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Minor’s Parent’s Portee Claim Against Public Entity Tolled For The Duration Of The Minor’s Tolling Period

On November 15, 2019, plaintiff Angela Tennant and her minor son, Micah Dunmore, were attending a high school football game when an individual fired a gun into the stands, striking and injuring Micah.  Angela was a witness to the events and, tragically, Micah died from his injuries five days later.  Ninety-one days after the shooting and eighty-six days after Micah’s death, his Estate, his mother Angela and other family members sent a notice of tort claims to the defendant Board of Education, asserting wrongful death and survivor claims.  Additionally, the minor’s mother, Angela, asserted a claim for negligent infliction of emotional distress under Portee v. Jaffee for her injuries allegedly suffered in witnessing the shooting of her son.  The issue in the published Appellate Division Estate of Dunmore case (2022 N.J. Super. LEXIS 7 (App. Div. Jan. 20, 2022)) was whether the tort claims notices were timely filed.

This matter arose, as a result of the Estate filing a motion seeking a declaratory judgment that the tort claims notice was timely filed.  The Board conceded that the wrongful death claims did not accrue until Micah died on November 20, 2019.  Thus, the tort claims notice filed by the Estate and the family members as beneficiaries of the Estate was timely filed.

However, the issue was whether the tort claims notice for Angela’s emotional distress claim under Portee was timely filed.  At the trial court level, the judge deemed Angela’s claim timely filed, indicating that the tort claims notice of February 14, 2020 was filed within ninety days or within three months of the date of the accrual of the cause of action.  The Board appealed that decision, pointing out that Angela’s tort claim was filed actually ninety-one days after the shooting.

The Appellate Division found that the tort claims notice was timely filed, but for different reasons than expressed by the trial court.  First, the Appellate Division noted that the 90 day deadline to file a tort claims act notice under N.J.S.A. 59:8-8 is not equivalent to three months.  The ninety day deadline is specific under the statute and “[t]here is no doubt that when the Legislature said ninety days it meant ninety days and not three months.”

Angela’s Portee claim accrued on the day of the shooting.  Hence, the Board argued that filing her tort claims notice ninety-one days after the shooting meant it was filed late.

In response, Angela argued that because Micah’s time to file a notice of tort claim and complaint was tolled under N.J.S.A. 59:8-8, the time to file her Portee claim should also be tolled for the same period of time.  She relied on the tolling period accorded to a parent’s claim under the statute of limitations provision in N.J.S.A. 2A:14-2.1.

The Appellate Division noted that the time to file a negligence action is governed by the two year statute of limitations set forth in N.J.S.A. 2A:14-2.  However, N.J.S.A. 2A:14-2.1 permits an exception for a parent filing a claim for damages suffered by him because of an injury to a minor child.  In such a situation, the statute extends the time period of a parent to file a claim to the same period of time as provided by law in the case of a minor child so injured. This statutory provision preserves the parent’s claim until the child brings their claim.

Here, the wrongful death claims of the minor did not accrue until Micah died on November 20, 2019.  Thus, his Estate had ninety days from November 20, 2019 to file a tort claims notice and two years from that same date to file a lawsuit.

Thus, under the statute of limitations provision in N.J.S.A. 2A:14-2.1, the time for Angela to file her own lawsuit for her individual claims of emotional distress (under Portee) was also tolled until the Estate instituted suit.

The Court noted, however, that N.J.S.A. 59:8-8 was silent as to whether Angela’s ninety day deadline to file a tort claims notice for her Portee claim, arising from her witnessing of the shooting and injury to Micah, was also tolled.

Under prior case law, it had been established that the “savings provision” under N.J.S.A. 59:8-8 tolls the requirement for a minor to file a tort claims notice until ninety days after the minor’s 18th birthday.  The Appellate Division noted that there was no precedent squarely on point stating N.J.S.A. 59:8-8 also permits the tolling of a parent’s Portee claim.

The Court found that if a parent’s Portee claim arising out of their child’s injury was not also tolled, “it would result in the absurd situation that the parent’s cause of action would likely be brought before a judge and a jury for trial, perhaps years or decades before the child’s lawsuit was initiated.”  The Appellate Division noted that this result would run “contrary to the principles underlying the entire controversy doctrine and promoting judicial economy.”

Thus, the Appellate Division found that the time to file a notice of tort claim must also be consistent concerning a parent and a child.  The Court held that if a minor’s time to file a notice is tolled under N.J.S.A. 59:8-8 and a parent’s time to file a lawsuit regarding their claims is tolled as long as the child’s claim is tolled, “then the time for a parent to file a tort claims notice must also be tolled.”  In considering the two pertinent statutes, the Appellate Division concluded that “the tolling of a notice of tort claim must also be extended for a parent’s Portee claim to promote uniformity and predictability.”

Finally, the Appellate Division noted that Micah’s time to file a notice of tort claim was tolled until he died on November 20, 2019.  Thus, his mother Angela’s emotional distress Portee claim was also tolled until that date.  She filed a notice of tort claim eighty-six days later, which meant that her notice was timely filed under N.J.S.A. 59:8-8 and, hence, she would be permitted to pursue her claim.

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Court Finds City Not Liable For Plaintiff’s Injury Suffered From Stepping Into Pothole

Plaintiff Giani Petty broke her ankle when she stepped into a pothole on a residential street in Newark.  The plaintiff sued the City of Newark for her injuries suffered as a result of the fall. The issue in Petty v. City of Newark, 2021 N.J. Super. Unpub. LEXIS 3122 (App. Div. Dec. 20, 2021) was whether the City was immune under the allocation of resources defense found in the Tort Claims Act.

