For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None.
The Law Division dismissed the plaintiffs' complaint on the ground that they had not strictly complied with the notice of claim requirement set forth in N.J.S.A. 32:1-163, 164. They duly appealed to the Appellate Division and we certified before argument there.
On January 15, 1968 the plaintiff Jacob Zamel suffered personal injuries when he fell on an icy parking lot at the Newark Airport which is operated by the defendant Port of New York Authority. He immediately reported the incident
to a police officer and was treated at the medical clinic located in Building No. 5 at the Airport. Several days later, on January 19, William E. McDonough, Representative of the Port Authority, sent a note to Mr. Zamel requesting that he call him about his "fall at Newark Airport." On May 16 an attorney addressed a letter to the Port Authority, attention of Mr. McDonough, advising that his office represented Mr. Zamel with reference to the injuries he sustained "in an accident which occurred on January 15, 1968, at about 9:30 A.M., Parking Lot No. 1, Aisle No. 15 located at Newark Airport, Newark, New Jersey"; the attorney advised further that the investigation conducted by his office indicated that Mr. Zamel "was caused to slip and fall and injure himself on the above premises as a result of the carelessness and negligence of your agents, servants and employees"; he concluded his letter with an inquiry as to what disposition the Port Authority intended "to make of this claim."
Under date of May 21, Mr. Gillespie, claims attorney for the Port Authority, wrote a letter to Mr. Zamel's attorney acknowledging his May 16 letter, enclosing copies of the statute granting consent to suit, calling his attention to sections 7 and 8 (N.J.S.A. 32:1-163, 164), and submitting forms with the comment that they could be used, if so desired, "[a]lthough no particular form is necessary so long as it satisfies the requirements of the statute. * * *" Mr. Zamel's attorney did not fill in or return the forms but under date of June 11, 1968 he did address a letter to the Port Authority, attention of Mr. McDonough, enclosing copies of medical and hospital reports including Dr. Lohman's report dated May 22, 1968, and requesting that upon their review communication be made to his office "for an amicable adjustment of the above claim."
The record is obscure as to what transpired immediately after the letter of June 11. However, on December 3, Mr. Zamel's attorney addressed a verified letter to the Port Authority, attention of Mr. McDonough, which in its initial
paragraph stated that, confirming a telephone conversation, it should be considered as a "Notice of Claim filed on behalf of our client Jacob Zamel." In the ensuing paragraph, the attorney set forth the following information which he said was required under the statute:
"Jacob Zamel, 160 Grumman Avenue, Newark, New Jersey
As to the nature of injuries, see Dr. Herman Lohman's report dated May 22, 1968 attached hereto which sets forth that on January 15, 1968 the plaintiff, Jacob Zamel, fell on ice at the Newark Airport sustaining the injuries complained of herein."
Under date of December 4, the attorney forwarded a copy of the December 3 letter to Mr. McDonough, by registered mail.
On January 7, 1969, the plaintiff Jacob Zamel, along with his wife who merely asserted a per quod claim (Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82 (1965)), filed his negligence complaint in the Law Division seeking damages from the Port Authority. An answer filed by the Port Authority set forth, as a first separate defense, that the plaintiffs had not filed their notice of claim in compliance with N.J.S.A. 32:1-163, 164. The plaintiffs, through their present counsel (other than the attorney who had engaged in the correspondence with the Port Authority), filed a motion to strike the first separate defense. The Port Authority countered with a motion to dismiss the complaint because the ...