TIFFANI MABRY v. WEST WINDSOR TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4625-08T34625-08T3

TIFFANI MABRY,

Plaintiff-Respondent,

v.

WEST WINDSOR TOWNSHIP,

Defendant-Appellant,

and

TWIN W FIRST AID SQUAD, INC.,

TWIN W. INC,

Defendants.

_________________________________

 
Telephonically argued December 16, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-573-09.

Gregory J. Sullivan argued the cause for appellant (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Sullivan, of counsel and on the brief.

David P. Schroth argued the cause for respondent.

PER CURIAM

Defendant West Windsor Township (Township) appeals from the May 1, 2009 order that granted plaintiff Tiffani Mabry leave to file a late notice of claim, pursuant to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. We reverse.

The core facts are not in dispute. On October 13, 2008, plaintiff suffered injuries in an automobile accident in West Windsor Township when the vehicle she was operating collided with an ambulance owned by the Township. Approximately two weeks post-accident, plaintiff attempted to schedule an appointment with her attorney. Because the attorney was engaged in a two-month trial in the United States District Court, plaintiff was unable to then meet with him. Following completion of the trial, plaintiff met with her attorney during the week between December 25, 2008 and January 1, 2009, at which time plaintiff informed the attorney of the facts relating to the accident.

Based on his experience as a local practitioner, the attorney believed that the ambulance was owned and operated by defendant Twin W First Aid Squad, Inc. (Twin "W"), an entity known to the attorney as a provider of emergency medical services within the Township. On an unspecified date more than ninety days post-accident, plaintiff's attorney obtained a copy of the police report regarding the accident. The report indicates that the ambulance was owned and self-insured by the Township.

On March 6, 2009, not having filed a notice of tort claim with the Township within ninety days of the accident pursuant to N.J.S.A. 59:8-8, plaintiff filed a motion seeking leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The motion was supported by plaintiff's affidavit and by certification of her attorney, which provided the following additional facts.

After obtaining a copy of the police report, plaintiff's attorney viewed the Township's Internet website. The website provided in part that the Township's "Emergency Medical Services Division consists of the Twin W First Aid Squad, Inc." According to the attorney, further investigation revealed that:

. . . [W]est Windsor Township apparently utilizes [Twin "W",] to provide emergency ambulance services after the hours of 5 p.m. through 9 a.m. at which time an ambulance either owned or controlled by West Windsor or alternatively an ambulance owned or controlled by Twin "W" but staffed by West Windsor Township employees operates this service only between the hours of 9 a.m. and 5 p.m., at which time Twin "W" resumes providing these services.

On the return date of the motion, plaintiff's attorney argued that there were extraordinary circumstances justifying the grant of the motion. The attorney argued that because the Township listed Twin "W" as the provider of medical emergency services in the Township on its website, neither plaintiff nor he was aware that the ambulance involved in the accident was owned by the Township, rather than Twin "W" until receipt of the police report. In granting the motion, the court stated:

I am going to find that there are rather unusual circumstances here that constitute the statutory criteria of extraordinary circumstances based upon the website, what one may be led to believe. And you don't have to have a complex medical negligence case, for instance, or a complex case in order to have real issues with regard to identification of parties, it seems to me. I've gone through tortured paths many times to figure out who it was and why, and sometimes you're really misled. And I think that this is one of those situations that counsel might rest comfortably in believing he was okay and lo and behold other information comes and one doesn't necessarily have to have the police report in the first three months, by the way either, but something comes up and there you are, there is a major issue that was not expected at all. It was rather extraordinary, and I am going to make that finding in this case.

On appeal, the Township argues "plaintiff cannot demonstrate 'extraordinary circumstances' to warrant leave to file a notice of tort claim out of time, and therefore the lower court abused its discretion in granting leave." Plaintiff counters that the trial court did not abuse its discretion in granting her motion. We disagree with plaintiff's position and reverse.

"Discretion . . . means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)). "Obviously, '[i]f the trial judge misconceives the applicable law or misapplies it . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act.'" Id. at 563 (quoting Steele, supra, 92 N.J. Super. at 507).

