Plaintiffs move before this court for leave to file a notice of late claim against the Township of Millburn pursuant to the provisions of N.J.S.A. 59:8-9, and to perfect their claim against defendant police officers.
Joseph F. Lutz (hereinafter referred to as plaintiff) instituted this action against defendant police officers of the Township of Millburn seeking damages for personal injuries allegedly sustained by him on January 27, 1973 when said defendants attempted to serve a traffic summons. His wife sues per quod. On January 27, 1973 plaintiff was driving his car in the Township of Millburn when he was stopped by defendants and served with a traffic summons for going through a stop sign, passing on the right and defective brake lights. Plaintiff alleges that while he was talking to defendants one of them closed the window of the police car on his finger and as a result he allegedly sustained permanent injuries to his finger and back.
On February 7, 1973 plaintiff appeared at the Millburn Municipal Court to answer the traffic summons. The municipal court record reveals that plaintiff pleaded not guilty
to the charges and informed the court that he had sustained an injury to his finger in the course of the issuance of the summons. Plaintiff stated to the court that he had retained counsel for the traffic violations, but that his attorney was unable to appear since the matter was being heard in the evening. Several days later plaintiff called the police surgeon of Millburn, informing him that he had injured his right hand and his back as a result of the foregoing incident and requested an examination. The police surgeon advised plaintiff to see his private physician.
After being hospitalized for lumbar disc surgery, which was performed on June 7, 1973, plaintiff consulted an attorney who informed him that he would present a formal notice of claim to the Township of Millburn. The notice of motion was filed on July 10, 1973. Plaintiff bases his request for leave to file the late notice on the ground that he was not aware of the enactment of the recent New Jersey Tort Claims Act which requires that actions against public entities be preceded by a claim filed within 90 days after accrual of the cause of action. See N.J.S.A. 59:8-8. Additionally, plaintiff offers as a ground for excusable neglect to file said claim that he was unaware of the seriousness of his injuries until his hospitalization in June 1973. He further bases his request for leave to file a late claim on the ground that his right to assert a claim for pain and suffering did not accrue until he incurred medical expenses greater than the amount of $1,000 under N.J.S.A. 59:9-2(d).
Millburn contends that plaintiff's delay in filing due to ignorance of the Tort Claims Act was not excusable, and that it will be sustantially prejudiced by the filing of a late notice of claim.
Presently, tort claims against public entities are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., which became effective on July 1, 1972. N.J.S.A. 59:8-3 provides:
No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.
N.J.S.A. 59:8-8 provides for the time for presentation of claims as follows:
A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. * * *
N.J.S.A. 59:8-9 provides with respect to a notice of late claim:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the superior court, be permitted to file such notice at any time within 1 year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim.
Thus, a plaintiff may in the discretion of the court be permitted to file a late notice of claim upon a showing of sufficient reason for the delay, provided that the defendant is not substantially prejudiced thereby. There does not appear to be any reported decision in New Jersey on this issue, and therefore the court has looked to the law of California for guidance in determining whether to grant plaintiff's motion for leave to file a late notice of claim. The Report of the Attorney General's Task Force on Sovereign Immunity published in May 1972 recommends that New Jersey enact a tort claims act following the basic statutory approach contained in the California Tort Claims Act of 1963.
The California cases hold uniformly that the determination of whether delay in filing is excusable rests in the discretion of the trial judge. Viles v. California, 66 Cal. 2d 24,
56 Cal. Rptr. 666, 423 P. 2d 818 (Sup. Ct. 1967); Martin v. City of Madera, 265 Cal. App. 2d 76, 70 Cal. Rptr. 908 (D. Ct. App. 1968); Clark v. City of Compton, 22 Cal. App. 3d 522, 99 Cal. Rptr. 613 (Ct. App. 1971); Black v. County of Los ...