In defending the case, the City relied upon the immunity found in N.J.S.A. 59:2-3(d) “which affords discretion to municipalities to allocate limited resources – in this instance, the resources available to identify and repair potholes.”  The trial court found that this immunity did apply and further it found that the plaintiff “did not demonstrate that the City’s failure to repair the pothole she stepped in was palpably unreasonable.”

The Appellate Division agreed with the trial court that “the City’s decision to repair potholes within limits of its budgetary allocation for street maintenance was not palpably unreasonable.”  The City was able to present evidence that the Mayor and council approved an annual budget that allocated resources for street maintenance.  Additionally, the discovery included the deposition of the Supervisor of street repairs who explained the process by which the City identified potholes and prioritized repair efforts using available resources.  The City’s asphalt crew and Supervisor exercised their discretion by submitting daily pothole repair reports that detailed their plan each day to identify and fix potholes.

The Appellate Division noted that the Tort Claims Act provides immunity to a public entity which “is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a Court concludes that the determination of the public entity was palpably unreasonable.”

Here, the Court noted that the City did exercise its discretion in choosing which potholes to fix on a given day from “the large universe of potholes” that form on its streets.  The Appellate Division noted that there was nothing in the record which supported the plaintiff’s argument that the City’s exercise of discretion was palpably unreasonable for failing to fix this particular pothole that the plaintiff stepped in.

As an example, the record did not show that the City received complaints regarding that specific pothole.  The Appellate Division noted that the City’s efforts to “prioritize the remediation of potholes” was not perfect but it was not so “palpably unreasonable” as to defeat its entitlement to tort claims immunity under N.J.S.A. 59:2-3(d).   Thus, the Appellate Division agreed that the City enjoyed immunity under this statutory provision and affirmed the dismissal of the plaintiff’s complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Neither Wawa, Nor The State Held Liable For Accidents That Occurred Due To Drivers Making An Illegal Left Turn Into A Wawa Driveway

In a published decision, the Appellate Division considered appeals from two cases involving motor vehicle accidents that occurred about one year apart at about the same location under similar circumstances.  In both cases, a driver traveling westbound on Route 322 in Folsom, New Jersey made an illegal left turn in the direction of one of two driveway entrances to a Wawa and struck a motorcycle traveling eastbound on the highway.  The issue in Buddy v. Knapp, 2021 N.J. Super. LEXIS 111 (App. Div. Aug. 17, 2021) was whether Wawa, as the operator of the convenience store in which the motor vehicles were attempting to turn, and the State of New Jersey, which owned the highway and the land on which the driveway entrances were situated could be found negligent for these two motor vehicle accidents.

In the first accident, the motorcycle driver was killed and his wife, a passenger, was seriously injured.  In the second accident, the motorcycle driver was seriously injured.  In both cases, the injured parties and the Estate of the decedent sued the Wawa, as the owner of the store, and the State of New Jersey, as the owner of the highway and land on which the store’s driveway entrances were situated.

Wawa owned and operated the convenience store on Route 322, also known as the Black Horse Pike, in Folsom at the intersection of Cains Mill Road.  That intersection was controlled by a traffic light.  At the location of the store, Route 322 is a four lane State highway, with two eastbound and two westbound lanes which are separated by two sets of solid double yellow lines.

The store was located on the eastbound side of the highway and was east of the intersection.  The store had two driveway entrances into its lot on the eastbound side of the highway.  It was illegal for the westbound vehicles to make a left turn and cross the double yellow lines and the eastbound lanes to access Wawa’s driveways.

On the other side of the highway, a vehicle traveling westbound would encounter the entrance to a jug handle.  That jug handle would allow vehicles to access the Cains Mill Road intersection with Route 322 and, when the light permitted, to cross Route 322, turn eastbound on the highway, where a few car lengths from the intersection, the driver could access the Wawa driveway entrances.  At the time of the collision, there was a sign on the westbound side of Route 322, east of the Wawa and near the entrance to the jug handle stating, “ALL TURNS FROM RIGHT LANE.”  This sign was intended to prevent left turns across the highway at and before the intersection with Cains Mill Road.

The Wawa driveway entrances were constructed years ago and were in the State’s right of way.  They were considered to have been constructed in accordance with DOT regulations.  Wawa was not authorized to modify the driveway entrances or place any signage regulating traffic unless it had permission from the State.

In both of these cases, a motor vehicle driver attempted to make an illegal left turn from the westbound lanes of the highway into one of the Wawa driveway entrances.  In both occasions, as they were crossing the eastbound lanes, they crashed into a motorcycle, traveling eastbound, causing the collision and the resulting fatality and/or injuries of the motorcycle occupants.

The plaintiffs sued both Wawa and the State as defendants. The claim against Wawa was that it was negligent in creating unsafe driveway entrances to its parking lot and in failing to maintain the premises in the safe condition for its invitees.  Further, the plaintiffs claimed that Wawa knew or should have known that its driveway entrances attracted illegal left turns from Route 322 and it should have redesigned its parking lot entrances to discourage left turns, notify the State of the dangerous conditions and/or warned its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.

As for the State, the plaintiffs allege that it was negligent in creating an unsafe condition by failing to properly maintain the roadway in a safe condition and “to exercise proper control, supervision, maintenance, repair, and general safe keeping of the roadway, despite the fact that it knew or should have known that a dangerous condition existed in the roadway and in its right-of-way.”

