MONIQUE CARROWAY v. COUNTY OF CAMDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6148-07T16148-07T1

MONIQUE CARROWAY, ADMINISTRATOR

AD LITEM OF THE ESTATE OF THE

LATE TYRONE CARROWAY,

Plaintiff-Appellant,

v.

COUNTY OF CAMDEN, CAMDEN COUNTY

CORRECTIONAL FACILITY,

Defendant-Respondent.

_______________________________________________________

 

Submitted September 22, 2009 - Decided

Before Judges Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3015-08.

Glen L. Schemanski, attorney for appellant.

Michael G. Brennan, County Counsel, attorney for respondent (Howard L. Goldberg, Assistant County Counsel, of counsel and on the brief).

PER CURIAM

Plaintiff Monique Carroway, administratrix ad litem for the estate of her late son, Tyrone Carroway, appeals from the denial of her motion to file a late notice of claim under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to :12-3. We have considered the arguments made in light of the record and applicable legal standards. We affirm.

The salient factual and procedural histories are undisputed. On or about March 23, 2007, Tyrone Carroway was arrested and committed to defendant Camden County Correctional Facility operated by defendant County of Camden. Although nineteen-years-old and alleged to be in fine health when admitted to the jail, he took ill and died at the facility on June 9, 2007. Preliminary autopsy results were inconclusive as to the cause of his death. On July 20, after toxicological test results were reviewed, an amended death certificate was entered indicating that the cause of death could not be determined.

In April 2008, plaintiff retained her present attorney. Since the motion record contains no certifications by plaintiff herself, it is unclear whether she consulted any other attorney prior to April, and if not, why she failed to do so. In any event, on or about June 6, 2008, plaintiff moved for permission to file a late notice of tort claim.

In support of the motion, counsel supplied a certification noting his retention in April, and asserting that "[t]he claims of the late Tyrone Carroway are hampered by the fact that a cause of death . . . has never been determined." Counsel asserted that timely notice had not been served "due to the uncertainty of the cause or causes of death of . . . Tyrone Carroway, and whether the mentioned [d]efendants were responsible for [his] death[.]" (Emphasis added).

Defendants opposed the motion. They argued that to the extent plaintiff actually had a claim, it accrued upon the death of her son. They further contended that plaintiff had failed to demonstrate any "extraordinary circumstances" excusing the late filing of her notice of claim.

In a brief oral decision entered on the record, the motion judge agreed that plaintiff had failed to demonstrate extraordinary circumstances and denied her motion. This appeal ensued.

The TCA requires that

A claim relating to a cause of action for death . . . 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.]

After expiration of the ninety-day period, a plaintiff may seek leave of court to file a late notice of claim, but must do so within one year of the accrual of the claim. N.J.S.A. 59:8-9. Such a request may be granted only if a plaintiff demonstrates "sufficient reasons constituting extraordinary circumstances for his failure to file [a timely] notice of claim . . . or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter[.]" Ibid.

In considering a motion for leave to file a late notice of claim, "a sequential analysis must be undertaken." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000).

The first task is always to determine when the claim accrued. The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual. Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice.

[Id. at 118-19.]

We recently noted that "the decision to grant a plaintiff permission to file late notice of a tort claim is a matter left to the sound discretion of the trial court, [though] this discretion is limited to cases in which the claimant's affidavit shows sufficient reasons constituting extraordinary circumstances for the delay and there is no substantial[] prejudice[] to the public entity or employee." Leidy v. County of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008) (quotations omitted).

"Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp, supra, 164 N.J. at 116. "Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Id. at 117. The discovery rule provides an equitable exception to this general rule "where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible." Ibid. The discovery rule is applicable to TCA claims. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 145 (1988). However, to invoke its equitable benefits, a plaintiff must "exercise . . . reasonable diligence and intelligence . . . [to] discover[] that [s]he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973).

Even at this late date, plaintiff concedes that she "does not know who, if anyone, is responsible for the death of her late son." We assume this is essentially an invocation of the discovery rule, although plaintiff does not expressly make the argument. In any event, the motion record is entirely devoid of any actions by plaintiff that demonstrate "reasonable diligence" in determining whether defendants are legally responsible for her son's death. For example, although an official incident report is part of the motion record, there is no indication that plaintiff investigated the circumstances of her son's death by contacting and interviewing potential witnesses. Moreover, there is no indication that plaintiff retained any forensic experts to review the autopsy and toxicological findings.

As a result, we must conclude that any potential cause of action accrued upon plaintiff's receipt of the amended death certificate, with perhaps some reasonable extension of time thereafter during which plaintiff could have independently employed an expert to conduct a forensic review. Giving plaintiff the benefit of this additional time would extend the accrual date to perhaps September 2007.

Since no notice of claim was filed within ninety days thereafter, the inquiry becomes whether plaintiff has demonstrated "extraordinary circumstances" for the delay. The TCA does not define the term, instead leaving "for a case-by-case determination . . . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citing Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997)). The judge may consider a "combination of factors" in determining whether plaintiff has demonstrated "extraordinary circumstances." Lowe, supra, 158 N.J. at 629. We have noted that even if the reasons suggested for a plaintiff's delay "when offered individually, were inadequate, a judge must consider the collective impact of the circumstances offered . . . ." R.L. v. State-Operated School Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).

Here, plaintiff has offered no excuse, other than the inability to determine her son's cause of death, for the delay. We do not view this as meeting the statutory requirement because, as we have already noted, the exercise of reasonable diligence may have determined both the cause of death and, more importantly for our purposes, whether a legal basis existed for a claim against defendants. The inability to ascertain Tyrone Carroway's cause of death, in light of this lack of reasonable diligence, cannot therefore be a sufficient extraordinary circumstance under N.J.S.A. 59:8-9.

Affirmed.

 

Although some of the facts plaintiff alleged in her moving papers and in her brief before us are not certified, provided under oath, or otherwise contained in documents she has submitted, defendants have not disputed the assertions.

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A-6148-07T1

October 6, 2009