JANET PALUMBO v. T.M.

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1301-17T3

JANET PALUMBO,
Administratrix Ad
Prosequendum for
HAILEY PALUMBO,

           Plaintiff-Respondent,

v.

T.M. (a minor) and STATE OF
NEW JERSEY,

           Defendants,

and

TOWNSHIP OF JACKSON, COUNTY
OF OCEAN, and TOWNSHIP OF
JACKSON MUNICIPAL
UTILITIES AUTHORITY,

     Defendants-Appellants.
___________________________________

                    Argued October 11, 2018 – Decided October 26, 2018

                    Before Judges Nugent and Mawla.
            On appeal from Superior Court of New Jersey, Law
            Division, Ocean County, Docket No. L-2677-17.

            Barry A. Stieber argued the cause for appellant
            Township of Jackson (Gilmore & Monahan, PA,
            attorneys; Barry A. Stieber, on the brief).

            Hiering, Gannon and McKenna, attorneys for appellant
            Jackson Township Municipal Utilities Authority, join
            in the brief of appellant Township of Jackson.

            Berry, Sahradnik, Kotzas & Benson, attorneys for
            appellant County of Ocean, join in the brief of appellant
            Township of Jackson.

            Ronald E. Prusek argued the cause for respondent
            (Carluccio, Leone, Dimon, Doyle & Sacks, LLC,
            attorneys; Ronald E. Prusek, of counsel; Peter M.
            Draper, on the brief).

PER CURIAM

      This appeal involves a fatal automobile accident and a mother's motion to

file a Notice of Late Claim under the New Jersey Tort Claims Act (TCA),

 N.J.S.A. 59:1-1 to 12-3. Despite plaintiff Janet Palumbo's persistent efforts to

obtain from the Township of Jackson and Ocean County Prosecutor's Office

their investigative reports of the single-car accident that resulted in her

daughter's death, those entities would not release the reports for more than

ninety days following the accident, for what appear to be well-grounded law

enforcement considerations in investigating a fatality.


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      Following the release of the investigative reports to plaintiff, she filed a

motion for permission to file a late notice of claim. Judge Arnold B. Goldman

granted plaintiff's motion. Defendant Township of Jackson appeals. Because

Judge Goldman acted well within his discretion in granting plaintiff's motion,

and because we find no merit in the Township's arguments to the contrary, we

affirm.

      Plaintiff's fifteen-year-old daughter, a passenger, died from injuries she

sustained on Saturday, May 22, 2017, in a single-car accident on Lakehurst

Avenue in Jackson Township. Plaintiff was required by the TCA, specifically

 N.J.S.A. 59:8-8, to file a notice of claim with the public entities within ninety

days, or by August 20, 2017. August 20, 2017 was a Saturday. Consequently,

as defendant concedes in its brief, plaintiff had until August 22, 2017, to timely

file the notice of claim. Thirty days beyond this deadline, on September 21,

2017, plaintiff filed a motion seeking permission to file a late claim. In a

supporting certification, she explained the delay.

      According to plaintiff, approximately one month after the accident, she

met with representatives of the Ocean County Prosecutor's Office and Jackson

Township Police Department and asked for a copy of the police report. The

"Juvenile Prosecutor" informed her the investigation was ongoing and she would


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receive a copy of the report when the investigation was complete. Plaintiff was

also informed the Ocean County Prosecutor's office "was having a motor vehicle

specialist come to examine the car and that the report would not be available

until after this examination was complete."

      Following the meeting, plaintiff made several telephone calls to the Ocean

County Prosecutor's office and asked whether the report was available. She

wanted the report, and her insurance company also wanted a copy. Plaintiff

averred that each time she spoke with the Prosecutor's Victim-Witness

Advocate, the Advocate told her the report was not finalized because the

investigation was ongoing and the report was being revised.

      On August 10, 2017, the Advocate told plaintiff the Prosecutor would only

release the report if plaintiff made the request in writing.      Following her

conversation with the Advocate, and as instructed by the Advocate, plaintiff sent

an email to the Advocate at the Prosecutor's Office, requesting a copy of the

report.

      On September 1, 2017, having heard nothing from the Prosecutor's Office

concerning completion of the report, plaintiff contacted the office again.

Plaintiff was advised she could pick up the report after the Labor Day Holiday.

She obtained the report from the Prosecutor's Office on September 5, 2017, and


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delivered it to her attorney the same day. Her attorney filed the motion seeking

permission to file the late claim on September 21, 2017.

