THE ESTATE OF DOUGLAS VAN VALEN v. BOROUGH OF ORADELL, DEPARTMENT OF PUBLIC WORKS OF ORADELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5943-07T35943-07T3

THE ESTATE OF DOUGLAS VAN VALEN by

Administrator Ad Prosequendum

KENNETH D. VAN VALEN,

Plaintiff-Appellant,

v.

BOROUGH OF ORADELL, DEPARTMENT OF

PUBLIC WORKS OF ORADELL and

ROBERT C. DUTZAR,

Defendants-Respondents,

____________________________

 

Submitted March 9, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-3167-08.

Liebowitz, Liebowitz & Stern, attorneys for appellant (Dwight D. de Stefan, on the brief).

Rivkin Radler, L.L.P., attorneys for respondents (John Robertelli, of counsel and on the brief; Anita Cohen, on the brief).

PER CURIAM

Plaintiff, the Estate of Douglas Van Valen, appeals from an order dated May 23, 2008 dismissing plaintiff's complaint on summary judgment, and from an order dated June 20, 2008 denying reconsideration. We affirm.

I

Decedent Douglas Van Valen, an employee of the Oradell Department of Public Works (DPW), died as the result of a workplace accident on October 2, 2007. Decedent and a fellow DPW employee were repairing a road, using hand tools and a Beuthling B200T asphalt roller. The co-worker lost control of the asphalt roller, which knocked decedent down and crushed him against a parked car.

The Estate failed to file a notice of tort claim within ninety days after the accident, as required by the Tort Claims Act (TCA), N.J.S.A. 59:8-8a. Instead, on April 24, 2008, the Estate filed a motion returnable on May 9, 2008, for leave to file a notice of late claim pursuant to N.J.S.A. 59:8-9, which requires a showing of "extraordinary circumstances" justifying the late filing. Ibid. The application was supported by a certification from the estate administrator, defendant's father, who attested that the family had been "devastated" by his son's death and also had been under the impression that "only defendants could act on our behalf because the death of my son happened on the job." He also contended that he had only recently learned that there might have been deficiencies in the maintenance of the asphalt roller or in the training of the co-employee in using the machine. Plaintiff did not file a brief in support of the motion.

The motion was adjourned to May 23, 2008, and on May 15, defendants filed a substantial brief in opposition to the application, contending that the Estate had not established extraordinary circumstances for the late filing under the TCA. In the alternative, defendants contended that that the claims against Oradell and decedent's co-worker were barred by the exclusive remedy provision of the Worker's Compensation Act, N.J.S.A. 34:15-8, and that the estate had not asserted facts sufficient to establish an "intentional wrong" so as to avoid the bar of section 8. Ibid. Defendants also submitted a certification establishing that the Estate had received approximately $50,000 in worker's compensation benefits covering medical and funeral expenses, in connection with decedent's injury and death.

By letter dated May 21, 2008, plaintiff's counsel asked Judge Elijah L. Miller, Jr., the presiding civil judge, to adjourn the motion to one of several dates in June. The reason for the request was that "[t]he attorney in our office who is handling this matter just returned from surgery to find a very large and detailed brief from defendant that requires a reply." Judge Miller denied the adjournment, noting at the May 23 oral argument that a brief should have been filed with the motion: "It is not a situation where you file a notice of motion and then you prepare and do the paperwork thereafter."

In a lengthy and cogent written opinion issued on May 23, 2008, addressing the merits of the motion, Judge Miller concluded that plaintiff had not shown extraordinary circumstances for the delay in filing the notice of tort claim. He also noted, without deciding the issue, that the claim was in all likelihood barred by the Workers' Compensation Act.

On June 2, 2008, plaintiff filed a reconsideration motion, limited to claims based on "intentional torts only." The motion was supported by a brief and a certification from plaintiff's counsel. According to the certification, plaintiff retained the firm on or about April 23, 2008, and counsel immediately wrote to the state and federal Occupational Safety and Health Administration (OSHA) offices seeking reports about the asphalt roller. Counsel certified that on May 23, 2008, OSHA sent him an eighty-four page report concerning what counsel described as "OSHA violations . . . [which had] existed for a long time and were to be abated by March, 2008."

Plaintiff's brief asserted that following the accident, OSHA violations were issued concerning "the lack of training and operation on the type of equipment which caused [decedent's] death." Plaintiff's brief argued that

[s]ending a novice out to run an antiquated piece of heavy equipment that had no braking power, without directions as to clearing the area of nonfixed large objects such as a parked car was tantamount to an invitation to the death that occurred. It is certainly no different from the removal of "guards" from a machine.

However, counsel did not provide the court with the OSHA report or any OSHA violation notices to substantiate the dramatic representations made in the brief. Nor did the motion provide any legally competent evidence further documenting the reasons why the Estate delayed in pursuing the tort claim until April 24, 2008. In response to defendants' opposition, which noted the failure to document the OSHA violations, plaintiff finally provided the court with two OSHA violation notices, but not the alleged eighty-four page report. The notices did not support plaintiff's contentions and only cited the town for failure to have written training guidelines available at the workplace or proof on the day of inspection that the employees were trained to use the machinery.

