SARAH WEINGARTNER, et al. v. TOWNSHIP OF DEPTFORD, OFFICER MICHAEL TAYLOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5914-05T55914-05T5

SARAH WEINGARTNER, SEAN

WEINGARTNER AND GWENDOLYN

WEINGARTNER, DECEASED,

Plaintiffs-Appellants/

Cross-Respondents,

v.

TOWNSHIP OF DEPTFORD,

OFFICER MICHAEL TAYLOR,

Defendants-Respondents,

and

COUNTY OF GLOUCESTER,

Defendant-Respondent/

Cross-Appellant.

 

Argued May 9, 2007 - Decided June 1, 2007

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-534-06.

Michael G. Donahue argued the cause for appellants/cross-respondents (Stark & Stark, attorneys; Anthony L. Marchetti, Jr., of counsel; Karen M. Murray, on the brief).

Kenneth M. Courtney argued the cause for respondent/cross-appellant, County of Gloucester (Edward H. Keiper, attorney; Jaunice M. Canning, on the brief).

PER CURIAM

On Wednesday, March 30, 2005, Sarah Weingartner, who was twenty-two years old and nearly eight months pregnant, was driving in Deptford Township (the Township) when she stopped to make a left-hand turn. Her vehicle was struck by a vehicle operated by Deptford Police Officer Michael Taylor, who was responding to a 911 call and was traveling approximately twenty-five miles per hour over the posted forty mile-per-hour speed limit. The accident caused plaintiff serious injuries, including the loss of her fetus.

Plaintiff's counsel filed a timely notice of claim, pursuant to N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act), with the Township. Plaintiff appeals from a June 23, 2006 order denying her motion for leave to file a late claim against the County of Gloucester, the public entity that operated the 911 call center. We affirm.

Following the accident, plaintiff remained in a coma until approximately April 18, 2005. On May 4, 2005, she was transferred to a rehabilitation hospital from which she was ultimately discharged on May 18, 2005. Among the injuries she sustained in the accident were pelvic fractures, a punctured diaphragm, a pierced liver, a fractured clavicle, and internal bleeding. Procedures performed on plaintiff included an emergency C-section, a tracheotomy, removal of her spleen, and multiple blood transfusions. The scar on her abdomen remained open for approximately six months.

Plaintiff suffered serious emotional harm as a result of her injuries and the loss of her fetus. She has "had suicidal thoughts many times due to the crash and the loss of [her] baby that resulted" from the crash. Plaintiff was depressed. She remained on anti-depressants for at least a year, and has had "several breakdowns."

As noted, plaintiff provided a timely notice of claim to Deptford Township. That notice, dated June 27, 2005, included the following information:

On March 30, 2005, at the intersection of Delsea Drive and Lexington Avenue, Deptford, NJ, claimant, Sarah Weingartner, received personal injuries under the following circumstances: claimant was on her way to morning bowling class held at Brunswick Lane. Claimant had her left turn signal on and was about to make a left hand turn into the complex when Officer Taylor smashed into her vehicle.

The notice made no mention of the 911 call or of Gloucester County as a potential defendant.

The notice was served upon the Township Clerk on June 28, 2005. According to a certification of the attorney who represented plaintiff at the time, the County was not served because counsel "believed, although mistakenly, that Deptford Township controlled the 911 Dispatch for Deptford Township's police department."

The county prosecutor and Township police department instituted an investigation of the accident. According to the accident report, based on a review of the police dispatch tape, the investigating officer, a police department captain, concluded that the police dispatcher may have been unfamiliar with the area of the call and "was not listening to the caller as intently as she should have." Consequently, Patrolman Taylor may have believed that the call was more serious than it actually was, and required a "code 3" response, including emergency lights and siren. The officer's mistaken belief that there was a serious emergency may have caused him to exceed the posted forty mile-per-hour speed limit by "as much as 25 MPH"; according to the police department investigation, his excess speed was the "main contributing factor" in the crash.

Newspaper articles immediately after the accident indicated that there was some question as to whether the officer was responding to an actual emergency. One such article said that the police would "be checking into the 911 call."

As a result of her injuries, plaintiff had been unable to meet with law enforcement authorities until September 2005. She claims that neither she nor her counsel received the accident report until approximately "the fall of 2005, after the initial ninety day tort claims period had run." At that time, the attorney who was representing plaintiff believed that the "police dispatcher" referred to in the accident report was a Township employee; she was unaware that police dispatch was a county function.

Plaintiff obtained new counsel in March 2006. On March 30, 2006, approximately three weeks after being retained, new counsel filed a motion for leave to file a late tort claim notice against Gloucester County.

