DOROTHY CORLISS and VERNON CORLISS, husband et al. v. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0245-06T20245-06T2

DOROTHY CORLISS and

VERNON CORLISS, husband

and wife,

Plaintiffs-Appellants,

v.

CITY OF HAMMONTON,

Defendant-Respondent.

________________________________________________________________

 

Submitted April 25, 2007 - Decided May 14, 2007

Before Judges Parker and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4057-05.

Jeffrey H. Sutherland, attorney for appellants.

Reynolds & Drake, attorneys for respondent (Thomas B. Reynolds, of counsel; John J. Bannan, on the brief).

PER CURIAM

On October 11, 2003, plaintiffs Dorothy and Vernon Corliss were vendors at an arts and crafts show at Hammonton Lake Park, in the City of Hammonton (defendant or Hammonton). Organizers of the event placed temporary spotlights around the lake to allow the show to continue into the evening hours and plaintiffs stayed at the event until after dark. When the show ended, plaintiffs packed their displays and crafts and returned to their vehicle on foot along a road fenced off for pedestrian traffic. As they walked, one of the temporary spotlights malfunctioned and the immediate area was darkened. Dorothy Corliss tripped over a sped bump in the road, fell, and was injured.

On May 27, 2004, 229 days after the accident occurred, plaintiffs filed a tort claims notice with Hammonton. On June 3, 2004, the defendant's claims administrator responded to plaintiff's counsel by sending him supplementary claim forms routinely utilized by defendant and duly adopted by the governing body of Hammonton. The correspondence requested plaintiff's counsel "have [his] client complete and return the enclosed questionnaire as soon as possible." Having not received a response, on July 1, 2004, the claims administrator sent a second letter advising plaintiffs' counsel that the claim was denied.

On September 3, 2004, plaintiffs returned the completed supplemental forms to the claims administrator. Thereafter, the parties had no further contact until plaintiffs filed their complaint on July 6, 2005. Hammonton filed an answer on August 11, 2005, and shortly thereafter moved for summary judgment seeking dismissal of the complaint based upon plaintiffs' failure to comply with the appropriate notice provisions of the Tort Claims Act, N.J.S.A. 59:1-1 through 12-3 (the TCA). It argued that plaintiffs had failed to provide notice of the claim within ninety days of its accrual, pursuant to N.J.S.A. 59:8-8, and had failed to move for leave to file late notice of the claim within one year of accrual, pursuant to N.J.S.A. 59:8-9.

The motion judge initially heard arguments on January 5, 2006, reserving his decision to allow plaintiffs to supplement their brief. Relying upon our decision in Hill v. Bd. of Ed. of Middletown, 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982), plaintiffs argued that Hammonton was estopped from raising the defense because 1) representations made to the plaintiffs by defendant's representatives at the time of the fall conveyed the impression that defendants had received appropriate notice of the claim, and 2) the June 3, 2004 letter from defendant's claims administrator created an objective impression that Hammonton was waiving the statute's notice protections. Once again, the motion judge reserved and concluded he would conduct a plenary hearing on the issues.

On May 5, 2006, both plaintiffs testified at the hearing. Based upon their testimony, it would appear that the motion judge implicitly concluded that whatever verbal notice may have been provided at the time of the accident to defendant's representatives, it did not amount to substantial compliance with the TCA's notice requirement. The judge then concluded that the June 3, 2004, letter "created the objective impression that the town was waiving the notice requirement." He further found that Hammonton had not been "substantially prejudiced" by the plaintiffs' failure to provide timely notice. He described the remaining issue to be decided as follows:

[W]hether if even unintended, the public entity . . . created an objective impression that it was waiving the notice requirements, whether . . . the inquiry stops there or whether it's incumbent upon the plaintiff to demonstrate that had she . . . not been misled and had she filed within one year for leave to file a late tort claims notice, there would have been grounds to support it, or whether the inquiry simply ends with a finding that the plaintiff was objectively misled.

The judge concluded that despite their justifiable reliance upon the defendant's correspondence, plaintiffs needed to demonstrate "extraordinary circumstances" excusing their failure to file a notice of claim within ninety days of accrual. He concluded they had failed to do so, and granted summary judgment in favor of defendant.

Plaintiffs moved for reconsideration and defendant cross-moved for reconsideration. Plaintiffs argued that once they demonstrated a justifiable reliance upon defendant's correspondence that objectively created the impression that defendant was waiving the notice defense, they no longer needed to demonstrate extraordinary circumstances excusing their failure to file the notice within ninety days of accrual. Defendant argued the judge had improperly concluded it had waived, or should be estopped from asserting, the notice defense in the first instance.

In a written opinion, the motion judge found that plaintiffs failed to "notify Hammonton of the accident until 229 days after their cause of action accrued," and that defendant denied plaintiffs' claim "more than three months before the one-year anniversary," leaving plaintiffs that much time to move for leave to file a late notice of claim. Lastly, he noted that "plaintiffs conceded . . . that had they so moved, they would not have succeeded because they could not have demonstrated sufficient reasons constituting extraordinary circumstances for their failure" to file a timely claim. He concluded "plaintiffs [were] unable to demonstrate that they relied to their detriment on the conduct of Hammonton, its agents or employees." The judge denied plaintiffs' motion for reconsideration and granted defendant's cross-motion. This appeal ensued.

