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Keller v. County of Somerset

Decided: October 28, 1975.

IRMA M. KELLER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WILLIAM KELLER, DECEASED, AND IRMA M. KELLER, GENERAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM KELLER, A MINOR, DECEASED, PLAINTIFF-RESPONDENT,
v.
COUNTY OF SOMERSET, DEFENDANT-APPELLANT, AND TOWNSHIP OF FRANKLIN, DEFENDANT



Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Lynch, J.A.D.

Lynch

[137 NJSuper Page 3] Leave having been granted, defendant County of Somerset (county) appeals from an order of the Law Division denying its motion to dismiss plaintiff's complaint for failure to comply with the notice provision of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (act.).*fn1 The act requires that a notice of claim be filed with

a public entity within 90 days after a cause of action accrues against it. N.J.S.A. 59:8-8.*fn2

On July 27, 1973 plaintiff's decedent, her minor son, was driving along Bunker Hill Road in Franklin Township, Somerset County, when his car went off the road and struck a tree. The accident resulted in his death. A notice of claim was filed with each defendant on January 17, 1974, or 174 days after the accrual of the cause of action.

On July 11, 1974 plaintiff's counsel filed a notice of motion for leave to file a notice of claim out of time, pursuant to N.J.S.A. 59:8-9. That section reads as follows:

59:8-9. 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.

The affidavit of plaintiff's counsel which accompanied the motion asserted that plaintiff had not retained counsel until after the 90-day period had expired and that the filing of the "civil complaint * * * was not feasible until receipt of an

engineer's report upon which the action is based and this report was not received until June 21, 1974."*fn3

Following the trial judge's denial of the county's motion to dismiss, we heard argument in this matter and remanded it to the trial judge to determine whether there were "sufficient reasons" for plaintiff's failure to file a notice of claim within the 90-day period. N.J.S.A. 59:8-9. The trial judge was directed to file his findings and conclusions with this court. He has done so after receiving from plaintiff both a further affidavit and, pursuant to leave granted by this court, her oral testimony. The judge found that the failure to file a notice of claim within time was due to two reasons: (1) "The plaintiff * * * was under a debilitating emotional strain following the death of her son," and (2) "* * * she was not aware of the possible existence of a claim against the public entity until the filing time expired." The judge considered such reasons sufficient and permitted the late filing of the notice of claim.

At the outset we note that section 9 of the Tort Claims Act permits relaxation of the 90-day limitation for "sufficient reasons" as long as the public entity is not substantially prejudiced thereby. N.J.S.A. 59:8-9. It is conceded that the public entities here were in no way prejudiced by the delay in filing the notice of claim. Therefore, the issue is reduced to whether the trial court's findings constitute "sufficient reasons" for failure to file the notice of claim within the 90-day period and whether the trial court abused its discretion in permitting the filing out of time.

We must first recognize the nature of the trial judge's action and the scope of our review thereof. By its express terms section 9 permits relaxation of the 90-day limitation "in the discretion" of a judge of the Superior Court. Thus an appellate court cannot reverse unless there ...


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