JUDY DANIELS v. PEMBERTON TOWNSHIP WATER DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4440-11T4

JUDY DANIELS,

Plaintiff-Appellant,

v.

PEMBERTON TOWNSHIP WATER

DEPARTMENT,

Defendant-Respondent.

_______________________________

April 3, 2013

Argued March 20, 2013 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket

No. L-1913-11.

Mark J. Molz argued the cause for appellant.

David A. Clark argued the cause for respondent (Gluck Walrath, LLP, attorneys; Mr. Clark, of counsel and on the brief; Jaclyn Baker, on the brief).

PER CURIAM

Plaintiff Judy Daniels appeals from the entry of summary judgment dismissing her complaint and the denial of her cross-motion to deem her notice of tort claim as if timely filed. Because we agree that defendant Pemberton Township Water Department1 (Township) was entitled to judgment as a matter of law, we affirm.

The facts can be briefly summarized. On June 3, 2010, plaintiff was walking in her front yard when she stepped on the cover of a Township-owned water meter. The cover became dislodged, and plaintiff was injured when her foot and leg slipped into the hole normally guarded by the cover. A Township police officer responding to the scene notified the Township's Water Department, which secured the cover the same day. The officer filed a report of the incident.

Plaintiff's counsel filed a notice of claim on her behalf with the Township on September 21, 2010, more than ninety days after her cause of action accrued. The Township responded by letter of September 28, 2010, advising that the Township had adopted its own tort claim form and of its position that a claim cannot be considered properly filed until filed on the Township's form. Plaintiff resubmitted the claim on the Township's form on October 22, 2010. On December 21, 2010, the Township's third-party claims administrator denied the claim, in part, on the basis that it was filed beyond the ninety-day time bar provided by N.J.S.A. 59:8-8.

Plaintiff did not file a motion for leave to file a notice of late claim pursuant to N.J.S.A. 59:8-9 within the year following her fall. Instead, on June 9, 2011, just over a year after her accident, she filed a complaint against the Township seeking damages. The Township answered, alleging that the claim was barred for failure to comply with the notice requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. After discovery, the Township moved for summary judgment on the basis of the time bar. Defendant opposed the motion and cross-moved to deem her notice of tort claim as if timely filed.

Plaintiff contended that she was unaware that she had a claim against the Township at the time of her fall or that the water department was a part of the Township. She claimed that she did not become aware of the extent of her injuries until after the notice period had passed, and that her lack of knowledge should excuse the late filing, relying on Ohlweiler v. Township of Chatham, 290 N.J. Super. 399, 405-06 (App. Div. 1996), holding that unawareness of the extent of an injury can constitute extraordinary circumstances justifying the grant of a motion to file a late notice of claim. Further, she claimed that the Township was not prejudiced by any alleged late notice, as it was aware of the claim on the basis of the police report.

In a thorough and well-reasoned opinion, Judge Crook granted the Township's motion for summary judgment and denied plaintiff's cross-motion. The court found on the basis of the undisputed facts that plaintiff had filed her notice of tort claim beyond the ninety days allowed by N.J.S.A. 59:8-8. Accepting for purposes of the motion that plaintiff did not become aware of the extent of her injuries until after the ninety days had elapsed, the judge nevertheless rejected plaintiff's contention that such unawareness could excuse her late filing. The judge determined that the Court in Beauchamp v. Amedio, 164 N.J. 111, 119-21 (2000) (holding that the extent of an injury relates only to the amount of damages recoverable and not the accrual of a cause of action), had expressly disavowed our opinion in Ohlweiler, thus making clear that plaintiff's claim accrued on the day she fell, notwithstanding her unawareness of the extent of her injuries. Judge Crook rejected plaintiff's argument that the police report of the accident qualified as substantial compliance with the notice requirement because it lacked support in the case law. Finally, he found that any lack of prejudice to the Township was immaterial as that inquiry is only relevant to a late claim motion filed within one year of the accrual of the cause of action. N.J.S.A. 59:8-9.

Plaintiff renews these arguments on appeal. We affirm, substantially for the reasons expressed in Judge Crook's March 30, 2012 written opinion. We add only that two recent cases from our Supreme Court underscore the correctness of the conclusions reached by Judge Crook.

In McDade v. Siazon, 208 N.J. 463 (2011), the plaintiff was walking his dog when he tripped over a sewer pipe protruding from the sidewalk. Although the accident took place on a public sidewalk owned by Egg Harbor Township, the pipe was owned by the local municipal utility authority, a legal entity distinct from the Township. Plaintiff served a timely notice of claim on the Township but failed to undertake any investigation into the pipe's true owner. He learned of the authority's ownership only many months later when advised by the Township's claims administrator. Instead of filing a motion for leave to file a late claim notice, and subjecting himself to an inquiry into whether his delay was justified by extraordinary circumstances under N.J.S.A. 59:8-9, the plaintiff filed an untimely "amended notice" with the authority. In his subsequent suit against the authority, the plaintiff urged application of the discovery rule to delay accrual of his cause of action until he learned the true owner of the pipe. Although acknowledging that the discovery rule can apply in a tort claims context, the Court denied application of the rule on the facts, and more to our point, admonished the plaintiff for attempting to use the discovery rule to evade the legislatively dictated late claims procedure of N.J.S.A. 59:8-9.

McDade has obvious application here. The Township rejected plaintiff's claim as untimely in December 2010, well within the one-year period for filing a motion for leave to file a late claim. N.J.S.A. 59:8-9. Plaintiff did not seek leave of court to file a notice of late claim, likely because she could not meet the requirement to show extraordinary circumstances for her delay. Judge Crook was correct to reject plaintiff's application of the discovery rule under Beauchamp, as plaintiff's cause of action clearly accrued on the date of the accident. Beauchamp, supra, 164 N.J. at 119. McDade extends the holding in Beauchamp to reach the situation presented here, that of a plaintiff attempting to avoid the obligation to file a late claim motion, and the legislatively mandated framework for evaluating it, by resort to the discovery rule.

Recently, in another case having application to this matter, the Court held that an attorney's neglect in filing a timely notice of claim, coupled with the plaintiff's non-debilitating medical symptoms following the unauthorized release of her personal medical information by the University of Medicine and Dentistry and Rutgers, did not constitute extraordinary circumstances under N.J.S.A. 59:8-9. D.D. v. Univ. of Med. and Dentistry of N.J., ___ N.J. ___, ___ (2013) (slip op. at 51). The Court also rejected the plaintiff's argument that her oral advice to senior university officials about their unauthorized release of her personal information and its effect on her constituted substantial compliance with the notice requirement. Although acknowledging that the doctrine of substantial compliance "has occasionally been applied in the tort claims context," the Court noted that "it has been limited carefully to those situations in which the notice, although both timely and in writing, had technical deficiencies that did not deprive the public entity of the effective notice contemplated by the statute." Id. at 55. After reviewing the essential requirements of a valid notice under N.J.S.A. 59:8-4, the Court declined to extend the doctrine "so as to relieve plaintiffs of their obligation to comply with the statute's requirement that they file a notice, and that it be in writing." Id. at 56.

We view the Court's decision in D.D. that persons asserting claims against public entities must file a notice of tort claim, which must be in writing, as affirming the correctness of Judge Crook's decision here. Plaintiff must file a notice of tort claim. A police report of the incident giving rise to the claim does not constitute notice to the Township under N.J.S.A.

59:8-4.

Affirmed.

1 The Pemberton Township Water Department is not a legal entity separate from Pemberton Township, but merely a department of the Township.