The Act prohibits a plaintiff from filing a claim for personal injuries against a public entity "unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. The Act also requires that a notice of tort claim be filed against a public entity within ninety days after accrual. N.J.S.A. 59:8-8(a). If a claimant fails to file a notice of claim within ninety days of accrual, he or she may file a motion for leave to file a late notice of claim within one year of accrual on a showing of "sufficient reasons constituting extraordinary circumstances" for not filing the notice of claim within the first ninety days of accrual. N.J.S.A. 59:8-9. That statute provides in pertinent part:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this [A]ct, 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 [A]ct or to file a motion seeking leave to file a late notice of claim within the reasonable time thereafter . . . .

[Ibid.]

We conclude that the trial court erred in granting plaintiff's motion for leave to file a late notice of claim. Although it is undisputed that the Township has not been substantially prejudiced by the late notice, it is equally clear that plaintiff failed to present "sufficient reasons constituting extraordinary circumstances" for failing to timely file her notice of claim. See Blank v. City of Elizabeth, 162 N.J. 150 (1999).

In Blank, the plaintiff fell when she tripped over a metal pipe that protruded from a public sidewalk. On ascertaining that the pipe was owned by the City of Elizabeth, plaintiff filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The trial court granted the motion. Id. at 151. We reversed. Ibid. In affirming in part and modifying in part, the Court determined that the pipe was actually a shut-off valve that "on visual inspection, readily would have been identified as an appurtenance of a water supply system." Id. at 152. Accordingly, the Court concluded that "an inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants that were responsible for installation and maintenance of the shut-off valve." Id. at 152-53. Here, as in Blank, plaintiff had an obligation to investigate within a reasonable time after the accident the identity of the owner and operator of the ambulance. Plaintiff's timely view of the police report would have disclosed that the ambulance was owned by the Township.

Plaintiff argues that we should affirm the trial court's decision in granting her motion, citing Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74 (2000). Not so. Ventola addressed issues that gave rise to plaintiff's confusion as to whether a public healthcare facility was owned, operated and maintained by the U.S. Department of Veterans Affairs (USVA) or by the State of New Jersey. Id. at 78. Ventola, a sixty-seven-year old veteran of the United States armed forces was hospitalized at the New Jersey Veteran's Memorial Home. Ibid. However, the plaintiff thought that the hospital was under the jurisdiction of the USVA. The plaintiff sued alleging malpractice and gave notice to the USVA. Ibid. The USVA notified the plaintiff that the hospital was operated by the State of New Jersey. Ibid. The plaintiff filed a motion for leave to file a late notice of tort claim. The trial court denied the motion, determining that the plaintiff had mistakenly believed that the institution was operated by the USVA. Id. at 79. We affirmed. Id. at 80.

The Court reversed, determining that the plaintiff's "understandable confusion concerning the status of the veterans' home operated by the State Department of Military and Veterans Affairs should not bar the presentation of their claim." Id. at 82. In so holding, the Court concluded that "[t]he notice provisions of the Tort Claims Act are well-suited to a fall on the steps of a courthouse or on an obstruction of a public sidewalk," id. at 81 (citing Blank, supra, 162 N.J. 150), not to more complex factual situations, such as "medical malpractice or toxic tort causation." Id. at 82.

Here, the incident complained of does not arise out of a complex factual pattern. Rather, it arises from a conventional motor vehicle accident. Any confusion as to the ownership of the ambulance would have been quickly resolved by plaintiff timely acquiring and reviewing the standard police report. The trial court's reliance on the Township contributing to the confusion concerning the ownership of the ambulance by the posting on its website is mistaken. At oral argument, plaintiff's counsel acknowledged that the information on the Township's website was unknown either to him or to plaintiff until after the time for filing a notice of claim, pursuant to N.J.S.A. 59:8-8 had expired. Accordingly, neither plaintiff nor her attorney could have detrimentally relied on the information posted by the Township on its website.

Reversed.

The order is deemed a final judgment for appeal purposes.

(continued)

(continued)

2

A-4625-08T3

January 12, 2010