ESTATE OF PATRICK MAYES v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ESTATE OF PATRICK MAYES,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY AND

NEW JERSEY TRANSIT,

Defendants,

and

TOWNSHIP OF WILLINGBORO AND

POLICE OFFICER JOHN MICHENER,

Defendants-Appellants.

___________________________________

April 13, 2015

Submitted March 4, 2015 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2698-13.

Zeller & Wieliczko, LLP, attorneys for appellants (Dean R. Wittman, on the brief).

Respondent Estate of Patrick Mayes has not filed a brief.

PER CURIAM

The Township of Willingboro and Willingboro Police Officer John Michener appeal from the order of the Law Division granting the Estate of Patrick Mayes's motion to file a late notice of tort claim required under N.J.S.A. 59:8-9.1 Citing McDade v. Siazon, 208 N.J. 463 (2011), the motion judge found the facts surrounding the delay in filing the tort claims notice warranted the tolling of the ninety-day period provided in N.J.S.A. 59:8-8 until the time plaintiff's counsel became actually aware of the existence of a potential cause of action against defendants. From that point on, the motion judge found plaintiff's counsel acted "with reasonable diligence" in filing the notice required under N.J.S.A. 59:8-8.

Defendants argue the motion judge erred by misapplying the Court's holding in McDade and consequently failing to apply the standard established in N.J.S.A. 59:8-9 for determining whether plaintiff is entitled to file a late notice of claim. According to defendants, the undisputed and controlling facts in this case show plaintiff does not have "sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by [N.J.S.A.] 59:8-8[.]" See N.J.S.A. 59:8-9.

After reviewing the record developed before the Law Division, we agree with defendants' arguments and reverse. The following facts will inform our legal analysis.

I

On December 3, 2012, Patrick Mayes was struck and killed by multiple vehicles after exiting a New Jersey Transit (NJT) bus on Route 130 in the Township of Willingboro. On December 14, 2012, the administratrix of his estate met with an attorney to discuss a potential suit against the responsible parties. On that same date, counsel "requested" a copy of the police report of the accident. The record before us does not disclose whether counsel made this request in writing or by telephone.

On January 7, 2013, counsel received a one-page accident report from the Burlington County Prosecutor's Office (BCPO). Although the incomplete report was faxed by the BCPO, the top left corner of this document clearly shows the report was prepared by the Willingboro Police Department. The report was also in the standard accident report format used by police officers to record the information gathered and observations made at the site of the accident.

The one-page report includes a blank square in the center. This is the space used by the responding police officer to diagram the positions of the vehicles and pedestrians involved in the accident. The one-page report received by counsel on January 7, 2013, contained a handwritten notation "See Attached" in this blank square. Section 125 of the one-page report, denoted "Accident Description," includes the following typed statement: "Pedestrian walked into street contrary to the traffic signal and was struck by Vehicle 1 and Vehicle 2. See attached Initial Report for details. #162." The report also identified the names and addresses of the drivers of the two vehicles, and is signed by the police officer who authored it. Although the officer's signature is illegible, the badge number is clearly listed as #162.

According to plaintiff's counsel, on February 6, 2013, almost a month after he received the one-page incomplete report authored by Willingboro Police Officer Badge #162, he received an autopsy/toxicology report from the Burlington County Medical Examiner. Despite the obviously incomplete nature of the information available to him at that point in time, counsel certified to the Law Division judge that "[t]he initial review of the circumstances surrounding this matter, [including the one-page police report] appeared straight forward [sic] and not involving public entities and/or their employees."

Although not entirely clear, the motion judge found that on February 6, 2013, plaintiff's counsel retained Atlantic Investigations, LLC (Atlantic), to assist him in investigating the case. Plaintiff's counsel described the principal of this company as "a former Hammonton Police Officer . . . [who] hired other people to work with him and going out to the highway to take measurements, take photographs."

In support of the motion for leave to file a late tort claims notice, plaintiff submitted the certification of Gregory W. Crescenzo, who described himself as a "licensed private investigator" and "Principal Investigator and Shareholder" of Atlantic. In this brief certification dated November 6, 2013, containing a total of six numbered paragraphs, Crescenzo averred

4. We were able to obtain more comprehensive reports from the Willingboro Police Department and subsequently conducted an accident reconstruction and site surveillance which revealed that New Jersey Transit may have liability in this matter.

5. Additionally our investigation revealed that the Officer may have deviated from Acceptable protocol in the aid of Mr. Mayes and may have contributed to his death.

6. This information was discovered and reports relayed to [plaintiff's counsel], attorney for the Estate of Patrick Mayes in the Month of October 2013.