At the trial court level, the court granted summary judgment to both defendants.  It rejected plaintiffs’ argument that Wawa violated a duty of care to plaintiffs.  It found that the acts of the drivers of the motor vehicles, which were the causes of the accidents, and the collisions, happened in the eastbound lanes of Route 322 and not on Wawa’s property.  It noted the longstanding precedent “that a commercial landowner has no duty to regulate or control the conditions of property it does not own.”  Thus, the court found that Wawa did not owe a duty to plaintiffs related to the accidents.

Further, the court noted that, in limited circumstances, a commercial landowner’s duty to protect its invitees could extend beyond its premises for activities for which it directly benefits.  It was reasonable to conclude that Wawa could have received an economic benefit for drivers accessing its parking lot by making an illegal left turn from the highway, but the court concluded “that westbound drivers were provided a safe path to enter the parking lot through the jug handle, relieving Wawa of any duty to take steps to prevent illegal left turns into its driveway entrances.”  Further, the court found that even if the driveway entrances were dangerous conditions of State property, Wawa had no legal duty to report these conditions to governmental entities who would have the authority to remedy them.

As for the State, the trial court concluded that the State was “absolutely immune from liability pursuant to N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations, and N.J.S.A. 59:2-5 for permitting decisions concerning the driveway entrances, and N.J.S.A. 59:2-6 for its failure to inspect the driveway entrances.”  The court found that the placement of the driveways did not constitute a dangerous condition because if drivers exercise due care, the subject accidents would not be reasonably foreseeable.  The court noted that Route 322 was divided by a double solid yellow line prohibiting left hand turns into the subject driveways.  Further, the court found that illegally crossing the highway to make the left hand turn was not exercising due care.

This appeal ensued.  First, the Appellate Division addressed the claim against Wawa.  The court agreed that Wawa did not owe a duty to plaintiffs because their injuries did not occur on Wawa’s premises.  The drivers of the motor vehicles that collided with plaintiff’s motorcycles were in the eastbound lanes of Route 322.  Although they were headed in the direction of an entrance to the Wawa parking lot, they initiated their illegal left turns on State property and caused injuries to plaintiffs before reaching Wawa’s property.

With respect to the argument that a premises owner may owe a duty of care for an injury off premises, if the source of the injury was a dangerous condition on the premises, the Court also rejected that argument.  The Appellate Division found that Wawa did not have a duty of care to prevent the illegal acts of the two motor vehicle drivers on State property.  It neither owned nor had control over the eastbound lanes of Route 322, where the other drivers attempted to execute their illegal turns and collided with the plaintiffs’ motorcycles.  Further, the Appellate Division noted that the driveway entrances, which plaintiffs allege to be a dangerous condition, were not on Wawa’s premises.  Rather, they were situated in the State’s right-of-way and were subject to its sole control.

The Appellate Division also rejected the argument that Wawa had a duty to change its parking lot design or report to the State the need to alter or close the driveway entrances.  That would “amount to an expansion of a duty to all commercial landowners along a State highway to prevent motor vehicle violations by potential customers and ameliorate the effects of those violations.”

Further, the Appellate Division rejected the argument that Wawa breached its duty to warm its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.  The Court noted that it was not clear how such a warning would be delivered to drivers who had not yet reached the store.  Further, the Appellate Division declined “to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross the two lanes of opposing traffic on a highway with a 55 mile-per-hour speed limit.”

Next, the Appellate Division turned towards the plaintiffs’ claim against the State of New Jersey. It considered the statutory immunities in the Tort Claims Act that were addressed by the trial court.  First, there was N.J.S.A. 59:2-4 in which “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.”  The plaintiffs had alleged that it was the State’s alleged inaction in enforcing its regulations related to access violations from public roadways by failing to close the Wawa driveway entrances or otherwise preventing motorists from making illegal left turns to access the parking lot which caused the accident.  The plaintiffs’ claim related to the State’s alleged omissions, rather than an affirmative act.  Thus, the Appellate Division agreed with the trial court’s conclusion that enforcement immunity under N.J.S.A. 59:2-4 applied.  Thus, the State cannot be held liable for damages for its alleged failure to apply existing or past regulatory requirements to Wawa’s driveway entrances.

The Appellate Division also agreed that the State was not subject to liability for this alleged dangerous condition because a dangerous condition is defined as “a condition of property that causes a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it would be used.”  Here, the trial court had concluded that the absence of due care by the two motor vehicle drivers when using the driveway entrances was determinative of whether the dangerous condition exception applies.  As the Supreme Court pointed out in the prior decision of Garrison v. Township of Middletown, if a public entity’s property is dangerous only when used without due care, the property is not in a “dangerous condition.”  Whether a member of the public acted with due care on public property would depend upon whether the property was used in a reasonably foreseeable manner.

The Appellate Division supported the trial court’s conclusion that the driveway entrances did not post a substantial risk of injury when used with due care in a matter in which it was reasonably foreseeable that it would be used.  The driveway entrances were not intended to be used for illegal left turns by westbound drivers on Route 322.  The Court pointed out that “[b]reaking the law by crossing two sets of yellow lines to cross two lanes of opposing highway traffic to access the driveway entrances is not the exercise of due care.”  The Appellate Division noted this risk of danger created by such a highly dangerous maneuver was “objectively unreasonable and inconsistent with the intended use of the driveway entrances, which are designed to permit eastbound motorists to enter the Wawa parking lot.”

