ROBERT BRYANT v. BURLINGTON TOWNSHIP BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBERT BRYANT and

ANTHONY BRYANT,

Plaintiffs-Appellants,

v.

BURLINGTON TOWNSHIP BOARD

OF EDUCATION,

Defendant-Respondent.

_____________________________________

May 8, 2015

Submitted April 28, 2015 Decided

Before Judges Nugent and Accurso.

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

No. L-2879-13.

Barbour & Associates, LLC, attorneys for appellants (Roger A. Barbour, on the brief).

David M. Serlin, attorney for respondent.

PER CURIAM

In this Title 59 matter, plaintiffs Anthony Bryant and his father, Robert, appeal from the denial of their motion to file a late notice of tort claim. We affirm.

Anthony received a ten-day suspension after a teacher alleged he opened the door to the school auditorium in which students were watching a movie and shouted into the darkened room, "I have a shotgun." The teacher immediately notified the principal, who ordered the high school into lockdown. School officials identified Anthony from a video of the hallway and claim he admitted making the statement in an interview following the incident. Anthony also admitted cutting class and being in the hallway without authorization. In addition to the suspension, Anthony was barred from the senior prom and not allowed to attend graduation ceremonies.

Anthony's father Robert filed an application for emergent relief with the Commissioner of Education on Thursday, June 20, 2013, seeking to allow Anthony to walk with his class at graduation on Monday, June 24. The Commissioner referred the matter to the Office of Administrative Law, which scheduled an emergency hearing for the following Monday, graduation day. At the hearing, plaintiffs contended that Anthony yelled down the hallway to a friend, "I have shotgun," referring to the front seat of the car he and the friend were using to go to an afterschool event. The administrative law judge denied the relief and the Commissioner adopted her decision the same day. More than ninety days later, on November 6, 2013, Anthony and Robert filed a tort claim notice with the school district.

At the hearing on the motion to file the late claim, plaintiffs' counsel explained that Anthony and Robert were each pursuing a claim based on two separate incidents. Plaintiffs contended that Anthony was the victim of excessive discipline following the shotgun incident based, in part, on prior discipline he had received for fighting on a school bus in November 2012.1 Robert filed a certification in support of the motion claiming school officials told him Anthony had been a willing participant in the fight, and he had only recently learned that Anthony had been attacked from behind and assaulted. Robert claimed the school district covered up the assault and disciplined Anthony for participating in the fight. He contended the "misunderstanding as to what [his] son said [regarding the shotgun incident], coupled with the false disciplinary record in his file, caused officials from the school district to treat Anthony Bryant as a repeat offender." He offered no explanation for the failure to file a timely notice of claim beyond the recent revelation of the November 2012 assault on his son.2 Anthony did not file a certification.

After hearing oral argument, Judge Richmond denied both Anthony's and Robert's claims. She found that Robert's ability to file a claim on Anthony's behalf ended when Anthony turned eighteen, so Robert's unawareness of Anthony being assaulted on the bus was of no moment. Because Anthony was certainly aware he had been assaulted, the discovery rule did not come into play and his notice of claim was due within ninety days of his eighteenth birthday. Finding that neither Robert nor Anthony presented "any circumstances, much less extraordinary circumstances" that would explain their failure to file timely notices of tort claim, the judge denied the motion to file a late claim. This appeal followed.

N.J.S.A. 59:8-8 requires that claims for damages against public entities must be filed within ninety days of their accrual. Beauchamp v. Amedio, 164 N.J. 111, 116-18 (2000) (discussing the procedural requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3). Minors' claims accrue on the date they attain their majority. N.J.S.A. 59:8-8; Rost v. Bd. of Educ., 137 N.J. Super. 76, 78 (App. Div. 1975); Vedutis v. Tesi, 135 N.J. Super. 337, 341 (Law Div. 1975), aff'd o.b., 142 N.J. Super. 492 (App. Div. 1976) (holding infant plaintiff may file notice of claim within ninety days of reaching age of majority by virtue of the savings clause in N.J.S.A. 59:8-8).

Although the period for filing is short, any harshness is alleviated by N.J.S.A. 59:8-9, which allows for the filing of late claims. Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011). That statute provides in pertinent part

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 act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter . . . .

[N.J.S.A. 59:8-9.]

Plaintiffs argue here, as they did in the trial court, that their filing was only forty-nine days late and that the Board of Education suffered no prejudice. We agree with Judge Richmond that prejudice to the Board was immaterial because plaintiffs failed to offer any reasons, much less "sufficient reasons constituting extraordinary circumstances" for their late filing. See D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 158 (2013) ("The Legislature's waiver of sovereign immunity remains a limited one and we are not free to expand that waiver beyond its statutorily-established boundaries."). Robert's counsel conceded in the trial court that Robert could not show extraordinary circumstances, and Anthony failed to file any certification whatsoever.

We affirm the denial of plaintiffs' motion to file a late notice of tort claim substantially for the reasons expressed by Judge Richmond in her April 11, 2014 decision on reconsideration.

Affirmed.

1 Defendant contends the only record of Anthony being disciplined for fighting on a school bus notes the date of the incident as November 16, 2011.

2 Plaintiffs' counsel conceded at oral argument that Robert could not show extraordinary circumstances.