The record before us does not contain a copy of the "information" and "reports" Crescenzo "relayed" to plaintiff's counsel sometime in October 2013. However, in a certification dated March 12, 2014, Crescenzo stated that "[d]espite numerous requests in person to Records Bureau of the Willingboro Police Department, we were never given the full report. Due to our difficulty in obtaining the complete report, we requested [plaintiff's counsel] to request all records, which request he forwarded on August 2, 2013[.]"

Plaintiff's counsel's certification does not describe what efforts he personally made to obtain a complete copy of the Willingboro Police Department report after he received the incomplete one-page report on January 7, 2013. However, in his August 2, 2013 letter to the Willingboro Police Department, plaintiff's counsel requested the following specific items: (1) the CAD (computer-aided dispatch) report; (2) photographs; (3) all radio transmissions from one hour prior to one hour post-accident; (4) all 9-1-1 calls one hour prior to one hour post-accident; (5) all completed police reports; (6) all recorded statements of witnesses; (7) all recorded statements of passengers; and (8) all recorded statements of drivers. Plaintiff's counsel sent this written request to the Willingboro Police Department 242 days after the December 3, 2012 accident. The record before us contains a copy of plaintiff's motion brief before the Law Division. In this brief, plaintiff's counsel describes his theory of liability against defendant Officer Michener and, by virtue of respondeat superior liability, the Township of Willingboro. We decline to describe in detail these allegations because they are not supported by competent evidence in the record. Suffice it to say that plaintiff's counsel alleges Officer Michener may have delayed emergency medical personnel from responding to the accident scene. As a consequence of this delay, he may have, in some unspecified manner, contributed to Patrick Mayes's demise.

On November 6, 2013, 338 days after the accident, plaintiff's counsel filed a motion for leave to file a late notice of tort claim. The Law Division heard oral argument on plaintiff's motion on January 17, 2014. After hearing from both sides, the motion judge indicated she was "unable to make a determination based on the information in the record before me." She directed plaintiff's counsel

[E]xplain to me what it is that you did between December 12th or 14th [2012] when you met with the administrator and the 90 days to gather the information that you needed to make your determination about whether any public entity is involved. . . .

But sitting here today what I say to myself is if the complete fatal accident report is dated December 3rd [2012], it was probably prepared within the next couple of days after that. My understanding of how [it] happens is that it gets started on the day of the incident and then the supplemental reports and things like that happen. But it looks like it was available . . . in the beginning of December right after the accident and yet, nothing happened.

And if your theory against the Township is that the police officer acted improperly in calling off the ambulance . . . I'd like to know what went on. So I would like you to provide me . . . with a certification or something about all the efforts that you made between December 14th [2012] and May [2013] when you finally received this because the cases require that you at least do some investigation. And I want to know what that was.

In response to the motion judge's order, plaintiff's counsel submitted Crescenzo's certification dated March 12, 2014, which repeated some of the information he provided in support of plaintiff's motion filed on November 6, 2014. The only "new" information contained in the March 12, 2014 certification was Crescenzo's disclosure to being unable to obtain the information directly from the Willingboro Police Department and his request to plaintiff's counsel to write the August 2, 2013 letter, which resulted in obtaining all of the information he needed. Crescenzo also revealed that "the full report was forwarded to [plaintiff's counsel] over thirty [] days later," in September 2013.

The motion judge reconvened the motion hearing and heard additional oral argument on March 14, 2014. Based on this record, the judge granted plaintiff's motion to file the tort claims notice 466 days after the date of the accident. Presumably based on plaintiff's counsel's November 6, 2013 certification, the motion judge accepted as reasonable and plausible plaintiff's counsel's assertion that he did not have any way of discovering Officer Michener's potential liability before receiving Atlantic's October 2013 report.

Interpreting plaintiff's arguments as based on the application of the discovery rule, the motion judge made the following findings

What [plaintiff's counsel] actually is arguing . . . sounds a lot like the discovery rule. That until we got all of these papers, [plaintiff's counsel] says we didn't know that the police department acted improperly and we didn't know and had no reason to believe that New Jersey Transit was involved for letting [plaintiff] off at the wrong bus stop.

So the question becomes, you know, was there anything in the happening of the accident that would tip off [plaintiff s counsel] to think that any other public entities were involved. And the record on this motion is silent as to that. There doesn't seem to be anything.

So the question then is once [plaintiff's counsel] found out that there was something that could involve the public entities, they act with all due diligence. We know from a variety of cases, for example, McDade v. Siazon[,] 208 N.J. 463. That while the discovery rule does apply, you have to act diligently in moving along, especially once you find out the public entities are involved.

