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Rost v. Board of Education of Borough of Fair Lawn

September 24, 1974

EVAN SETH ROST, AN INFANT BY HIS G/Aœ MURRAY ROST, AND MURRAY ROST, INDIVIDUALLY, PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE BOROUGH OF FAIR LAWN, THOMAS CANNITO, FRANK J. MONTALBANO AND OLIVE FOX, DEFENDANTS



Gelman, J.s.c.

Gelman

The first count of the complaint in this action alleges that the infant plaintiff was injured on September 29, 1972 while a student at and on the premises of the Memorial Junior High School in Fair Lawn, New Jersey. The injuries are alleged to have occurred as a result of the negligence of defendant board of education and three employees of the board who are also named as defendants. The second count of the complaint sets forth a claim for consequential damages on behalf of the infant's father.

In addition to a denial of negligence on the part of defendants the answer sets forth as a further defense the failure of plaintiffs to give timely notice of their claims as required under the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., which became effective July 1, 1972. Notice of the claim was not given to the board by plaintiffs until November 2, 1973, well beyond the 90-day period required by N.J.S.A. 59:8-8 and beyond the one-year time limit for judicial approval of the late filing of a claim. N.J.S.A. 59:8-9; see Lutz v. Semcer, 126 N.J. Super. 288 (Law Div. 1974).

Defendants have moved for a dismissal of the complaint because of plaintiffs' failure to comply with the notice requirements of the act, and when the matter was argued defendants conceded that the infant's claim was not barred since N.J.S.A. 59:8-8 expressly extends the time limitations set forth therein for the giving of notice or the institution of an action by an infant until he has become of age.*fn* Cf. Giles v. Gassert, 23 N.J. 22, 34 (1956); Moore

v. Truesdale, 48 N.J. Super. 257, 261 (App. Div. 1958). Likewise, it was conceded that the notice and time requirements set forth in chapter 8 of the act (N.J.S.A. 59:8-1 et seq.) apply only to claims against public entities and do not afford a defense to negligence claims against public employees. This follows from the explicit language of N.J.S.A. 59:8-3, which limits the application of chapter 8 to actions "brought against a public entity," as distinguished from employees of a "public entity." Compare N.J.S.A. 59:8-3 with N.J.S.A. 59:9-1.

As a result of defendants' concessions there remains for decision the question whether the father's claim for consequential damages is barred as against the board of education. The Tort Claims Act does not except a consequential damage claim from the operation of prescribed time limits, but plaintiff urges that the notice requirement is tolled by N.J.S.A. 2A:14-2.1, which provides:

Where a parent or other person has a claim for damages suffered by him because of an injury to a minor child caused by the wrongful act, neglect or default of any person within this State, an action at law upon such claim may be commenced by the said parent or other person within the same period of time as provided by law in the case of the said minor child so injured, provided that, if an action is commenced by or on behalf of the said minor child, the said claim of the parent or other person shall be asserted and maintained in such action brought on behalf of the injured minor child either as a plaintiff

or third party plaintiff and if not so asserted shall be barred by the judgment in the action brought on behalf of said injured minor child.

This statute provides, in effect, that the time period for the commencement of an action on the parental claim shall be coextensive with the limitation period applicable to the infant's claim so long as the parent's claim is joined in the same action as that of the infant. Prior to the passage of N.J.S.A. 2A:14-2.1 our courts had held that the parental claim was not derivative but constituted a separate and independent cause of action which was barred by the running of the statute of limitations even though the infant's claim was tolled by reason of N.J.S.A. 2A:14-21.*fn2 Higgins v. Schneider, 61 N.J. Super. 36 (App. Div.), aff'd 33 N.J. 299 (1960); cf. Trevorrow v. Boyer, 52 N.J. Super. 215 (Law Div. 1958) (consequential claim against Unsatisfied Claim and Judgment Fund barred by failure to give timely notice to Fund even though infant's claim held tolled by N.J.S.A. 2A:14-21).

N.J.S.A. 59:8-8 conditions the institution of a civil action against a public entity upon the giving of timely notice of the claim. The notice requirement does not "affect the statute of limitations" time period otherwise provided for in the Tort Claims Act. See Comment to § 59:8-1, Report of the Attorney General's Task Force on Sovereign Immunity (1972). The purpose of the claim notification requirement is to ...


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