of course, are of facts which, if they exist, are not yet known to man. Just as Mr. Houdini has so far failed to establish communication from the spirit world (See E. L. Doctorow, 'Ragtime', pp. 166 -- 169, Random House, 1974), so the decades of scientific experiments and statistical analysis have failed to establish the existence of 'extrasensory perception' (ESP). But, taking the facts as pleaded, and assuming them to be true, they show a case of presumably unlicensed radio communication, a matter which comes within the sole jurisdiction of the Federal Communications Commission, 47 U.S.C. s 151, et seq. And even aside from that, Searight could have blocked the broadcast to the antenna in his brain simply by grounding it. See, for example, Ghirardi, 'Modern Radio Servicing', First Edition, p. 572, ff. (Radio & Technical Publishing Co., New York, 1935). Just as delivery trucks for oil and gasoline are 'grounded' against the accumulation of charges of static electricity, so on the same principle Searight might have pinned to the back of a trouser leg a short chain of paper clips so that the end would touch the ground and prevent anyone from talking to him inside his brain.

These remarks clearly indicate a belief by the court that the plaintiff was making chimerical claims. But rather than opining (or inviting briefing) as to the plaintiff's potential insanity and its effect on tolling--a legal issue which the plaintiff appeared not to be knowledgeable of, or was not competent enough to raise--the Searight court concluded that the SOL bar clearly appeared from the face of the Complaint. Thus, the insanity tolling issue was ignored, and the case dismissed.

Practice Pointers on Insanity Tolling

  1. Although an expert may not be necessary, expert testimony undoubtedly would be deemed probative. As a defendant, do not hesitate to seek a psychiatric exam of the plaintiff.
  2. Utilize the party's pleadings, other writings, or business dealings to prove his/her ostensible sanity.
  3. In the rare event that the claim of insanity is made by or on behalf of a party who is not pro se--and if you represent the party claiming insanity (or if your client's conduct leads you as counsel to believe there may legitimately be such a claim)--do not hesitate to obtain a psychiatric expert of your own to prove the point.
  4. Unlike other tolling arguments--which may often involve no more than a day, week, or month--insanity tolling can involve a matter of years or even decades. So do not take the issue lightly, but rather proceed proactively and with a clear plan.
  5. Do not count on the court raising the issue sua sponta.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011. His updates on New Jersey contract law are based in recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.


1 See Burlington County Country Club v. Midlantic Nat. Bank South, 223 N.J.Super. 227, 235 (Ch.Div. 1987)("Payment of or on account of a debt or obligation may also toll or revive the statute of limitations, thereby extending it for the statutory period from the time of such payment.").

2 See generally 54 C.J.S. "Limitations of Actions" ยง187 (2012).

3 See Nicolas v. Ocean Plaza Condominium Association, Inc., 73 Fed.Appx. 537 (3d Cir. 2003), further proceedings sub nom. Estate of Nicolas v. Ocean Plaza Condominium Ass'n, Inc., 388 N.J.Super. 571, 582-583 (App.Div. 2006). The Appellate Division ultimately ruled as follows (388 N.J.Super. at 582-583):

  • Defendant argues that plaintiff failed to provide any proof of Ms. Nicolas' insanity, because no expert report attesting to her insanity was presented). We disagree. We are convinced that a person's insanity for purposes of N.J.S.A. 2A:14-21 can be established under N.J.R.E. 701, through the testimony of laypersons, without the presentation of expert testimony. N.J.R.E. 701 provides, "[a] [lay] witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist ... in determining an issue." The "lay witnesses must have actual knowledge, acquired through the use of his or her senses, of the matter to which he or she testifies." State v. LaBrutto, 114 N.J. 187, 197, 553 A.2d 335 (1989); see also In re McCraven, 87 N.J. Eq. 28, 30, 99 A. 619 (Ch.1916) (holding that "[a] witness, not an expert, may, in a case of insanity, state facts as to the actions of the alleged lunatic, and then tell what, in his or her opinion, they indicate as to soundness or unsoundness of mind"). Additionally, the Third Circuit in Nicolas, supra, noted that "expert testimony is not required to establish whether a litigant is 'insane' for purposes of N.J.S.A. 2A:14-21." 73 Fed.Appx. at 541.

4 412 F.Supp. 413 (D.N.J. 1976). Searight involved tort rather than contract tolling; but the principles are essentially the same.

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