      The police report was thorough and comprehensive.          It included an

eyewitness account of the accident. According to the eyewitness, the car that

crashed passed the car the eyewitness was driving, spun out of control in a large

puddle, and crashed into trees along the roadway. Significant to this appeal, the

report also contained this information:

            At the time of the crash there was copious amounts of
            rain water visible in the storm drains near the crash
            location. The storm drain just west of final rest for
            vehicle #1 was filled and water was unable to disperse
            appropriately causing the drain to fill up and overflow
            into the roadway.

The police officer who made this entry reported: "I observed the water causing

a flood condition across both lanes of travel for Lakehurst Avenue just prior to

the crash location as I arrived [at] the scene."

      Plaintiff attested that she was not an attorney and was unaware of the

TCA's ninety-day deadline for filing a notice of claim. She also explained:

            Even if I was aware of this requirement, I would not
            have been able to file in time because the investigation
            report was not available for me to review and bring to
            my attorney's attention. Until my attorney was able to
            review the report, there was no way of knowing
            whether I had any potential claims against any public
            entities.

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      Plaintiff's attorney confirmed the facts relayed by plaintiff in her

certification. Additionally, the attorney submitted,

             the [d]efendants are fully aware of the incident as it was
             investigated both by the Jackson Township Police
             Department and Ocean County Prosecutor's Office.
             Moreover, although [plaintiff] made it clear to
             investigators that she needed a copy of the report for
             her civil claim, this report was not made available to
             her until September 5, 2017, as evidenced by the
             accompanying letter from the Ocean County
             Prosecutor's Office.

The attorney included as an exhibit the letter from the Prosecutor's Office

releasing the report to plaintiff.

      Based on the evidence in the motion record, Judge Goldman found that

before receiving the police report, plaintiff could not have reasonably learned

that the storm drain had filled up and caused a flood condition across both travel

lanes for Lakehurst Avenue. The judge also found that plaintiff could not have

known the public entities might have some responsibility for the accident until

she received the police report. Consequently, he determined her cause of action

against the public entities did not accrue until the date she received the report

on September 5, 2017. For these reasons, the judge granted plaintiff's motion.

      We affirm, substantially for the reasons expressed by Judge Goldman.

We add some brief comments.


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      The TCA circumscribes claims against public entities such as Jackson

Township. "A claim relating to a cause of action for death or for injury or

damage to person or to property shall be presented . . . not later than the

[ninetieth] day after accrual of the cause of action."           N.J.S.A. 59:8-8.

"Generally, in a case of tortious conduct resulting in injury, the date of accrual

will be the date of the incident on which the negligent act or omission took

place." Beauchamp v. Amedio,  164 N.J. 111, 117 (2000). An exception exists

in cases "where 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. As

the trial court found here, plaintiff could not have reasonably discovered the

problem with the drainage, which caused the flooding, until she received t he

police report.

      Regardless of when a cause of action accrues, a claimant may, within one

year after accrual of a claim, seek judicial permission to file a late notice of

claim, provided the public entity "has not been substantially prejudiced."

 N.J.S.A. 59:8-9.

            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 [the] failure to file [a]
            notice of claim within the period of time prescribed by

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             section 59:8-8 . . . or to file a motion seeking leave to
             file a late notice of claim within a reasonable time
             thereafter[.]

             [Ibid.]

       Here, even if plaintiff's cause of action had accrued on the date of the

accident, plaintiff demonstrated extraordinary circumstances.          Despite her

repeated efforts to obtain a copy of the police report, she was unable to do so

until more than ninety days after the accident occurred. Significantly, the reason

she could not obtain the report is the authorities would not release it to her until

they completed their investigation, a position perfectly understandable given the

fatality. Plaintiff's delay in filing a late notice was thus occasioned by the time

authorities took to conduct a thorough and comprehensive investigation of a

fatality.   She was unable to determine within ninety days, without the

investigative reports, that drainage problems and flooding may have contributed

to the accident. These circumstances were not ordinary, but extraordinary, thus

warranting Judge Goldman's exercise of discretion.

       We reject the Township's claim that it was somehow prejudiced by the

late filing of the TCA notice of claim. The Township's police department

conducted a thorough investigation into the accident, as did the County

Prosecutor's Office. As we have repeatedly noted, the report released to plaintiff


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is a thorough, comprehensive investigation that negates any suggestion of

prejudice by the Township. The Township's arguments to the contrary are

without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




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