Plaintiffs raise the following arguments:

POINT I

The trial court erred by finding that the [plaintiffs] had to demonstrate "extraordinary circumstances" if the court finds that the public entity is not prejudiced by the late filing and it "created an objective impression" that it waived it (sic) protections under the [TCA].

POINT II

The trial court erred by finding that "extraordinary circumstances" did not exist allowing the plaintiffs to file a late Tort Claims notice.

We have carefully considered these contentions in light of the record and appropriate legal standards. We affirm.

Pursuant to N.J.S.A. 59:8-8a, the failure to file a claim against a public entity within ninety days of its accrual is an absolute bar to recovery. Guzman v. Perth Amboy, 214 N.J. Super. 167, 171 (App. Div. 1986). It is undisputed that plaintiffs failed to file their claim against Hammonton within ninety days of its accrual. The notice they served after 229 days, without leave of court, was a nullity and cannot be deemed to be substantial compliance with the TCA's notice requirements. Priore v. State, 190 N.J. Super. 127, 130 (App. Div. 1983), rev'd on other grounds, Moon v. Warren Haven Nursing Home, 182 N.J. 507, 511 (2005).

Thus, plaintiffs only ability to salvage their claim was to move pursuant to N.J.S.A. 59:8-9, which provides,

A claimant who fails to file notice of his claim within 90 days . . . may, in the discretion of a judge . . . be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity . . . has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion . . . showing sufficient reasons constituting extraordinary circumstances for [the] 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 . . . .

The decision permitting or denying the filing of a late notice of claim is left to the sound discretion of the motion judge and will not be disturbed absent a clear abuse. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 136 (1988).

Here, however, plaintiffs never moved to file a late notice of claim. Rather, they argued before the motion judge, and now reiterate before us, that defendant should be estopped from asserting the notice defenses. Though he initially found a basis to consider this argument, the trial judge ultimately disagreed with this contention, concluding that plaintiffs did not fail to provide notice because of any detrimental reliance upon defendant's actions. With this ultimate conclusion, we concur.

Plaintiffs' principal reliance upon Hill is misplaced. In Hill, plaintiff filed her suit while still a minor, and the parties engaged in two and one-half years of discovery before the public entity sought dismissal of the complaint based upon failure to comply with the TCA's notice provisions. Hill, supra, 183 N.J. Super. at 38-39. We concluded that this delay "created the objective impression that [the public entity] was waiving the notice requirements," id. at 41, and the passage of time denied plaintiff the ability to move for relief under N.J.S.A. 59:8-9. Id. at 42.

In Anske v. Palisades Park, 139 N.J. Super. 342, 350-51 (App. Div. 1976), we concluded the public entity was barred by equitable estoppel from asserting the TCA's notice defenses. Among other reasons, we noted that the defendant had initially failed to plead the TCA as a defense and then waited to amend its answer until plaintiff lost the opportunity to move for relief pursuant to N.J.S.A. 59:8-9. Id. at 349-50.

Unlike either of those cases, here plaintiffs failed to demonstrate any detrimental reliance based upon Hammonton's acts or omissions. In fact, defendant denied plaintiffs' claim on or about July 1, 2004, leaving plaintiffs with ample time to move for leave to file a late claim. Although defendant's letter of denial does not reference plaintiff's failure to file a timely notice of claim, it certainly should have alerted plaintiff to the fact that defendant did not intend to waive any available defense under the TCA.

Furthermore, to the extent plaintiff argues the initial letter of June 3, 2004, which included Hammonton's supplemental claims forms, created an objective impression that defendant was waiving the notice defenses, and, therefore, despite the later denial letter, they believed no motion was necessary, we disagree. The motion judge's contrary legal conclusion on this discrete issue is entitled to no particular deference in our review. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div. 2006). The June 3, 2004, correspondence acknowledged plaintiffs' late notice of claim and requested completion of the supplemental claim forms. On the second page of the supplemental claim forms, under the heading "NOTE CAREFULLY," defendant advised plaintiffs, "Timely Notice of Claim must be filed within 90 days after the incident giving rise to the claim." No reasonable person would assume that such correspondence, sent by the representative of a third-party claims administrator, meant that Hammonton was in any way waiving its defenses under the TCA.

Lastly, unlike Hill and Anske, defendant moved for summary judgment quickly after filing its answer. It did not lull plaintiffs into believing that it would not challenge the claim by asserting every defense available.

Since defendant did not waive and was not estopped from asserting the notice defenses, it is unnecessary to consider whether plaintiffs demonstrated "extraordinary circumstances" for failing to file a claim within ninety days of accrual. Plaintiffs never sought relief by motion. We only note that the motion judge's determination in this regard was amply supported by the record since plaintiffs never explained why they failed to file any notice of claim within ninety days of the accident. The issue lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-(e)(1)(E).

Affirmed.

 

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A-0245-06T2

May 14, 2007