Opinion
DOCKET NO. A-1285-15T2 DOCKET NO. A-2004-15T2
01-26-2017
MARY GRIFFITH, Plaintiff-Respondent, v. SOUTH JERSEY TRANSPORTATION AUTHORITY and STATE OF NEW JERSEY, Defendants-Appellants.
Ashley L. Costello, Deputy Attorney General, argued the cause for appellant State of New Jersey (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Costello, on the briefs). Michael S. Nagurka argued the cause for appellant South Jersey Transportation Authority (Gilmore & Monahan, attorneys; Mr. Nagurka, on the brief). Feeda R. Musitief argued the cause for respondent (Fine and Staud, LLC, attorney; Mr. Musitief, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Ostrer and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1957-15. Ashley L. Costello, Deputy Attorney General, argued the cause for appellant State of New Jersey (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Costello, on the briefs). Michael S. Nagurka argued the cause for appellant South Jersey Transportation Authority (Gilmore & Monahan, attorneys; Mr. Nagurka, on the brief). Feeda R. Musitief argued the cause for respondent (Fine and Staud, LLC, attorney; Mr. Musitief, on the brief). PER CURIAM
In these two appeals, which were argued back-to-back and consolidated for purposes of this opinion, defendants South Jersey Transportation Authority (SJTA) and State of New Jersey appeal November 6, 2015 Law Division orders granting plaintiff Mary Griffith's motion for leave to file late notices of claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Based on our review of the record in light of the applicable law, we reverse.
I.
The facts are not in dispute. Plaintiff alleges that on February 21, 2015, she slipped, fell, and was injured on ice after exiting her vehicle at a Sunoco gas station and Mini Mart located within the Frank S. Farley service plaza on the Atlantic City Expressway. On June 15, 2015, plaintiff retained counsel.
On June 25, 2015, plaintiff's counsel forwarded a letter to the State concerning plaintiff's alleged February 21, 2015 accident, and inquiring if the State was responsible for ice removal "at or near Sunoco at the rest area." On July 22, 2015, the State sent a letter to plaintiff's counsel acknowledging receipt of the "claim" and indicating that the incident occurred on the Atlantic City Expressway which was operated by SJTA.
On August 28, 2015, plaintiff filed a motion for leave to file late notices of claim against SJTA and the State under N.J.S.A. 59:8-9. In her affidavit supporting the motion, plaintiff asserted she was injured on the premises of the Sunoco gas station and Mini Mart, the attendant at the premises did not speak English or provide any guidance about the responsible parties, and there were no signs or markers indicating the gas station and Mini Mart were owned, operated, or possessed by the State or SJTA.
We do not make a finding concerning the ownership, operation, or possession of the gas station and Mini Mart. --------
Plaintiff averred that she was treated by multiple medical providers for her injuries following the accident but they were "generally noncommittal [about] the extent and severity of [her] injuries." Plaintiff stated that the "true extent" of her injuries was "realized" on June 8, 2015, after she underwent wrist surgery. She retained counsel on June 15, 2015, and "up to that point" she believed she had two years to file a lawsuit and was unaware of the TCA's notice requirements.
Plaintiff claimed she had no understanding of possible government ownership of the Sunoco gas station and Mini Mart and acknowledged she "took no action to attempt to research ownership or any other matters, on [her] own." She claimed she would suffer prejudice if she were not permitted to file late notices of claim because she sustained physical injuries and incurred expenses related to her treatment.
The State and SJTA separately opposed plaintiff's motion. The court heard oral argument and, in an oral opinion, reasoned that plaintiff demonstrated exceptional circumstances under N.J.S.A. 59:8-9 justifying the late filing of the notices. The court relied upon our Supreme Court's decisions in Lowe v. Zarghami, 158 N.J. 606 (1999), and Ventola v. New Jersey Veteran's Memorial Hospital, 164 N.J. 74 (2000), and concluded that, although there was no attempt to obscure the public ownership of the property upon which plaintiff allegedly fell, it was reasonable for plaintiff to rely on the fact that Sunoco was the putative tortfeasor. The court reasoned that under similar circumstances, the Court in Lowe and Ventola found extraordinary circumstances permitting the late filing of tort claim notices. The court also found the State and SJTA did not suffer any prejudice.
The court granted plaintiff's motion and entered separate orders permitting plaintiff to file late notices of claim against the State and SJTA. This appeal followed.
II.
The TCA requires that a notice of claim against a public entity be filed within ninety days after the accrual of a cause of action. N.J.S.A. 59:8-8. The notice requirement is intended to "'expedite [an] investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense.'" Escalante v. Twp. of Cinnaminson, Cinnaminson Mem'l Park, 283 N.J. Super. 244, 249 (App. Div. 1995) (quoting Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989)). If a claimant does not timely file a notice of claim, the claim is "forever barred." N.J.S.A. 59:8-8.
A notice of claim may be filed beyond the ninety-day time period if leave is obtained from the Superior Court "within one year after the accrual of [the] claim provided that the public entity . . . has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. The motion must be "supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for" the failure to file a timely notice of claim. Ibid.