Hence, the Appellate Division affirmed these summary judgment orders granted by the trial court to the State and to Wawa.  The Appellate Division recognized the “tragic nature” of these accidents caused by “law-breaking drivers,” but it noted that it could “discern no legal basis to impose liability on the defendants.”

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Plaintiff’s Failure To Serve Public Entity At Correct Place Of Business With Timely Notice Of Tort Claim Bars Plaintiff’s Personal Injury Claim

The plaintiff Lyndsey Patton was walking in or near the intersection of Union Avenue and West Side Avenue in Jersey City when she was struck by a vehicle owned by defendant Jersey City Municipal Utilities Authority (“JCMUA”).  The accident occurred on June 30, 2019.  On or about September 10, 2019, the plaintiff’s attorney sent a notice of tort claim addressed to JCMUA, but sent it to City Hall on Grove Street instead of JCMUA’s place of business on Route 440 in Jersey City.  Plaintiff later successfully obtained leave from the trial court to file a late notice of claim on JMCUA, which determination was appealed.  The issue on appeal in Patton v. Wiley, 2021 N.J. Super. Unpub. LEXIS 1400 (App. Div. July 7, 2021) was whether the plaintiff had demonstrated the “extraordinary circumstances” under the Tort Claims Act to allow a late filing of a notice of claim.

Pursuant to N.J.S.A. 59:8-8, a party pursuing a cause of action against a public entity under the Tort Claims Act must file a notice of claim within ninety days of accrual of the claim or else be forever barred from recovering from the public entity.  However, a court may exercise the discretion permitted by N.J.S.A. 59:8-9 to allow a late filing “provided that the public entity or a public employee has not been substantially prejudiced” by the delay and also provided that the plaintiff presents “sufficient reasons constituting extraordinary circumstances” for the failure to comply with this statutory requirement.

The question faced by the Appellate Division was whether the plaintiff had met the extraordinary circumstances standard to justify the late filing of the notice of tort claim.  There was no question that plaintiff failed to file a notice of tort claim on JCMUA within the ninety days.  The plaintiff delivered a notice of claim within the required time but to the wrong address.

The Appellate Division noted that there was no mystery as early as the date of the accident that the vehicle was owned by JCMUA and driven by one of its employees and also there was no mystery about the location of JCMUA’s place of business which was included in the police report and was also otherwise readily available through a simple internet search.  The Court held that the plaintiff’s failure to serve the notice of claim on JCMUA at the right location “was a product of attorney neglect or inadvertence” which did not meet the extraordinary circumstances threshold as required by the statute to allow the filing of a late notice of tort claim.

The plaintiff argued that there was little doubt that JCMUA was aware of the event because, in early September 2019, within ninety days of the action’s accrual, plaintiff’s counsel communicated with Qual-Lynx, the administrator who adjusts claims made against JCMUA. The plaintiff’s counsel also advised and served Qual-Lynx with a claim for no fault benefits because plaintiff did not own an automobile and was not otherwise covered by auto insurance.

The Court noted that this submission to Qual-Lynx, however, made no mention of a personal injury claim to be asserted against JCMUA or its employee, and it cannot seriously be argued that a notice or communications with a public entity’s adjuster or insurer about a related claim constitutes the notice required by N.J.S.A. 59:8-8.”  (emphasis added). Moreover, the Appellate Division noted that the Qual-Lynx representative certified in the opposition to plaintiff’s motion for leave to file a late notice of claim “that he told plaintiff’s attorney during their September 6, 2019 telephone call that plaintiff needed to serve a notice of tort claim directly on JCMUA.”  As of that date, there was still time left to serve a notice of tort claim on JCUMA within the ninety day time period.

While plaintiff thereafter did forward a notice of tort claim, it was sent to City Hall, not JCMUA’s place of business on Route 440.  The Appellate Division noted that this was not a situation where the claimant or her representatives might have been confused about the identity of the public entity that caused the injury.  She knew at the scene of the accident that the driver worked for the JCMUA and, further, in corresponding with Qual-Lynx within the ninety day time period, the plaintiff’s then attorney referred to Qual-Lynx’s insured as “Jersey City MUA.”

The Appellate Division noted that JCMUA was “aware of and had already conducted an investigation into the accident but, in light of the absence of a timely notice of claim, JCMUA had no reason to know plaintiff intended to make a personal injury claim against it.”  Based upon these facts and circumstances, the Court found that the plaintiff’s failure to serve the notice of tort claim was the product of attorney inadvertence.  Counsel was or should have been aware of the identity of the public entity that was involved in the accident, as well as the correct address for the JCMUA.

Finally, the Appellate Division found that “[w]hile it may be viewed as a displeasing result because it seems JCMUA was aware of the accident and aware Qual-Lynx had been in communication with plaintiff about her no fault benefits claim, there is no question the Legislature intended – when it amended N.J.S.A. 59:8-9 – to require a showing of ‘extraordinary circumstances’ to set a high bar for relief.”

