ANTHONY TOLA et al. v. STATE OF NEW JERSEY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3571-05T23571-05T2

ANTHONY TOLA and ELEANOR

TOLA,

Plaintiffs-Respondents,

v.

STATE OF NEW JERSEY, NEW

JERSEY SPORTS & EXPOSITION

AUTHORITY, MONMOUTH PARK

RACETRACK,

Defendant-Appellant.

_____________________________________

 

Argued October 4, 2006 - Decided October 26, 2006

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4998-05.

Paul J. Soderman argued the cause for appellant (Zucker, Facher & Zucker, attorneys; Mr. Soderman, on the brief).

Janice A. Vasquez argued the cause for respondents (Kessler, DiGiovanni & Jesuele, attorneys; Vincent Jesuele, on the brief).

PER CURIAM

Defendant appeals, by leave of court, from an order granting plaintiff leave to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:1-1 to -12.3, and the Contractual Liability Act, N.J.S.A. 59:13-1 to -10.

Plaintiff's application for leave to file a late notice of claim was supported by plaintiff's affidavit, which alleged that he was injured when he tripped and fell at Monmouth Park Racetrack on July 31, 2005. The affidavit further alleged that plaintiff reported his fall to the staff at the racetrack, who took his name and prepared a written report regarding the incident and also attended to him before he was transported to the hospital. The affidavit stated that plaintiff suffered a double fracture of his pelvis as a result of the fall and was bedridden for four weeks during which he only left his house for medical appointments. Following this four-week period, plaintiff was in a wheelchair for two weeks and had to use a walker to get around for an additional period of time. Plaintiff's affidavit also alleged that the injuries he suffered in the fall aggravated a prior hip replacement and that "[t]he combination of these injuries caused me substantial pain and limited me to doing only the bare necessities of attending to medical appointments to address the injuries."

Plaintiff did not retain his attorney until November 17, 2005, which was more than ninety days after the accident. Plaintiff claims that before that date, the injuries he suffered in this accident prevented him from attending to any matters other than medical appointments. Plaintiff's attorney filed a notice of claim the same day he was retained.

Based on this submission, the trial court granted plaintiff's motion for leave to file a late notice of claim, concluding that plaintiff had demonstrated the "extraordinary circumstances" required under the Tort Claims Act for such relief. The court also indicated that even if plaintiff's Tort Claims Act claim was barred because he could not demonstrate extraordinary circumstances, he could still pursue his claim under the Contractual Liability Act, which only requires a plaintiff to show "sufficient reason" for the filing of a late notice of claim, N.J.S.A. 59:13-6.

The Tort Claims Act requires a claimant to file a notice of a tort claim against a public entity within ninety days of accrual of the claim:

A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented . . . not later than the ninetieth day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity . . . if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9.

[N.J.S.A. 59:8-8.]

N.J.S.A. 59:8-9 provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter;

The current version of N.J.S.A. 59:8-9, which requires an injured party to demonstrate "extraordinary circumstances" to file a late notice of claim, was adopted by a 1994 amendment. See Lowe v. Zarghami, 158 N.J. 606, 625 (1999). The purpose of this amendment was "to raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe, supra, 158 N.J. at 625).

However, "the new version [of N.J.S.A. 59:8-9] 'does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.'" Lowe, supra, (quoting Ohlweiler v. Township of Chatham, 290 N.J. Super. 399, 404 (App. Div. 1996)). This determination is committed to the trial court's discretion. Generally an appellate court examines "more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Id. at 629 (quoting Feinberg v. State Dept. of Envtl. Prot., 137 N.J. 126, 134 (1994)).

In Maher v. County of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006), we recognized that severe personal injuries that prevent a plaintiff from conferring with counsel and attending to his or her legal affairs may establish the extraordinary circumstances required to justify the filing of a late notice of claim under the Tort Claims Act. In Maher, the plaintiff's cause of action for a staph infection accrued in November 2003, when a doctor told her daughter that the infection may have resulted from a burn at the county facility where she worked. Id. at 188. However, plaintiff did not file a notice of claim until nine months later, in August 2004. Id. at 189. During the ninety-day period following accrual of the cause of action, plaintiff was hospitalized twice for further treatment from December 13, 2003 until January 1, 2004, and from January 30, 2004 until February 6, 2004. Id. at 184. Plaintiff was again hospitalized in April 2004. Ibid. Plaintiff alleged, without contradiction, that "she suffer[ed] from severe memory deficits, ha[d] little recollection of her hospitalizations and continue[d] to experience significant effects from her illness[.]" Ibid. The trial court denied plaintiff's motion for leave to file a late notice of claim. We reversed, concluding

that the circumstances that led to the delay in filing the notice and the motion were truly extraordinary. Plaintiff's condition was so severe that during her first hospitalization she was in an induced coma. According to her daughter, she was not even expected to survive. After that time, she continued to be in extremely poor health and she was repeatedly re-admitted to the hospital for further treatment.

[Id. at 189-90.]

Although the injuries involved in Maher appear to have been even more serious than plaintiff's injuries, plaintiff unquestionably suffered serious incapacitating injuries as a result of his fall at the racetrack. Those injuries consisted of a double fracture of his pelvis and the aggravation of a prior hip replacement. Due to those injuries, plaintiff was bedridden for four weeks and thereafter required a wheelchair and then a walker to get around. According to plaintiff, "[t]he combination of these injuries caused [him] substantial pain and limited [him] to doing only the bare necessities of attending to medical appointments to address the injuries[,]" and "[i]t was not until well after 90 days from the injury that [he] was able to attend to other needs such as consulting an attorney to discuss [his] injuries." Defendant does not dispute these allegations. Moreover, plaintiff filed a notice of claim on November 17, 2005, only nineteen days after expiration of the ninety-day statutory period for filing such a notice. Given the severity of plaintiff's injuries and the short period of time that elapsed between expiration of the ninety-day period for filing a notice of claim and plaintiff's notice, we are unable to conclude that the trial court abused its discretion in finding that plaintiff established the extraordinary circumstances required for an extension of the time for filing a notice of tort claim. Moreover, defendant does not claim that it was "substantially prejudiced" by the filing of the notice beyond the ninety-day period provided by N.J.S.A. 59:8-8.

However, the trial court erred in concluding that plaintiff could pursue his claim under the Contractual Liability Act. This Act does not apply to any state agency "which is statutorily authorized to sue and be sued." N.J.S.A. 59:13-2; see Fine v. Rutgers, 163 N.J. 464, 470 (2000). Defendant New Jersey Sports and Exposition Authority, which owns and operates Monmouth Park Racetrack, is statutorily authorized to sue and be sued, N.J.S.A. 5:10-5(a). Therefore, a claim under the Contractual Liability Act cannot be maintained against the Authority.

Furthermore, both the Contractual Liability and Tort Claims Acts expressly bar claims based on "implied warranties," N.J.S.A. 59:13-3; N.J.S.A. 59:9-2(b), which is the sole theory of contractual liability advanced by plaintiff. Therefore, even if the Authority was not exempt from suit under the Contractual Liability Act, plaintiff would be precluded from pursuing its contract claim.

 
Accordingly, the part of the order on appeal granting plaintiff leave to file a notice of late claim under the Tort Claims Act is affirmed. The part of the order that allows plaintiff to file a notice of late claim under the Contractual Liability Act is reversed.

We note that the Maher opinion contains only limited information regarding the plaintiff's medical condition during the six-month period between the end of her second hospitalization in February 2004 and the filing of the notice of claim in August 2004.

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A-3571-05T2

October 26, 2006