In a written opinion dated June 20, 2008, denying the reconsideration motion, Judge Miller reasoned that plaintiff was required to comply with the TCA even on a claim of an intentional tort. See Velez v. City of Jersey City, 180 N.J. 284, 292-93 (2004). He also concluded that "plaintiffs' failure to retain counsel prior to April 23, 2008 . . . does not constitute extraordinary circumstances."

II

On this appeal, plaintiff raises the following points for our consideration:

POINT I. THE ACTIVE OBFUSCATION BY DEFENDANTS OF THEIR CONTINUING VIOLATION OF OSHA REGULATIONS PLUS THEIR FAILURE TO NOTIFY PLAINTIFFS OF EITHER THE CHARGES OR THE ABATEMENT TOLLED THE TIME ON WHICH PLAINTIFFS' ACTION ACCRUED AND THUS PLAINTIFFS' FILING WAS TIMELY.

POINT II. THE COURT ERRED IN FAILING TO RECOGNIZE THE SHOCKING, EGREGIOUSNESS OF DEFENDANTS' FLAGRANT NONFEASANCE AS AN INTENTIONAL WRONG EXCEPTION TO N.J.S.A. 34:15-8.

POINT III. THE TRIAL COURT ERRED BY NOT PERMITTING AN ADJOURNMENT OF THE PLAINTIFFS' ORIGINAL MOTION AND BY NOT PERMITTING ORAL ARGUMENT IN THE INITIAL MOTION OR THE MOTION FOR RECONSIDERATION WHICH RESULTED IN DISMISSAL OF PLAINTIFFS INTENTIONAL TORT CLAIMS.

In Point III, plaintiff alleges the trial court erred in denying it the opportunity to file a reply brief to respond to defendants' opposition to its initial motion, and erred in deciding the reconsideration motion without oral argument. In Points I and II, the Estate raises a series of arguments it admittedly did not raise in the trial court. It argues for the first time that the town concealed information about the OSHA violations, and it contends that the town's egregious actions justified extending the time to file a tort claim notice. In connection with those arguments, plaintiff improperly relies upon alleged facts which are not of record, and on citations to the record which simply do not support its factual assertions.

We will not address plaintiff's arguments raised for the first time on appeal. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). Moreover, except as discussed below, we conclude that plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Substantially for the reasons stated in Judge Miller's two written opinions, we conclude that plaintiff did not establish extraordinary reasons for filing a late notice of tort claim. As Judge Miller correctly reasoned, the Legislature has set a very high standard for filing a late notice under the TCA. See Beauchamp v. Amedio, 164 N.J. 111, 118 (2000); Leidy v. Ocean County, 398 N.J. Super. 449, 456 (App. Div. 2008). Neither ignorance of the law, nor emotional distress that does not cause incapacitation, will serve to vault that bar. See O'Neill v. City of Newark, 304 N.J. Super. 543, 552-54 (App. Div. 1997); cf. R.L. v State-Operated Sch. Dist., 387 N.J. Super. 331, 340-41 (App. Div. 2006).

Plaintiffs were understandably devastated by their son's death. However, they provided no specifics as to how or why that prevented them from consulting with an attorney or otherwise pursuing a tort claim, until six months after the accident. See O'Neill, supra, 304 N.J. Super. at 553. There is no legally competent evidence in this record that the town did anything to conceal OSHA violations from decedent's family or otherwise lulled them into delaying in asserting their tort claim. We find no abuse of discretion or other error in Judge Miller's decision to deny the motion for leave to file a late notice. See Leidy, supra, 398 N.J. Super. at 456.

We also find no abuse of discretion in Judge Miller's declining to adjourn the motion to allow plaintiff to file a brief, because plaintiff should have filed a brief supporting the motion in the first place. Further, he considered the brief they filed in support of the reconsideration motion. We likewise find no abuse of discretion in the judge deciding the reconsideration motion on June 20, 2008 without oral argument. Plaintiff's counsel sent the court a letter on June 19, 2008, seeking an adjournment of the next day's hearing because his office had "no counsel available for appearance tomorrow due to graduation ceremonies and long term out of office commitment by others." The court was under no obligation to grant such a last-minute request. See Vargas v. Camilo, 354 N.J. Super. 422, 430-31 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). We also conclude that the reconsideration motion was without merit and was properly denied, because it provided no further legally competent evidence to establish extraordinary circumstances.

Finally, we note that in denying the motion, Judge Miller properly considered the probable lack of merit of the underlying tort claim. See Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super. 265, 269-70 (Law Div. 1994). We agree with defendants that plaintiff's claim was barred by the Workers' Compensation Act, N.J.S.A. 34:15-8, and would have been subject to eventual dismissal on the merits even if Judge Miller had granted the motion to file a late claim. The record does not support an intentional wrong exception under N.J.S.A. 34:15-8, and plaintiff's reliance on Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397 (2003), and similar cases is misplaced.

Affirmed.

 

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A-5943-07T3

March 20, 2009