The motion was argued on May 23, 2006, before Judge Morgan. The judge focused on whether plaintiff had demonstrated extraordinary circumstances permitting the filing of the tort claim notice beyond the ninety-day deadline set forth by statute. See N.J.S.A. 59:8-9. In arriving at his decision that plaintiff failed to establish extraordinary circumstances, the judge made the following findings and conclusions:

So let me go to the question of whether there's extraordinary circumstances. The bottom line is I can't find extraordinary circumstances. We have Ms. Weingartner who is very injured. There is no question about that. Defense acknowledges that. That's not even a debate in this part of the application. And there is not a debate that she is incapacitated for a significant part of the time, such [that] the cases like the [Maher v. County of Mercer, 384 N.J. Super. 182 (App. Div. 2006)] case, the [Estate of McGrath v. N. Jersey Dist. Water Supply Comm'n, 224 N.J. Super. 563 (Law Div. 1986)] case would be implicated. But that disability ended at some point in time and well before all of this, all these motions were filed.

The question against the county, basically, is that they turn out to be the dispatch. And the allegation as to extraordinary circumstances that counsel, not Mr. Marchetti, but the counsel that was with the previous law firm, that came over to Mr. Marchetti's firm, felt that the dispatch was Deptford Township's. She was mistaken about that. And when the transfer occurred [that's when counsel] learned that, really, dispatch is operated by the county.

There is nothing to indicate why it is that the plaintiff's counsel wasn't able to investigate that any further to learn the proper identity of the dispatch. I don't think it's necessary a hidden fact that the dispatch is a county dispatch. That's not to say that historically towns didn't have their local dispatch. That was pretty common. But in most more recent years the county is the dispatch. It seems to me something that could have been reasonably investigated. Unfortunately it wasn't, and didn't really become a known fact until the case got to new counsel.

There is no indication in the file, other than disability as it relates to Mrs. Weingartner, why it took so long to come to that determination. And in my mind the only reason that it finally was learned is just because the file got switched from one law firm to another law firm. And I'm specifically saying on the record that's not a reason to support an extraordinary circumstance claim.

I also find on the record that Mrs. Weingartner, though she is very severely injured, and obviously from an emotional standpoint because of the loss of her child, is severely injured in that respect. But it doesn't seem to me that that necessarily played a part in the determination as to the plaintiff and plaintiff's counsels investigating and finding out that the correct defendant, or the correct dispatch was the county as opposed to the township. There is not even an indication in the original tort claims notice that there is even a reference to dispatch.

Under the Act, a party has ninety days from the time a claim accrues to file a notice of claim. N.J.S.A. 59:8-8. Filing a late notice of claim is permitted by N.J.S.A. 59:8-9, under the following circumstances:

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.]

What constitutes extraordinary circumstances is determined on a case-by-case basis. Lowe v. Zarghami, 158 N.J. 606, 626 (1999). While prior to a 1994 amendment to the Tort Claims Act, L. 1994, c. 49, 5, claimants only had to demonstrate "sufficient reasons for the delay, and that the State would not be prejudiced by the result," when the Act was amended in 1994, the Legislature required that the "sufficient reasons" for late filings constitute "extraordinary circumstances," suggesting a stricter standard than that which had been previously applied. Lowe, supra, 158 N.J. at 625-26 (quotations omitted). The 1994 amendment further required that a late notice be filed within a reasonable time after the expiration of the ninety-day period. N.J.S.A. 59:8-9; L. 1972, c. 45, 1.

While the court may permit a late filing "at any time within one year after the accrual of" the claimant's claim, N.J.S.A. 59:8-9, the grant or denial of permission "within the one-year period is a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). In exercising that discretion, a court may not overlook the failure of a plaintiff or his or her counsel to perform a proper investigation. Blank v. City of Elizabeth, 318 N.J. Super. 106, 120 (App. Div.) (Kleiner, J., dissenting), aff'd in part and modified in part, 162 N.J. 150 (1999).

Against this legal background, we are not convinced that the trial court abused its discretion in disallowing plaintiff's motion to file a late notice of claim. As the court properly pointed out, there was "nothing to indicate" why plaintiff's counsel was unable to investigate and learn that the County operated the police dispatch before the expiration of the ninety-day period within which to file a notice of claim. By the expiration of the ninety days, as is evident by counsel's certification, counsel was aware that there may have been a problem with the 911 call, leading to a misunderstanding by the police officer that he was responding to an emergency. Nevertheless, no investigation as to who was responsible for the 911 call was undertaken until after plaintiff and counsel met with the county prosecutor and the Township police in September 2005, six months after the accident.

To succeed on a motion to file a late notice of claim, a claimant must demonstrate that extraordinary circumstances existed during the ninety-day notice period. We agree with the trial court that plaintiff simply has not made that showing. While plaintiff was disabled for a substantial portion of the ninety-day period, counsel was aware of the potential problem with the dispatch but did not notice the County because, as counsel indicated in her certification, she mistakenly believed that Deptford Township controlled the police department's dispatch. That does not satisfy the requirements of the Act.

Given our determination, we do not address whether the tort claim notice as to the County was made within a reasonable time after the expiration of the ninety-day period, nor do we address whether the County was substantially prejudiced by the delay.

 
We affirm substantially for the reasons expressed by the trial court.

(continued)

(continued)

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A-5914-05T5

June 1, 2007