[132 NJSuper Page 93] Marle P. Wade and his wife, Arlene E. Wade, make this motion to permit late filing of notice
under N.J.S.A. 59:8-9. The motion is directed at the New Jersey Turnpike Authority and the State of New Jersey.
The New Jersey Tort Claims Act requires that notice of claim be filed against public entities within 90 days after accrual. N.J.S.A. 59:8-8. Provision for filing of late notice, up to one year after accrual of a claim, is found in N.J.S.A. 59:8-9, where the public entity will not be substantially prejudiced by the delay. A motion to allow a late filing to stand must be based on affidavits showing sufficient reasons for the moving parties' failure to file timely notice.
Marle P. Wade was operating a truck owned by Riteway Rentals and leased to Scientific Packing Corporation, when he became involved in what has come to be termed the turnpike accidents of October 23 and 24, 1973. Neither the Turnpike Authority, nor the State were noticed by Marle P. Wade within the 90 day period. Both of these public entities were noticed some eleven months after the date of the accident. Thus it falls to this court to decide whether the public entities involved would be substantially prejudiced by the delay in filing a claim, and whether the reasons set forth in Marle P. Wade's affidavits are sufficient to allow the late notice to stand. There is too, the further question, raised by Marle P. Wade, of whether the New Jersey Turnpike Authority comes within the New Jersey Tort Claims Act at all.
In his affidavit attached to this motion, Marle P. Wade states that he was disabled from October 24, 1973, (the date of the accident) to April 29, 1974; that he was in and out of hospitals, both in New Jersey and in Maine, as a result of injuries sustained in the accident, until January 15, 1974; that he was confined to his home through March of 1974; and that he was an out-patient until April 15, 1974. Although employed by the Scientific Packing Corporation, located in Elizabeth, New Jersey, Marle P. Wade is and has been a resident of the State of Maine for the
past 18 years. Wade contacted Maine counsel only about the possibility of suing "the other driver". This occurred November 11, 1973, but at that time Marle P. Wade did not know who the other driver was. He made no further inquiries of his Maine attorney until June of 1974, when he was served as a defendant in another case arising out of the same accident.
The other affidavit submitted with this motion is that of Raymond Troy, Marle P. Wade's New Jersey counsel. Troy states that Maine counsel failed to contact his firm until September 6, 1974, fully 10 months after the accident. He further states that Marle P. Wade came to his office on September 19, 1974 with several summonses and complaints that had been served upon him in various actions arising out of these same accidents. At that time Raymond Troy saw that the Department of Environmental Protection of New Jersey, the New Jersey Turnpike Authority and the New Jersey Division of State Police were defendants in cases growing out of the Turnpike Accidents.
In his affidavit Raymond Troy contends that N.J.S.A. 59:1-1 et seq. notice is not required as to the New Jersey Turnpike Authority. He notes that the Turnpike Authority carries liability insurance and that it is represented by independent attorneys, outside of the Attorney General's office. The affidavit also notes that N.J.S.A. 27:23-1 et seq. established the New Jersey Turnpike Authority within the Department of Transportation and authorized the Turnpike Authority to sue and be sued. It is argued that the power to sue and be sued takes the Turnpike Authority out of the definition of "State" contained in N.J.S.A. 59:1-3.
The brief submitted in support of this motion reiterates the reasons set forth in the attached affidavits and provides greater detail as to the injuries sustained by Marle P. Wade, the dates of his admissions and releases from hospitals, and the operations and other treatment he underwent before being able to return to work on April 28, 1974.
The question of whether or not the New Jersey Turnpike Authority is included in N.J.S.A. 59:1-1 et seq. needs to be disposed of before the other questions relating to this motion are reached. It is the opinion of this court that the Turnpike Authority does fall within the New Jersey Tort Claims Act. In their brief plaintiffs read the New Jersey Turnpike Authority out of the statute by demonstrating that the Turnpike Authority is not included in the definition of "State" contained in N.J.S.A. 59:1-3. It should be noted, however, that "Public ...