The Appellate Division noted that the Supreme Court had clearly established that attorney negligence or inadvertence did not constitute “extraordinary” within the meaning of N.J.S.A. 59:8-9.  Hence, the Court found that it was “constrained” to conclude the judge mistakenly exercised his discretion in allowing plaintiff to file a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s ruling in permitting the late notice of tort claim to be filed against the JCMUA.  Thus, the end result was that the claim against the JCMUA for this accident was barred.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Plaintiff Quadriplegic Found To Have Sufficient Basis To Justify Filing Of Late Notice Of Tort Claim Against Public Entity

On April 9, 2017, plaintiff Jonathan Jeffrey was involved in a one vehicle motorcycle accident, resulting in complete quadriplegia.  Approximately six months after the accident, he consulted counsel, at which point, he learned that his injuries may have been caused or significantly aggravated by the emergency medical technicians who placed him in the ambulance.  In the published decision of Jeffrey v. State, 2021 N.J. Super. LEXIS 65 (App. Div. May 18, 2021), the plaintiff appealed an order of the Law Division denying his motion for leave to file a late notice of tort claim.

Plaintiff’s injuries resulted in several surgeries, including spinal decompression and fusion surgery. He suffered a complete spinal cord transection at the C6-C7 level of his spinal cord, resulting in complete quadriplegia.

Plaintiff was released from the hospital on April 17, 2017 and transferred to a rehabilitation center for two months.  He continued to receive rehabilitation therapy on an out-patient basis for approximately four more months.

However, plaintiff remained completely disabled and unable to perform rudimentary movements, let alone to work.  He had an inability to voluntarily move the upper and lower parts of his body.

Plaintiff retained counsel on November 15, 2017.  At that time, plaintiff was using a wheelchair for mobility and had minimum movement of his upper body.  His decision to consult counsel was, in large part, due to a collection notice dated October 24, 2017 from the hospital.

Plaintiff filed a certification that the first time that he understood that he had a potential claim against the emergency medical services and/or other persons that provided medical care to him immediately after the April 2017 motorcycle accident was when he consulted counsel.  Thereafter, on March 20, 2018, his counsel filed a motion for leave to file a late tort claims act notice.  The lawyer certified that it was not until September 28, 2017 that she finally received sufficient information from a representative of the hospital to conclude that plaintiff’s permanent disabilities may have been caused by some or all of the medical care and treatment he received at the scene of the accident.  She sent in Tort Claims Act notices to the relevant public entities and thereafter filed a motion to seek leave to file a late notice of tort claim.

Pursuant to the Tort Claims Act, a plaintiff must file a notice of claim within ninety (90) days of its accrual (N.J.S.A. 59:8-8).  The Law Division judge has the discretion to grant a claimant leave to file a notice of claim beyond that ninety (90) day time frame, if he or she provides by Affidavit:

(1)        Extraordinary circumstances for his or her failure to file a timely notice of claim; and

(2)        The public entity or employees involved have not been substantially prejudiced by the plaintiff’s tardiness.

The plaintiff argued to the trial court judge that the gravity of his injuries made it “impossible or impractical to view this delay as a failure to exercise due diligence.”  The defendant argued that the motion judge properly exercised his discretion to find plaintiff did not show extraordinary circumstances to justify relief.

The Appellate Division concluded that the trial court judge mistakenly exercised his discretionary authority and reversed.  The Court found that the motion judge “failed to duly appreciate the magnitude of plaintiff’s injuries and their life-altering ramifications.”

In the appeal, the plaintiff argued that the Law Division made a mistake in finding that the accrual date was April 9, 2017, the actual date of his accident.  The trial court judge justified his decision in finding that, while it was difficult for the plaintiff to function in his daily life, there was insufficient evidence in the records to show that the plaintiff was not able to file a timely claim due to the severity of his injuries and his medical care.  The court had noted that the plaintiff was released for treatment by in-patient rehab and that there was nothing to indicate that plaintiff through a family member, friend or individual, was prevented from contacting or retaining legal counsel.

The Appellate Division found that the trial court judge “grossly misapprehended the magnitude of plaintiff’s injuries.  Plaintiff was 25 years old at the time of the accident.  In one catastrophic event, he lost complete movement and sensation of his body.”

The Court further pointed out that after completing two months of in-patient rehabilitation, it would “be beyond insensitive to impose a duty on plaintiff to seek legal advice through surrogates composed of family members or friends, during this life-altering adjustment period.”  The Appellate Division concluded that: “we are certain the Legislature did not intend for the judiciary to construe the term ‘accrual’ in N.J.S.A. 59:8-8 in a manner that abandons all vestiges of basic human empathy.”

Accordingly, the Appellate Division held that November 15, 2017 was the accrual date for his claim.  Thus, plaintiff’s motion to seek leave of the court to accept the TCA notice of claim was only thirty-five (35) days beyond the ninety (90) day statutory requirement.

The Appellate Division noted that after plaintiff completed his two month in-patient rehabilitation program, plaintiff was then required to confront and adjust to his physical limitations.  Further, the Court noted that plaintiff’s inherent difficulties associated with shifting from a motorcyclist to a quadriplegic wheelchair user “cannot be viewed as a barrier to deny plaintiff access to our civil courts.”

Thus, the Appellate Division found that the facts were sufficient to constitute “extraordinary circumstances” pursuant to N.J.S.A. 59:8-9 which permits the filing of a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s denial of the plaintiff’s request to file a late notice of tort claims against the public entities that the plaintiff believed may have exacerbated his injuries.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Under New Jersey Law, City Has No Liability For Plaintiff’s Injury Due To Fall On Snow In Street

In March 2015, plaintiff Donell Prince left his rooming house where he lived and noticed that there was snow on the common walkways of the rooming house property and the adjoining public sidewalks.  Plaintiff decided to walk in the street because snow had been plowed from the street into the sidewalks.  He fell and landed on his backside and side of his body.  One of the issues in Prince v. City of Englewood, 2021 N.J. Super. Unpub. LEXIS 247 (App. Div. February 12, 2021) was whether the City of Englewood could be liable for plaintiff’s fall on the public street because of snow conditions.

