This matter comes before the court on motions by infant plaintiff Donna Vedutis and by plaintiff Robert Vedutis, her father, to file notices of claim with the South Plainfield Board of Education in accordance with the New Jersey Tort Claims Act, N.J.S.A. 59:8-8 and 59:8-9, at a time in excess of two years after the occurrence of the accident.
The present application arises out of certain injuries sustained by infant plaintiff on October 10, 1972 during the course of her participation in a soccer game, while attending a gym class at the Franklin School located in South Plainfield, New Jersey.
Immediately after the accident the father made numerous attempts to secure payment of the medical bills incurred from the South Plainfield Board of Education and its insurance company. Although no formal notice of claim, as contemplated in N.J.S.A. 59:8-8, was served upon the board of education until April 7, 1975, it appears that both the board and its insurance carrier were notified of the accident shortly after its occurrence. The father indicates that on at least two occasions a representative of the insurance carrier stated over the telephone that the conversations with respect to the claims were being recorded since an agent was unavailable to personally visit with him and discuss the matter.
In early March 1973, after repeated efforts to obtain satisfaction, plaintiff sought assistance from "HELP" editors of the Plainfield Courier News. On March 20, 1973 one Frank Shea, an employee of the insurance carrier for the
Board of Education, responded to an inquiry made on March 6, 1973 by the "HELP" editor, stating in part:
Your letter of March 6, 1973 adressed to the South Plainfield Board of Education has been sent to us for our handling. I can assure you that this matter is receiving adequate attention, the only response I can give you with respect to your inquiry is the fact that there is a liability question involved in this matter * * *
Further evidence of the carrier's notice of this accident is found in a letter dated February 21, 1973 to the parents of the child with whom infant plaintiff had collided during the soccer game. The carrier suggested that the parents contact their homeowner's policy carrier in the event that suit was commenced.
It is significant to note at this juncture that plaintiff father's aforesaid efforts to obtain reimbursement of infant plaintiff's medical expenses were within one year of the accident. Believing that payment would be forthcoming, he did nothing further until July 22, 1974, when counsel was retained. Plaintiffs' counsel filed a formal notice of claim with the board of education on April 7, 1975.
Two issues are presented for the court's consideration. First, may an infant plaintiff be permitted to file a notice of claim, pursuant to N.J.S.A. 59:8-8, over two years after the accident? Second, does an infant plaintiff's parent have a right to file a late notice of claim for consequential damages by reason of infant plaintiff's injuries?
Resolution of the first issue calle for a construction of the last sentence in N.J.S.A. 59:8-8 which states:
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 ...