DION BASS v. COUNTY OF MIDDLESEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DION BASS,

Plaintiff-Appellant,

v.

COUNTY OF MIDDLESEX,

Defendant-Respondent.

__________________________________________________

June 10, 2014

Submitted May 13, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3343-13.

Thomas E. Hood, P.A., attorneys for appellant (Mr. Hood, of counsel and on the brief).

Martin, Kane & Kuper, attorneys for respondent (John F. Gillick, of counsel and on the brief).

PER CURIAM

Plaintiff Dion Bass appeals from the Law Division's order of June 21, 2013, that denied his motion for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA), against defendant, the County of Middlesex. The motion record is largely undisputed.

On December 19, 2012, plaintiff tripped and fell over a metal cover on the side walk along Oak Tree Road in South Plainfield. The cover bore an embossed stamp, "DOT," in the metal. Plaintiff served a timely notice of claim upon the State of New Jersey on January 5, 2013. By letter dated February 15, 2013, the State Division of Risk Management (the Division), part of the Department of the Treasury, acknowledged receipt of the notice of claim, and advised plaintiff's counsel that "the claim is against a local public entity and does not involve the State . . . or any of its agencies." The letter further stated that based upon its investigation, the Division "f[ound] no evidence of liability on the part of the State."

On March 6, plaintiff's attorney served a notice of claim on the Borough of South Plainfield (South Plainfield) and the Township of Edison (Edison). Edison never responded, but on March 15, South Plainfield, through its joint insurance fund (JIF), sent a ten-page supplemental claim form that plaintiff completed and sent back. The JIF responded on April 3, indicating it would investigate plaintiff's claim. On April 24, the JIF advised that "upon further investigation, [it had] been informed that the [particular] block of Oak Tree Road [was] actually a County roadway and [was] not maintained or controlled by . . . South Plainfield." The JIF denied plaintiff's claim.

On or about May 9, plaintiff filed a motion seeking to serve a late notice of tort claim upon defendant, the County of Middlesex. Plaintiff waived oral argument on the motion. In opposition, defendant filed a certification from the supervisor of its Roads Department. He claimed that defendant owned the roadway in question and that signs clearly indicated the road was a county road. Attached were photos of road signs that included the numerical designation of the road as a county road.

In an oral decision placed on the record, Judge Heidi Willis Currier noted that Oak Tree Road was a "well-travelled road . . . clearly marked as a [c]ounty road." She further determined that "if any investigation was done whatsoever, any type of inspection of this area would have led to the identification of the County." Judge Currier further concluded that plaintiff failed to "set forth any efforts[] that he took[] to do a reasonably prompt or . . . thorough . . . investigation . . . ." She concluded that plaintiff failed to show "extraordinary circumstances for his failure to timely file th[e] claim against the [c]ounty." She entered a conforming order denying plaintiff's motion, and this appeal ensued.

Plaintiff argues that "finger pointing between various public entities justified allowing [him] to file a late notice of claim." We have considered plaintiff's contention in light of the record and applicable legal standards. We affirm.

N.J.S.A. 59:8-8 requires that a notice of claim be filed with a public entity within ninety days of a claim's accrual, otherwise the claim is "forever barred." As the Court recently noted, "the 'harshness' of the ninety-day requirement is alleviated by the statutory provision that allows the late filing of a notice of a claim under limited circumstances." D.D. v. Univ. of Med. and Dentistry, 213 N.J. 130, 146 (2013) (citing Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011)). Relief is provided through N.J.S.A. 59:8-9, which permits "[a]pplication to the court for permission to file a late notice of claim . . . 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." (Emphasis added).

"By its terms, the statute commits the authority to grant a plaintiff's motion for leave to file late notice 'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (alteration in original) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). The Legislature did not define what circumstances were "extraordinary," but rather, left that determination to be made on a case-by-case basis. Lowe v. Zarghami, 158 N.J. 606, 626 (1999).

