SHARON MAXWELL v. VICTOR J. OYOLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SHARON MAXWELL,

Plaintiff-Appellant,

v.

VICTOR J. OYOLA and

CIRDA'S SUPERMARKET,

Defendants,

and

CITY OF VINELAND,

Defendant-Respondent.

_________________________________

November 25, 2014

Argued July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-113-11.

Jordan R. Irwin argued the cause for appellant (Begelman, Orlow & Melletz, attorneys; Mr. Irwin, on the briefs).

Michael E. Benson argued the cause for respondent (Buonadonna & Benson, P.C., attorneys; Mr. Benson, on the brief).

PER CURIAM

Plaintiff Sharon Maxwell appeals from an order for summary judgment dismissing her complaint against defendant City of Vineland on statute of limitations grounds. Because we conclude the matter was not ripe for summary judgment, we reverse.

Maxwell was injured when she tripped on a broken curb in front of Cirda's Supermarket in Vineland. Her counsel served a timely tort claim notice on the City as well as an additional notice the City required. Three weeks after filing plaintiff's tort claims notice, her counsel received a letter from PMA Management Corp. "on behalf of [its] client the City of Vineland" in response to the claim. The letter advised that PMA "has been completing an investigation" into the claim and "determined that the City of Vineland does have defenses under title '59.'" The letter went on to quote the statute regarding dangerous conditions of public property and the definition of injury. It closed with the following

Our investigation reveals that the City of Vineland was never notified of a dangerous condition in the area of 318 N 7th St. Further, we have confirmed that the property owner is responsible for the sidewalks and curbs abutting their property. The City of Vineland has adopted ordinance 413 which clearly places the responsibility on the land owner. We have determined that this property is owned and maintained by Victor Jose Oyola, [address].

At this time we must advise that there is no liability on behalf of the City of Vineland. We are sorry our investigation could not have been more favorable.

More than eighteen months later and just days before the running of the statute of limitations, plaintiff filed suit against Cirda's Supermarket, Oyola and John Does. Plaintiff's counsel has certified that, based on the "unequivocal assertion" in PMA's letter that "the City of Vineland was not responsible in any way for the repair of the curb where [p]laintiff fell," he determined that he had "no valid basis to name the city as a defendant when the complaint was initially filed."

When plaintiff deposed Oyola during discovery, he testified that he repaired the sidewalk in front of the supermarket at his insurance company's insistence about six months before plaintiff's accident. He claimed that his insurer wanted him to repair the curb as well, but the City refused to allow him to do so. Specifically, Oyola testified that the City told him "'You cannot touch [the curb]. That belongs to the City.' Then the Mayor came and looked at it and told them that the City was able to take care of it."

Following the deposition, plaintiff successfully moved to amend her complaint to identify the City as a previously described John Doe defendant. Shortly after service of the amended complaint and before allowing any discovery, the City moved for summary judgment on the ground that the claim was barred by the statute of limitations. The Law Division judge rejected plaintiff's argument that the City had misled her into believing it had no responsibility for the curb on which plaintiff tripped. Reasoning that "[t]he determination of potential liability rests on the [p]laintiff regardless of any denial of liability by either the [m]unicipality itself, their [c]laims [a]djusters, their insurance company, their GIF [f]und or otherwise," the judge granted the City's motion dismissing the amended complaint as untimely. This appeal followed.

Summary judgment is only appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider whether the evidence on the material issues is genuinely disputed or "'whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 446 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

Here, there is no question that the complaint naming the City was filed after the expiration of the statute of limitations. The dispute is over why plaintiff, who timely served a tort claims notice and filed her complaint against the other defendants in a timely fashion, did not timely sue the City. The City argues that "[i]nstead of performing her own investigation and/or research concerning the relative responsibilities for curbs abutting commercial properties, plaintiff, through her attorneys, relied solely on the assertion contained in the denial of liability that the curb was subject to Vineland's Sidewalk Ordinance." It urges us to take judicial notice "that insurance companies routinely deny liability for an accident" and that because "it is something that is, and should be expected" plaintiff's reliance on its agent's letter was unreasonable. Plaintiff agrees that she relied on PMA's letter, but insists that she acted reasonably in doing so, and that the City should not profit from its affirmative misrepresentation of the facts surrounding its responsibility for the curb on which she tripped.

We have recently observed that "[f]or almost a half-century, our State's public policy jurisprudence has expressly insisted that governmental agents and units of government observe certain standards and norms particularly during litigation that are beyond reproach." CBS Outdoor v. Lebanon Planning Bd., 414 N.J. Super. 563, 585-86 (App. Div. 2010). As the Supreme Court has observed in a variety of contexts, "[i]n dealing with the public, government must 'turn square corners.'" F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985) (quoting Gruber v. Mayor and Twp. Comm., 73 N.J. Super. 120, 127 (App. Div.), aff d, 39 N.J. 1 (1962)). We therefore reject the City's cavalier assertion that its citizens should expect its agents to engage in misrepresentation in order to avoid liability under the Tort Claims Act.

We conclude it is premature to decide whether plaintiff can pursue her suit against the City as she has not been provided the opportunity of discovery into the issues surrounding PMA's letter to plaintiff's counsel in response to her tort claims notice. Although "[e]quitable estoppel is 'rarely invoked against a governmental entity,'" Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)), we will not hesitate to deploy it in an appropriate case in order to prevent "manifest wrong and injustice," Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954), as it is an apt means of ensuring that government and its actors "turn square corners" and act fairly and "with compunction and integrity." W.V. Pangborne & Co. v. N.J. Dep't of Transp. 116 N.J. 543, 561-62 (1989) (quoting F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 426-27 (1985)).

"Equitable estoppel has been used to prevent a defendant from asserting the statute of limitations when the defendant engages in conduct calculated to mislead plaintiff into believing that it is unnecessary to seek civil redress." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 589 (1993). In order to succeed on her claim, plaintiff will have to show that Vineland, through its agent PMA, "'engaged in conduct, either intentionally or under circumstances that induced reliance, and that [plaintiff] acted or changed [her] position to [her] detriment.'" Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 20 (2006) (quoting Knorr v. Smeal, 178 N.J. 169, 178 (2003)). Plaintiff is entitled to discovery on that claim. Although Vineland may succeed in demonstrating that PMA's statements were accurate or, if inaccurate, that plaintiff unreasonably relied thereon, it was not entitled to summary judgment at this stage of the proceedings.

Reversed.