Plaintiff alleged that Englewood was negligent in failing to remove the snow from the public sidewalks and streets and this negligence caused him to fall and suffer injuries.  At the trial court level, Englewood successfully filed a motion for summary judgment, obtaining a dismissal of the lawsuit as to it.  This appeal ensued.

The Appellate Division pointed out that the well settled case law under the New Jersey Supreme Court case of Miehl v. Darpino gives public entities in the State absolute immunity for all snow removal activities.  As the Supreme Court later stated in Bligen v. Jersey City Housing Authority, “[t]he common law immunity was based primarily on the limitless liability that could be imposed on an entity, such as a state, county, municipality, or turnpike authority, that had the responsibility to clean up numerous streets and roads.”  Subsequent case law, after the Tort Claims Act was enacted, held that the Tort Claims Act did not change the common law snow removal immunity available to a public entity.

Thus, the Appellate Division found that summary judgment was properly granted in favor of the City of Englewood.  Plaintiff’s allegation was that he slipped and fell on a public street because of snow conditions.  The Court held that “because Englewood enjoys immunity from liability for its snow removal activities, it cannot be held liable for plaintiff’s alleged injuries.”  Thus, the trial court’s decision, granting summary judgment as to the defendant Englewood was affirmed by the Appellate Division.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Borough Found Not Liable For Slip And Fall Injury Due To Alleged Depression In Grassy Area Of Municipal Park

Plaintiff Suzanne Pagonis tripped and fell while walking across a grassy field at the Crestwood Lake Club, which was a recreational lake swimming complex owned by defendant Borough of Allendale and encompassed a municipal park, Crestwood Park.  Her daughter had participated earlier in the day in a softball tournament at the Club’s facilities.  Plaintiff fell while crossing a grassy field on the way back to her car to retrieve lunch for her children.  The issue in Pagonis v. Borough of Allendale, 2021 N.J. Super. Unpub. LEXIS 462 (App. Div. March 22, 2021) was whether the Borough was immune from liability for such accident under Tort Claim Act defenses.

Plaintiff and the other tournament families were advised that they could not use the beach and facilities reserved for members that were closest to the main entrance parking lot.  Rather, they had to use only the “west beach,” which was roughly across the lake from the member’s beach and the Club’s concession stand and access that beach through another entrance.  Plaintiff arrived with her children and ultimately ended up parking in a grassy area near the north end of the lake where other cars were parked.  With her family, she walked across a grassy field to the west beach.  Sometime later, she arrived at the concession stand to purchase some food.   Because of the long line, she decided to return to her car, retrieve lunch for her children and go back to the west beach.  As she crossed the grassy field and was about three-quarters of the way to the west beach, she tripped and fell.

Plaintiff claims that her right foot dropped into a deep hole, causing her fall and resulting injuries.  She alleged that the deep hole was a dangerous condition on public property and that the Borough negligently failed to maintain, supervise, control, and repair the open fields around the lake.  She also alleged that Allendale was responsible for controlling the parking lots and directing pedestrian traffic at the Club.  She claimed that the Borough failed to exercise reasonable care because it directed her to an area without safe access to the west beach and failed to supervise access to the west beach.

Allendale filed a summary judgment motion based upon immunities under the Tort Claims Act and the Landowner’s Liability Act.  The motion judge granted summary judgment to Allendale finding that the motion record failed to demonstrate that the hole that allegedly caused plaintiff’s fall or their lack of a pathway to the beach was a dangerous condition on public property.  The judge also rejected plaintiff’s claim that Allendale’s employees were negligent in supervising access to the west beach.  Further, the judge found that the Borough also had immunity under the Landowner’s Liability Act.

This appeal ensued and plaintiff argued that the summary judgment order should be reversed as to the Borough.

The Appellate Division noted that, under the Tort Claims Act, a public entity is immune from tort liability unless there is a specific statutory provision that makes it answerable for a negligent act or omission.  For a public entity to be found liable for a condition of property, “a plaintiff must establish the existence of a dangerous condition, that the condition proximately caused the injury, that it created a reasonably foreseeable risk of the kind of injury which was incurred, that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was palpably unreasonable.”  (N.J.S.A. 59:4-2).

Here, the police officer who responded to the plaintiff’s fall looked around and did not see any hole that the plaintiff might have stepped in and fallen.  One of the responding police officers took photographs, which did not show anything other than the general area of plaintiff’s fall.  Allendale’s Director of Operations testified in a deposition that the grassy areas was mowed by DPW workers two times per week in the summer.  He walked the grassy area once per week but was unaware of any complaints or prior accidents in the area.  Further, although plaintiff’s answers to interrogatories claim she fell in a “deep hole,” her fiancé described it as one caused by a vehicle’s tire.

The Appellate Division noted that, even assuming arguendo, the tire impression, undescribed as to its depth could be considered a dangerous condition, plaintiff was nonetheless required to prove the condition was caused by a public employee’s negligence or that Allendale had actual or constructive notice of the condition.  Although plaintiff contended that the hole was caused by a depression made by DPW vehicles or other vehicles operated by Allendale, the only support for this proposition was a photograph of the scene on the day of plaintiff’s fall.  This photograph portrayed a field of grass but did not demonstrate deep depressions in the earth caused by vehicles’ tires.

