This action is brought on behalf of infant plaintiff and her father seeking damages for injuries suffered by the infant in a fall from a bicycle. The complaint filed September 14, 1973 alleges that the little girl fell and was injured on July 7, 1973 when her bicycle struck a depression in a street controlled and maintained by defendant municipality. It contains three counts, the first two encompassing claims on behalf of the injured infant and the third on behalf of her father seeking recovery of money expended in having his daughter's injuries treated. In its answer the township denies all allegations of negligence and sets out various separate defenses including a claim that it is immune from suit. The matter is now before the court on defendant's motion for summary judgment dismissing the complaint or, in the alternative, limiting the extent of plaintiffs' potential recovery.
The basis for defendant's motion to dismiss is strictly limited to a question of law and does not involve resolution of any issue of material fact. It is, therefore, ripe for summary judgment. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954). Defendant's argument is that plaintiffs have failed to comply with mandatory provisions of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., requiring that timely notice of all claims against a public entity be given else a bar be imposed on action against the entity. It is for the court to determine the applicability of such provisions to the instant facts and the effect thereto.
At the outset it should be noted that defendant has been careless in its pleadings. Under R. 4:5-4 a responsive pleading must specifically set forth the separate defenses raised. In the present motion defendant seeks dismissal on the basis of plaintiffs' alleged noncompliance with provisions of the Tort Claims Act. Such noncompliance is not set out in the answer as a separate defense. Rather, defendant makes the broader claim of immunity from suit, a defense which was effectively abrogated with the effective date
of the act (July 1, 1972, N.J.S.A. 59:14-4) and, therefore, not available at any time instant to this lawsuit. Thus defendant pleads a defense no longer viable and moves for judgment under a defense which it fails to affirmatively plead.
In Jackson v. Hankinson, 94 N.J. Super. 505, 514 (App. Div. 1967), aff'd. 51 N.J. 230 (1968), the court determined that under R.R. 4:8-3, the source rule of R. 4:5-4, the defense of qualified immunity of a municipality had to be specifically pleaded in order to avoid surprise, which purpose it identified as "the spirit of the rule." However, it went on to qualify this pleading requirement where public policy compelled having the defense before the court and the other party was not prejudiced, citing Douglas v. Harris, 35 N.J. 270 (1961), as authority. This same rationale is directly applicable to the present case. The public policy in having the Tort Claims Act applied here is as compelling as that in Jackson, supra. Although not pleaded, invocation of the act should come as no surprise to plaintiffs in view of the pleading of sovereign immunity, a defense which is at least of the same genre as those encompassed by the act. Plaintiffs have complained of no surprise or prejudice and the court perceives none. While it is clear that an affirmative defense under the act should properly be pleaded under R. 4:5-4, failure to do so may be excused by the court under appropriate circumstances. Such circumstances are extant here.
The purpose of the Tort Claims Act is to modify the doctrine of sovereign immunity and create limited situations in which individuals may bring tort claims against public entities. N.J.S.A. 59:1-2. In keeping with this purpose the act provides certain procedures which must be followed in instituting and pursuing such claims. Among them is provision for notification of the entity of any claim against it. N.J.S.A. 59:8-1 et seq. lays out the manner in which claims are to be presented. Included within the
presentment scheme is a time provision encompassed in N.J.S.A. 59:8-8:
59:8-8. Time for presentation of claims
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. After the expiration of 6 months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or his authorized representative entered into a settlement agreement with respect to the claim.
Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations contained herein, after his ...