To permit the late filing of a notice of claim, a court must find there are "sufficient reasons constituting extraordinary circumstances" for the failure to file the notice within the prescribed ninety days, and that the public entity will not be "substantially prejudiced" by the granting of the application. N.J.S.A. 59:8-9; see also Escalante, supra, 283 N.J. Super. at 249. The requirement that "extraordinary circumstances" be demonstrated was included as an amendment to the TCA in 1994 "in order to 'raise the bar for the filing of late notice from a "fairly permissive standard" to a "more demanding one."'" Beyer v. Sea Bright Borough, 440 N.J. Super. 424, 430 (App. Div. 2015) (quoting Beauchamp v. Amedio, 164 N.J. 111, 118 (2000)); see also D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 149-50 (2013). The 1994 amendment did not define the circumstances that are "'considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.'" Beyer, supra, 440 N.J. Super. at 430 (quoting Lowe, supra, 158 N.J. at 626); McDade v. Siazon, 208 N.J. 463, 477 (2011).
The decision to grant or deny leave to file a late notice of claim "is a matter left to the sound discretion of the trial court," Beyer, supra, 440 N.J. Super. at 429 (internal quotations and citation omitted), and will be "'sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (quoting Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)). Because the 1994 amendment imposed "a more exacting standard" for granting leave to file a late notice of claim, a court's discretion must be exercised in "the larger context of the clear legislative intent that the waiver of sovereign immunity be limited." D.D., supra, 213 N.J. at 148. In our review of a trial court's grant of leave to file a late notice of claim, we must be "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.
Defendants argue the court's decision constituted an abuse of discretion because the facts set forth in plaintiff's affidavit do not support a finding of extraordinary circumstances. Defendants contend the court's application of Ventola and Lowe constituted error because plaintiff failed to demonstrate she exercised reasonable diligence to determine the identity of the putative public entity tortfeasors. We agree.
The court read Lowe and Ventola too broadly to suggest that extraordinary circumstances are extant where the identity of the putative public entity tortfeasor is unclear or obscured. A determination of extraordinary circumstances, however, is not limited to a consideration of one factor, but instead requires that the court "consider a combination of factors." Lowe, supra, 158 N.J. at 629. Thus in Lowe, extraordinary circumstances were found because the plaintiff had no reason to know her allegedly negligent doctor was a public employee, she "complied with all of the requirements of a typical malpractice claim," and she "contacted an attorney and immediately pursued her rights." Id. at 629-30.
In Ventola, the Court found extraordinary circumstances where a patient allegedly injured by the negligence of the staff at a New Jersey Veterans Memorial Home timely served a notice of claim upon the United States Department of Veterans Affairs under the mistaken belief it was the owner of the home. Ventola, supra, 164 N.J. at 78-79. The Court found extraordinary circumstances in part because the identity of the New Jersey public entity that actually owned the home, the New Jersey State Department of Military and Veterans Affairs, was obscured because the dominant agency in the provision of veterans' services is the United States Department of Veterans Affairs. Id. at 82. The Court, however, also based its determination that plaintiffs established extraordinary circumstances by showing they "did not sleep on their rights" and were "diligent in prosecution of their claims." Ibid.
The Court has contrasted its holdings in Ventola and Lowe from those cases where, as here, "the identity of the correct defendant was readily discoverable within the ninety days that the statute allows but timely notice was not filed." D.D., supra, 213 N.J. at 153. In Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999), the Court found extraordinary circumstances did not exist where "an inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants . . . ."In Leidy v. County of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008), we held that extraordinary circumstances were not extant where "the record [was] barren of any reasonable efforts undertaken by plaintiff during the ninety-day period to ascertain ownership, control or operation" of the property at issue.
Thus, a determination of extraordinary circumstances requires more than a consideration of whether the identity of the putative tortfeasor was obscured. The court must "focus[] on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." McDade, supra, 208 N.J. at 477. "The existence of a reasonably prompt and thorough investigation is thus the crucial inquiry." Id. at 477-78.
Here, based on our careful review of plaintiff's affidavit in support of her motion for leave to file the late notice of claim, we are convinced plaintiff failed to demonstrate extraordinary circumstances. Plaintiff's affidavit acknowledges she had reason to question the identity of the owner of the property. It is not disputed that the service area within which plaintiff alleges the accident occurred was adjacent to, and accessible only via, a public toll road, the Atlantic City Expressway. She asserts the gas station attendant did not speak English and did not provide guidance concerning the responsible parties, suggesting she sought to obtain the identity of the responsible parties at the time of the alleged accident but was prevented from doing so by a language barrier and a lack of cooperation. The affidavit, however, does not disclose any additional effort to investigate or obtain the identity of the property owner within the ninety days following the accident.
The affidavit is devoid of any factual assertions demonstrating plaintiff exercised reasonable diligence to identify the owner of the property on which she allegedly fell. The record before the motion court supported the singular conclusion that plaintiff took no action whatsoever to identify the putative tortfeasors. She is therefore unlike the plaintiffs in Ventola and Lowe, and instead is like those in Bland and Leidy whose failure to exercise reasonable diligence did not permit a finding of extraordinary circumstances.
The record does not support a finding of extraordinary circumstances permitting the late filing of plaintiff's notice of claim. Even though the ownership of the property may not have been immediately apparent, plaintiff failed to exercise reasonable diligence to identify the alleged tortfeasors required to establish extraordinary circumstances. Because the record does not support the motion court's finding of extraordinary circumstances, we are constrained to conclude the motion court abused its discretion in granting plaintiff's motion. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (explaining an abuse of discretion arises when a decision is unsupported by a rational explanation, inexplicably departs from established policies, or rests on an impermissible basis).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION