JAMES TRACEY v. BOROUGH OF ESSEX FELLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES TRACEY AND PATRICIA TRACEY,

Plaintiffs-Appellants,

v.

BOROUGH OF ESSEX FELLS AND

DONALD ALLEN,

Defendants-Respondents.

________________________________

April 8, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3907-13.

Wayne D. Greenfeder argued the cause for appellants (Kraemer Burns, P.A., attorneys; Mr. Greenfeder, Douglas E. Burns and Waldron Kraemer, of counsel and on the briefs).

Hilary L. Brunell argued the cause for respondents (Nuzzi & Mason, LLC, attorneys; Ms. Brunell, on the brief).

PER CURIAM

This appeal concerns the late filing of a notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiff James Tracey appeals from the June 14, 2013 Law Division order, which denied his motion for an order deeming as timely filed a notice of claim submitted to the administrator of defendant Borough of Essex Fells (Borough).1 We affirm.

The record reveals that on June 7, 2012, plaintiff was jogging when he was "almost struck" by an unmarked vehicle from the Borough of Essex Fells Police Department. Plaintiff "twisted his legs and was able to get up and walk home." He then drove to police headquarters and reported that part of his body came into contact with the side of the police vehicle, "but he was able to get out of the way;" he was not injured or in need of medical treatment; and "he wanted to document the incident should he require any medical attention in the future." The police issued an initial general complaint and incident report (collectively, the incident reports). Because plaintiff said he was not injured, the police closed the matter and there was no further investigation.

At oral argument of this appeal, plaintiff's counsel represented that approximately one or two months after the incident, plaintiff went to a hospital emergency room for treatment for knee pain and was told he only had a bruise. The record reveals that plaintiff also saw an orthopedist, who allegedly advised him that "there was no real damage done, just that he had some swelling, which [the doctor] felt would resolve." Plaintiff's knee pain apparently did not resolve because in March 2013, he had an MRI on both knees, which revealed a large "tear of the medial meniscus in the right knee and a small flap tear of the posterior horn of the lateral meniscus."

Over ten months after the incident, on April 10, 2013, plaintiff submitted a notice of tort claim to the Borough administrator. On April 16, 2013, plaintiff saw an orthopedic surgeon who allegedly diagnosed a bilateral medial meniscus tear, recommended surgery on both knees, and attributed the injuries to the June 7, 2012 incident.2

The Borough rejected plaintiff's untimely notice of claim. Plaintiff then filed a motion to deem the notice as timely filed. He argued there were extraordinary circumstances to relax the ninety-day filing period required by N.J.S.A. 59:8-8 because he did not discover until April 16, 2013 that he sustained an injury attributable to the incident. In a June 14, 2013 oral opinion, Judge Thomas Vena denied plaintiff's motion. Relying on Beauchamp v. Amedio, 164 N.J. 111 (2000), the judge found there were no extraordinary circumstances because plaintiff discovered he had suffered an injury, albeit a minor one, within the ninety-day period.

On appeal, plaintiff raises a new argument: that the incident reports substantially complied with the TCA's notice requirement.3 Generally, we decline to address issues that were not presented to the trial court unless they are jurisdictional in nature and substantially implicate the public interest, which is not the case here. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997). Nonetheless, we shall address plaintiff's meritless argument.

A person is barred from bringing an action against a public entity or public employee unless he or she complies with the TCA's notice requirements. N.J.S.A. 59:8-3, -4, -8. The purposes of the notice requirement are:

to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claims; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.

[Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (quoting Beauchamp, supra, 164 N.J. at 121-22 (internal quotation marks and citations omitted).]

"In keeping with these goals, N.J.S.A. 59:8-4 is 'designed to provide the public entity with sufficient information to enable it promptly to evaluate its liability and potential exposure and, if it chooses, to correct a defective condition and also engage in settlement negotiations prior to the commencement of suit.'" Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009) (quoting Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004)).

"[T]he [TCA] demands, at a minimum, the filing of written notice." D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 159 (2013). The written notice must include specific information, such as a general description of the injury, damage or loss incurred, and the amount claimed. N.J.S.A. 59:8-4. The notice must also be signed by the claimant or a person on his behalf, N.J.S.A. 59:8-5, and filed with the public entity within ninety days of the accrual of the claim, N.J.S.A. 59:8-8.4

The doctrine of substantial compliance may apply in limited circumstances to permit the late filing of a notice of claim. D.D., supra, 213 N.J. at 159. "'[S]ubstantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notices of claims are required.'" Lebron, supra, 407 N.J. Super. at 216. The doctrine "has been limited carefully to those situations in which the notice, although both timely and in writing, had technical deficiencies that did not deprive the public entity of the effective notice contemplated by the statute." D.D., supra, 213 N.J. at 159. In addition,

[t]he doctrine requires the moving party to show: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim; and (5) a reasonable explanation why there was not strict compliance with the statute.

[LeBron, supra, 407 N.J. Super. at 216 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003)).]

Plaintiff failed to establish these factors.

More importantly, the incident reports are no substitute for the written notice the TCA requires, nor do they bring plaintiff into substantial compliance with the TCA's notice requirements. The reports were not signed by plaintiff or someone on his behalf, they were not filed with the Borough administrator, and they gave no notice whatsoever that plaintiff was injured or intended to assert a claim against the Borough. See Wunschel v. Jersey City, 96 N.J. 651, 667-68 (1984) (holding that a worker's compensation petition did not constitute substantial compliance where it gave no notice of an intention to assert a claim).

Affirmed.

1 Plaintiff's wife, Patricia Tracey, who filed a per quod claim, also appeals.

2 Plaintiff did not submit a certification from the doctor, as required by Rule 1:6-6. In addition, the purported doctor's office note plaintiff submitted in support of his motion did not state that the injuries were attributable to the incident within a reasonable degree of medical probability.

3 Plaintiff did not address the extraordinary circumstances issue in his merits brief. Thus, the issue is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 2:6-2 (2014).

4 A claim accrues on "the date of the incident on which the negligent act or omission took place." Beauchamp, supra, 164 N.J. at 117. The only exception is when "the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible." Ibid. "However, once an injury is known, even a minor one, the ninety day notice is triggered. Worsening of that injury does not extend the time or otherwise alter the party's obligation." Id. at 122. In our view, Judge Vena was correct to deny plaintiff's motion for lack of extraordinary circumstances. Approximately one or two months after the incident, plaintiff knew he had been injured, as he was experiencing pain severe enough to require emergency room treatment. Since there was no evidence of an intervening accident, plaintiff knew or should have known that the injury, although allegedly minor, was attributable to the subject incident.