Additionally, the Court noted that there was no evidence demonstrating that Allendale was on actual notice of a dangerous declivity through prior observations or complaints.  Finally, the Court found that the plaintiff did not demonstrate that Allendale should have been charged with constructive notice of a dangerous condition.

Plaintiff’s alternative argument that Allendale negligently permitted its employees to direct attendees to an area that required them to walk on the grassy field after parking their cars also failed.  The Court held that “if there was no liability for the condition of the field, directing attendees to that area could not be an independent negligent act by a public employee.”

Thus, the Appellate Division upheld the order granting summary judgment to the Borough of Allendale. The Court found that it did not need to consider whether the immunity provided under the Landowner’s Liability Act applied because it found that the motion judge properly granted Allendale’s summary judgment under the provisions of the Tort Claim Act’s requirements of proof under N.J.S.A. 59:4-2 (liability for dangerous condition on public property).

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Third-Party Complaint Against Municipality Barred Due To Defendant’s Failure To Timely File A Notice Of Tort Claim

Plaintiff Eartha Butler claims that, on March 18, 2018, she suffered injuries after tripping and falling on a sidewalk adjacent to the defendant Badr’s Jersey City private school (“Badr”).  Badr was unaware of plaintiff’s claim until seven months after the accident.  At that time, it served a notice of tort claim upon Jersey City.  The issue in Butler v. Badr School, 2021 N.J. Super. Unpub. LEXIS 216 (App. Div. Feb. 9, 2021) was whether Badr could pursue a third-party complaint for indemnification and contribution against the City of Jersey City.

The plaintiff Butler did not assert a claim against the City. Plaintiff filed a complaint against Badr and other defendants on May 10, 2019, more than one year after the fall. Badr filed an answer and a third-party complaint asserting indemnification and contribution claims against the City.  Thereafter, the City moved to dismiss the third-party complaint.  It argued that Badr failed to timely serve a notice of tort claim in accordance with the Tort Claims Act requirements.  Badr cross-moved for an order deeming its October 31, 2018 notice of tort claim timely or, in the alternative, for leave to file a late notice of tort claim.

At the trial court level, the court granted the City’s motion to dismiss the third-party complaint. The court found that the March 8, 2018 date was the accrual date for the claim subject to the Tort Claim Act’s requirements.  It relied upon the Supreme Court’s decision in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  It concluded that Badr’s notice of tort claim was untimely because it was not served within ninety days of the accrual of plaintiff’s claim.  The court also denied Badr’s cross-motion, in the alternative, for leave to serve a late notice of tort claim because the cross-motion was filed more than one year after the March 18, 2018 accrual date of plaintiff’s claim under the Tort Claims Act.  Thus, the trial court entered an order granting the City’s motion to dismiss Badr’s third-party complaint and also denied Badr’s cross-motion.  Badr appealed both of these orders to the Appellate Division.

The Appellate Division noted that the Tort Claims Act defines a circumstance as to when a plaintiff may bring tort claims against any public entity.  The Act requires that a plaintiff asserting tort claims against a public entity must first serve the entity with a notice of claim within ninety days of the accrual of the claim.  Under the Jones case, the New Jersey Supreme Court made it clear that this notice of tort claim requirement applies to not only the plaintiff’s tort claims, but a defendant’s crossclaims and any third-party tort claims against a public entity.

Badr’s October 31, 2018 notice of tort claim was received by the City on November 5, 2018, which was more than seven months after plaintiff fell and was injured on a city sidewalk.  Badr claimed that its notice of tort claim was timely because it did not know, and had no reason to know about plaintiff’s fall and injuries or that it had a potential claim for indemnification and contribution against the City, until it received plaintiff’s counsel’s October 18, 2018 letter from plaintiff’s counsel, presumably advising of the accident.

Badr relied upon the discovery rule, claiming that the court erred by failing to deem its notice of tort claim timely and by dismissing its third-party complaint against the City.  Badr argued that it filed a notice within days of discovering, and first having any reason to discover, its possible claims for contribution and indemnification against the City.

The Appellate Division found that the trial court correctly rejected Badr’s argument because it was inconsistent with, and contradicted by, the Court’s holding in the Jones case.  In Jones, neither the defendant nor the plaintiffs filed a notice of tort claim with the public entity within ninety days of the accident.  Plaintiff had filed a complaint more than a year following the accident, but did not assert a claim against the public entity.  The Supreme Court found that the notice of claim requirement applied to both a plaintiff’s claim and a defendant’s crossclaim or third-party claim against a public entity.  Also, under Jones, the Court “explained that a defendant who fails to serve a timely notice of crossclaim for contribution or indemnification …. is not without a remedy at trial.”  A defendant may seek an allocation of fault against a public entity under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law and obtain “a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.”

Applying the Jones holding, the Appellate Division found that Badr’s notice of tort claim was not timely filed because it did not file a notice within ninety days of the accrual of plaintiff’s cause of action.  Badr also failed to move for leave to file a late notice of tort claim within one year of the accrual of plaintiff’s claim and, as a result, the trial court had no authority to grant Badr’s motion to file a late notice.  In the Jones case, the Supreme Court held that where a defendant fails to serve a timely notice of tort claim on a public entity and is not granted to leave to file a late notice, the Tort Claims Act bars that defendant’s crossclaim or third-party claim.

