SAMANTHA JAMES v. SUSSEX COUNTY JAIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SAMANTHA JAMES,

Plaintiff-Respondent/

Cross-Respondent,

v.

SUSSEX COUNTY JAIL, SUSSEX

COUNTY SHERIFF'S OFFICE,

COUNTY OF SUSSEX,

Defendants-Cross-Appellants,

and

STATE OF NEW JERSEY,

Defendant-Appellant.

November 24, 2015

Submitted October 15, 2015 Decided

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-280-14.

John J. Hoffman, Acting Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeffrey S. Widmayer, Deputy Attorney General, on the briefs).

Gebhardt & Kiefer, PC, attorneys for cross-appellants (Tracy B. Bussel, on the briefs).

Garber Law, attorneys for respondent/cross-respondent (Paul D. Santangini, on the brief).

PER CURIAM

Defendants the Sussex County Jail, Sussex County Sheriff's Office, County of Sussex (County defendants), and the State of New Jersey appeal from a July 25, 2014 Law Division order granting plaintiff Samantha James's motion to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. For the reasons that follow, we reverse.

Rule 1:6-6 states unequivocally that when a motion, such as the one made in this case, "is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ." An affidavit from counsel, such as the one which accompanied the motion in this case, reiterating facts related to them by the client, constitutes inadmissible hearsay. See Jameson v. Great Atlantic, 363 N.J. Super. 419, 427 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

Moreover, N.J.S.A. 59:8-9 states that applications to the court for leave to file a late notice of claim "shall be made upon motion supported by affidavits based upon personal knowledge of the affiant . . . ." We have previously observed that affidavits of counsel, containing objectionable hearsay, simply do not satisfy the statutory requirements. See S.P. v. Collier High School, 319 N.J. Super. 452, 465 (App. Div. 1999). Contrary to rule and statute, the source for the facts argued in support of James's motion was her attorney's affidavit. In it he claimed James injured her wrist on December 18, 2013, while in the custody of the Sussex County Jail. Counsel further asserted that as a result of that facility's negligent failure to timely return her to the hospital for proper medical care, her wrist had to be rebroken, requiring surgery, and "the implantation of a plate and seven (7) screws to repair the fracture to her right wrist." Because James was in custody in New Jersey, he alleged, she failed to appear for a hearing in Pennsylvania and as a result, she was transferred to a jail in that state. James was released on March 3, 2014, but did not "retain" legal counsel until April 8, 2014.

Counsel's affidavit contended that but for defendants' failure to provide James with adequate medical care, she would have healed without surgery. He concluded that defendants' failure to provide her with such care caused her delay in filing any claim because she "was unable to write, type, or otherwise complete any forms required to file a tort claims notice."

Adding to the procedural irregularity i.e. the failure to adhere to the requirements of either the statute or the rule during oral argument before the trial court, James's counsel described for the first time the manner in which the injury allegedly occurred. Notably absent from the record we have on appeal is an affidavit or certification regarding those circumstances.

James's attorney argued to the Law Division judge that while James was incarcerated in Pennsylvania, she was "not exactly nearby a whole lot of people that [were] able to provide any assistance" in filing the claim. When the judge granted the application, he said only the following

Okay. Well, I've read the moving papers, I am satisfied that there [are] sufficient facts here to grant the relief. It's only been a short time since the actual injury occurred, it's within a year, and I'm satisfied here that there are exceptional circumstances here in view of her -- the plaintiff's continuous incarceration while that [ninety] day period was running.

I'm satisfied that there is no prejudice to any defendant as a result of this application being granted. The facts here seem largely dependent on whether -- on what records exist, the records are in the files and custody of those entities that may be involved here.

With regard to the State of New Jersey, it does appear that that is a rather weak and tenuous claim, but at this posture, the only thing I'm called to rule upon is whether the notice of tort claims should be permitted. Any applications that are made thereafter will be dealt with independently.

So I'll grant the application and I'll give you copies of the order.

On appeal, all defendants argue that the trial judge abused his discretion in granting James's motion because she did not establish the "extraordinary circumstances" that legally warrant an extension of time, and that he erred by relying on her attorney's affidavit. The State separately argues that the motion should have been denied because there was no factual basis whatsoever for imposing liability.1

James responds that reliance upon a certification of counsel complies "with the spirit of [N.J.S.A. 59:8-9], if not the rule itself, and that defendants' hypertechnical reading . . . is misleading." Furthermore, without any record reference, James's brief maintains that once she was incarcerated in Pennsylvania she was not able to contact others who might have assisted her. She claims the incarceration outof-state established extraordinary circumstances and that defendants suffered no prejudice as a result of the late filing because the lapse in time was so brief.

As a jurisdictional prerequisite to filing suit against a public entity or public employee, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, requires a claimant to file a notice of claim in accordance with statutory procedures. N.J.S.A. 59:8-3. The process includes the filing of the claim within ninety days of accrual. N.J.S.A. 59:8-8.

N.J.S.A. 59:8-9 authorizes the filing of a late claim beyond the ninety days, but within one year, "in the discretion of a judge of the Superior Court" when "sufficient reasons constituting extraordinary circumstances" are established. No late filing shall be permitted, however, if the public entity or employee would be "substantially prejudiced thereby." We do not address the statute's second requirement that prejudice not result from the grant of leave to file a late notice of claim as James cannot establish the first requirement, that the circumstances that caused her delay were "extraordinary."

Whether an injury rises to the level of "extraordinary circumstances" exempting a claimant from the ninety-day timeframe requires the judge deciding the application to analyze the "severity of a medical condition and the consequential impact on the claimant's very ability to pursue redress and attend to the filing of a claim." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 150 (2013). The intent of the statutory enactment "was to create a more exacting standard than the one the courts had used" previously. Id. at 148 (referring to the 1994 amendments which made the standard for late filing more stringent).

Counsel's affidavit stated only that James could not write because her right wrist was broken and she was thus unable to file a claim. Even if unrefuted, James's injury does not satisfy the requirement that the medical condition which allegedly resulted in the late filing be "severe or debilitating." Id. at 149.

This injury was obviously not of that nature. Nor was there any explanation offered as to the reason James could not have orally communicated with family, friends, or counsel. Therefore the reason initially proffered fails to meet the legal standard.

Furthermore, a judge's analysis of extraordinary circumstances is a demanding one, see Lowe v. Zarghami, 158 N.J. 606, 629-30 (1999), and yet the analysis in this case was abbreviated, perhaps due to the scant information provided. It was not enough for the judge in this case to merely recite the fact that James was continuously incarcerated.

The Law Division judge's assumption that James's continuous incarceration during the ninety-day period excused her silence was unexplained and unsupported by the record. Additionally, aside from her incarceration and broken wrist, James does not explain the approximately six weeks between the time she was allegedly released from jail and her engagement of counsel.

We defer to a trial court's exercise of discretion unless it results in a misapplication of the law. In those instances, the decision will be set aside to avoid a manifest injustice. Haven Sav. Bank v. Zanolini, 416 N.J. Super. 151, 161 (App. Div. 2010). Here, the judge misapplied the statutory definition of "extraordinary circumstances." To allow the late filing would result in a manifest injustice to defendants, who enjoy the legislative protection afforded them by the TCA.

Reversed.

1 In response to this argument, in her brief James raises for the first time the claim that the State was potentially liable as a result of flawed jail staff training. We do not reach this point as we find that James did not establish extraordinary circumstances.