BARBARA DAILY v. NEW JERSEY DEPARTMENT OF TRANSPORTATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BARBARA DAILY,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

TRANSPORTATION,

Defendant-Respondent.

__________________________________________

March 6, 2014

Submitted February 4, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1399-12.

Swartz Culleton, P.C., attorneys for appellant (Christopher J. Culleton and Bryan M. Ferris, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brian Hunkins, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Barbara Daily appeals from the Law Division's order of October 18, 2012, that denied her motion for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA), against defendant, the New Jersey Department of Transportation (DOT). The motion record is largely undisputed.

On July 7, 2011, plaintiff tripped and fell over a partially-buried fragment of metal along the side of Route 130 in Gloucester City (the City). The fragment was located near premises owned by Corls Wash Works, Inc., trading as Patriot Car Wash (Patriot). On August 15, plaintiff's attorney served a notice of claim on the City. That engendered a response on August 19 from Scibal Associates (Scibal), the City's third-party claims administrator, attaching claims forms for completion, and further advising that Route 130 was not owned by the City. Plaintiff completed the forms and returned them to Scibal, the receipt of which was acknowledged in writing on November 8.

In the interim, on September 6, plaintiff's counsel served a notice of claim upon Patriot. On January 11, 2012, Patriot's insurer, Selective Insurance Company of America (Selective), responded in writing. Denying responsibility for plaintiff's accident, Selective indicated that "the sign" upon which plaintiff tripped "was damaged by a driver who lost control, and [it] ha[d] been replaced." The letter provided that the area "is controlled and maintained by the [DOT]," and further noted that DOT's representative advised Selective that "the State owns the [ten] foot area from the curb inward."

On January 18, 2012, plaintiff's counsel served DOT with a notice of claim under the TCA and, on March 23, he moved to file a late notice of claim. On April 6, the judge entered an order granting plaintiff's motion as unopposed. However, on July 23, DOT filed a motion seeking to vacate the order, claiming that plaintiff's notice had not been received by the State Treasury Department's Risk Management Division until April 24. DOT filed a brief in opposition and requested that the matter be listed for oral argument.

On September 5, 2012, the judge vacated his previous order and scheduled argument on plaintiff's motion. After considering oral argument on September 28, the judge denied plaintiff s motion, and on October 18, he entered a conforming order. This appeal ensued.

Plaintiff claims that she demonstrated "extraordinary circumstances" excusing her failure to meet the notice provisions of the TCA. We have considered plaintiff s argument in light of the record and applicable legal standards. We affirm.

N.J.S.A. 59:8-8 requires that a notice of claim be filed with a public entity within ninety days of a claim's accrual, otherwise the claim is "forever barred." As the Court recently noted, "the 'harshness' of the ninety-day requirement is alleviated by the statutory provision that allows the late filing of a notice of a claim under limited circumstances." D.D. v. Univ. of Med. and Dentistry, 213 N.J. 130, 146 (2013) (citing Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011)). Relief is provided through N.J.S.A. 59:8-9, which permits "[a]pplication to the court for permission to file a late notice of claim . . . 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." (Emphasis added). "By its terms, the statute commits the authority to grant a plaintiff's motion for leave to file late notice 'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). The Legislature did not define what circumstances were "extraordinary," but rather, left that determination to be made on a case-by-case basis. Lowe v. Zarghami, 158 N.J. 606, 626 (1999).

Thus, "[t]rial courts, in exercising their statutory authority, and appellate courts, in reviewing those decisions, must ensure that their decisions are faithful to the overall legislative framework in order that the statute's essential purposes be preserved and not eroded through excessive or inappropriate exceptions." D.D., supra, 213 N.J. at 148-49. "Courts faced with applications for leave to file a late notice of claim, therefore, must proceed with their evaluation mindful of the Legislature's direction that the proofs demonstrate circumstances that are not merely sufficient, but that they instead be extraordinary." Id. at 149.

The facts in this case are remarkably similar to those presented in Blank v. City of Elizabeth, 162 N.J. 150 (1999). There, the plaintiff, who did not speak English, tripped and fell on February 27, 1997, over a pipe protruding from a sidewalk abutting residential premises. Id. at 151. She served notice on the property owners' insurance carrier, who, in November, advised that the pipe was owned by the City of Elizabeth (Elizabeth). Id. at 152. The plaintiff then filed a motion to serve a late notice of claim on Elizabeth one month later, or roughly ten months after the accrual of her claim. Ibid.

The plaintiff's counsel conceded that that the so-called "'pipe' was in fact a round, metal shut-off valve protruding above the sidewalk that, on visual inspection, readily would have been identified as an appurtenance of a water supply system." Ibid. 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 [the] installation and maintenance of the shut-off valve." Id. at 152-53. Under those circumstances, the plaintiff failed to demonstrate "extraordinary circumstances" justifying the late notice of claim. Id. at 153.

Plaintiff in this case contends that she used reasonable efforts to identify the party responsible for the metal fragment over which she tripped and fell. She claims that visual inspection of the stump did not reveal it was the remnant of a street sign. However, the motion judge rejected this argument. He concluded that given the stump's shape and location, it was obviously a "street sign." Moreover, we must reasonably assume that despite her protestations to the contrary, plaintiff initially concluded that the metal fragment may have had some relationship to the road, otherwise she would not have notified the City in the first instance. Within approximately one month of her fall, plaintiff knew that the road adjacent to the area in which she fell, Route 130, was not owned by the City. She could have easily determined that Route 130 was a road owned by the State and maintained by the DOT.

We have said that "where discovering the identity of a responsible party is not thwarted by the original defendants, the issue becomes 'whether the plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor.'" Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533 (App. Div. 2010) (quoting Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008)). Here, neither the City nor Patriot did anything to thwart plaintiff's efforts.

We find no mistaken exercise of the judge's discretion in denying plaintiff's motion to file a late notice of claim.