Thus, "[t]rial courts, in exercising their statutory authority, and appellate courts, in reviewing those decisions, must ensure that their decisions are faithful to the overall legislative framework in order that the statute's essential purposes be preserved and not eroded through excessive or inappropriate exceptions." D.D., supra, 213 N.J. at 148-49. "Courts faced with applications for leave to file a late notice of claim, therefore, must proceed with their evaluation mindful of the Legislature's direction that the proofs demonstrate circumstances that are not merely sufficient, but that they instead be extraordinary." Id. at 149.

The importance of a plaintiff's diligent efforts to determine potential public entity tortfeasors was highlighted in Blank v. City of Elizabeth, 162 N.J. 150 (1999). There, the plaintiff, who did not speak English, tripped and fell on February 27, 1997, over a pipe protruding from a sidewalk abutting residential premises. Id. at 151. She served notice on the property owners' insurance carrier, who, in November, advised that the pipe was owned by the City of Elizabeth (Elizabeth). Id. at 152. The plaintiff then filed a motion to serve a late notice of claim on Elizabeth one month later, or roughly ten months after the accrual of her claim. Ibid.

The plaintiff's counsel conceded that that the so-called "'pipe' was in fact a round, metal shut-off valve protruding above the sidewalk that, on visual inspection, readily would have been identified as an appurtenance of a water supply system." Ibid. The Court concluded that "an inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants that were responsible for [the] installation and maintenance of the shut-off valve." Id. at 152-53. Under those circumstances, the plaintiff failed to demonstrate "extraordinary circumstances" justifying the late notice of claim. Id. at 153.

Plaintiff in this case contends that he reasonably identified the metal cover as one belonging to the State Department of Transportation, since it was embossed with the acronym "DOT." He claims, however, that "finger-pointing" by first the State, and then the JIF, misled him into believing he had served all necessary public entities. Only when the JIF disclaimed liability and noted the road was owned and maintained by defendant did plaintiff become aware of a potential claim against defendant.

We have said that "where discovering the identity of a responsible party is not thwarted by the original defendants, the issue becomes 'whether [the] plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor.'" Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533 (App. Div. 2010) (quoting Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008)). Here, neither the State nor the JIF did anything to thwart plaintiff's efforts.

The State disclaimed liability, stating only that plaintiff's claim was against "a local public entity." Of course, whether that is true or not remains to be seen, and the entry of Judge Currier's order does not bar plaintiff from proceeding with his claim against the State. Photographs in the record reveal that the metal cover clearly bore the embossed marking, "DOT," and that the concrete casing around the cover was raised significantly above the surrounding sidewalk. We pass no judgment on the ultimate merits of plaintiff's claim against the State; however, for our purposes, the State's response did not "mislead" plaintiff from further investigating potential responsible parties. After all, the letter from the State only averred that "a local public entity," which of course could mean defendant or the municipality, was responsible.

Likewise, plaintiff timely served the JIF with his notice of claim. The JIF's response denied liability based on the fact that defendant owned Oak Tree Road. Here too, we pass no judgment on whether defendant or the municipality was responsible for maintenance of the sidewalk that surrounds the metal cover. But again, for our purposes, the JIF's response did not thwart plaintiff's efforts to identify potential tortfeasors.

Most importantly, it is clear that the roadway was marked as a county road. The signage designated the road by number, and included the words "Middlesex County." Reasonable investigation would have readily revealed that defendant owned the road, regardless of its ultimate liability for the maintenance of the sidewalk adjacent to the raised metal cover.

In sum, we reject plaintiff's claim that the responses of the State or the JIF misled him into believing he had served all potentially liable public entities with the required notice under the TCA. Plaintiff failed to demonstrate "extraordinary circumstances" justifying the filing of a late notice of claim, and we find no mistaken exercise of Judge Currier's discretion in denying plaintiff's motion.

Affirmed.