In summary, the Appellate Division affirmed the court’s orders dismissing Badr’s third-party complaint against the City and denying Badr’s motion for leave to file a late notice of claim and to deem the October 31, 2018 notice of tort claim timely.  However, the Appellate Division did note that Badr “shall be entitled to request that the jury allocate fault based on the alleged negligence of the City” as permitted by the Court in the Jones case.

The interesting part of this case is that even though the defendant knew of the claim within the one year time period and failed to timely seek leave to file a late notice of tort claim, the Appellate Division found that, nevertheless, although the third-party complaint was barred, the defendant was still entitled to request that the jury allocate fault based upon the alleged negligence of the public entity.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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New Jersey Supreme Court Orders Virtual Jury Trials to Proceed

After receiving numerous public comments, on January 7, 2021, the New Jersey Supreme Court has ordered that virtual jury trials are to proceed, starting on February 1, 2021. They will be implemented in a two phase approach in a limited number of vicinages on a voluntary basis starting February 1, 2021 and on a mandatory basis statewide starting on April 5, 2021.

The rationale appears to be able to move cases to a resolution. Without facing a trial, often parties are not realistic in trying to resolve their case. No doubt many cases will settle to avoid a virtual jury trial.

The Court noted that “countless civil litigants whose trials have been indefinitely delayed during the pandemic have not been able to resolve important disputes” and that the courts and attorneys have developed expertise in participating in virtual proceedings. Further, with training and support from the Judiciary, New Jersey residents have been able to serve as jurors in hybrid trials and grand jury panels, using their own technology or technology provided by the courts.

Hence, the Supreme Court entered an order that, during the duration of the COVID-19 pandemic, all civil jury trials will be conducted in a virtual format. In the first phase, consent to proceed remotely will be required. Phase 1 will include a limited number of vicinages: Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union. Phase 2 will start on or after April 5, 2021 and virtual civil jury trials will expand to all counties and no consent will be required. Phase 2 will continue as long as necessary based on the COVID-19 pandemic.

While all civil cases will be eligible for virtual civil jury trials, to the extent possible, each county will begin with cases involving a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses. Jury selection will be entirely virtual. Empaneled jurors will participate remotely with tablets provided by the court unless they can demonstrate that they are able to use their own technology.

At the pretrial conference with the judge, all aspects of the virtual process will be covered, including whether the judge, attorneys, and parties will be present in the courtroom or whether any or all of them will participate remotely. The judges and attorneys may agree to a hybrid format with the judge, attorneys, and witnesses participating from the courtroom.

The first virtual civil jury trials will be recorded and may be used for purposes of attorney and juror training for future virtual jury trials.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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First Aid Squad Responders Found to Be Immune from Liability for Injury Allegedly Caused by Negligent Transport of Patient

Plaintiff Rose Bengel was allegedly injured as a result of medical assistance provided by defendant Holiday City at Berkeley First Aid Squad, Inc. (“the Squad”). The Squad had responded to a 9-1-1 call for medical assistance and transported her to the hospital. The issue in Bengel v. Holiday City at Berkeley First Aid Squad Inc., 2020 N.J. Super. Unpub. LEXIS 2374 (App. Div. Dec. 11, 2020) was whether the defendant Squad and its first responder members were immune from liability pursuant to statute.

In response to a 9-1-1 call, the Squad arrived at the Bengels’ home to assist Rose Bengel (“Rose”), then 86 years old. The Squad members were advised by her home health aide that she had been wheezing and had pink eye since recently arriving home from a nursing home. Rose was non-ambulatory, being confined to a wheelchair from muscular dystrophy for decades. They had to lift her from her wheelchair to a stretcher to transport her to the hospital.

The plaintiff alleges that the Squad members negligently injured Rose in the process of lifting her, causing her to suffer a rotator cuff tear in her left shoulder. Due to her age, surgery was not recommended and it was contended that Rose’s use of her left hand and arm became more limited after this incident.

The Squad disputed that they caused any injury to Rose in the process of transferring her to the stretcher. They claim that they gently lifted her from her wheelchair, wrapping their arms around her abdomen and feet and sat her on the stretcher.

The Squad moved for summary judgment, arguing that they had statutory immunity against claims of negligence. The Plaintiff argued that the statutory immunity did not apply because it was not an emergent situation and the Squad failed to demonstrate their actions were in good faith.

The trial court judge granted the Squad and its member responders a summary judgment dismissal. He noted that the Squad was one of the 4 volunteer first aid squads in Berkeley Township and its members were first responders certified to provide Basic Lift Support Services. The judge applied the statutes, N.J.S.A. 2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, which “immunized volunteer rescue squads and members from civil liability when providing emergency public first aid or intermediate life support services in good faith.”

The judge found that the Squad members were engaged in public first aid rescue services as they were responding to a 9-1-1 medical emergency call. Although Rose’s condition may not have been life threatening, that did not make the call “non-emergent.” Further, the judge held that there was no evidence that any such injury suffered by Rose was with intent or bad faith of the Squad members.

The plaintiff appealed this summary judgment dismissal to the Appellate Division. The appeals court agreed with the trial judge that the Squad and its members who transported plaintiff qualified for statutory immunity from civil liability. More than negligent conduct would need to be proven to find that the Squad members failed to act in “good faith” or acted in a “willful or wanton” manner.

Thus, even if the Squad members were negligent in lifting Rose and caused her shoulder injury, the Appellate Division found that such actions did not strip the Squad and its members from their statutory immunity. Finding that, at worst, the Squad members were negligent, the Court upheld the trial court’s order granting summary judgment to the Squad and its members.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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