And when there's lots to criticize [plaintiff s counsel] in the handling of the case from January to August, but I'm not sure that it raises to the level of such an inadequate operation that it doesn t show some diligence. And then clearly, once [plaintiff's counsel] got the information . . . it is clear that he did act with due diligence or reasonable diligence. He got the information from [the] investigator in August. He got a full report in September and this was filed November 6th. So it was within at least the 90 days of getting his full report from his investigator that he tells us and the investigator tells us implicates the public entities.

I am satisfied that the plaintiff has met his burden of proof, that at least under the discovery rule there [was] an investigation that was conducted and once he found out that there might be liability on the part of the public entities that he acted with reasonable diligence and I will allow the filing -- I will grant the motion and allow the filing of the late tort claims notice.

[(Emphasis added).]

II

As a jurisdictional prerequisite to filing a suit against a public entity or public employee, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, requires a claimant to file a notice of claim, N.J.S.A. 59:8-3, within ninety days of the accrual of such claim. N.J.S.A. 59:8-8. This notice of claim must be signed by the claimant, N.J.S.A. 59:8-5, and, at a minimum, contain the information required under N.J.S.A. 59:8-4.

N.J.S.A. 59:8-9 describes the standard the trial court must apply in deciding a motion to file a tort claims notice outside the ninety-day window required by N.J.S.A. 59:8-8. N.J.S.A. 59:8-9 provides

A claimant who fails to file notice of his claim within 90 days as provided in [N.J.S.A.] 59:8-8 of this act, 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 [ N.J.S.A.] 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; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.

[(Emphasis added).]

The salient facts controlling the outcome of this appeal are undisputed. The legal representative of the Estate of Patrick Mayes met with counsel on December 14, 2012, eleven days after the fatal accident that gave rise to this cause of action. On January 7, 2013, counsel received a copy of a one-page police report faxed to him by the BCPO. Although the report was obviously incomplete, there was a great deal of information that counsel could have gleaned from this one-page report. The report clearly identified the Willingboro Police Department as the law enforcement agency that responded to the scene of the accident. The police officer who authored the report was identified by badge number. Finally, as the record shows, all of the information plaintiff's counsel needed to determine whether to name the Township of Willingboro and Officer Michener as parties to this action was freely given to him by the Willingboro Police Department in response to his August 2, 2013 letter. There is nothing in the record that shows plaintiff's counsel could not have obtained this same information within ninety days of December 3, 2012,2 the day Mr. Mayes died. Indeed, counsel could have a filed a timely notice even if he waited to take reasonable steps to investigate this case until January 7, 2013, the date he received the fax from the BCPO.

In D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130, 156 (2013) the Supreme Court made clear that "an attorney's inattention to a file, or even ignorance of the law" does not constitute "extraordinary circumstances" to warrant the relief afforded under N.J.S.A. 59:8-9. As was the case in D.D., this case is about attorney inattention in failing to take the steps necessary to investigate the case in a timely fashion to ascertain whether there was a plausible cause of action against these two defendants to warrant serving them with the tort claims notice within the time period established in N.J.S.A. 59:8-8.

Although not necessary to decide this appeal, in the interest of completeness we also point out that the motion judge misapplied the Court's holding in McDade. The discovery rule tolls the start of the ninety-day period in N.J.S.A. 59:8-8 until the claimant has knowledge that a third party is actually responsible for the injury. McDade, supra, 208 N.J. at 475. See also Beauchamp, supra, 164 N.J. at 117. "The test for the application of the discovery rule is 'whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.'" McDade, supra, 208 N.J. at 475 (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 240 (2001)).

Here, decedent perished in a pedestrian accident on December 3, 2012. There is no ambiguity or doubt about the existence of a plausible cause of action against potentially liable third parties. As we have discussed, a reasonably competent attorney would have taken the steps necessary to investigate this case to ascertain, in a timely manner, the potential liability of public actors.

Reversed.

1 Under Rule 2:2-3(a)(3) a party may appeal as a final judgment "[a]n order granting or denying a motion to extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9, whether entered in the cause or by a separate action[.]"

2 Although not necessary to decide this appeal, we nevertheless make clear plaintiff's cause of action accrued on December 3, 2012, the date of Patrick Mayes's death. See Beauchamp v. Amedio, 164 N.J. 111, 119 (2000); Yancoskie v. Delaware River Port Auth., 78 N.J. 321, 323 (1978). Thus, plaintiff had until March 3, 2013, to file a claims notice under the TCA with any potentially liable state actors.