Lynch, Larner and Horn. The opinion of the court was delivered by Horn, J.A.D.
Plaintiffs appeal from a summary judgment entered against them in an action brought for personal injuries against defendant Borough of Palisades Park (borough). The trial judge entered judgment on the ground that the injured plaintiff Peter H. Anske failed to comply with the reporting section of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8.
On December 2, 1972 Anske allegedly fell and sustained a fractured ankle when he stepped into a pothole near the curb line of West Harwood Terrace in Palisades Park. An ankle cast was applied and subsequently removed on January 5, 1973. On January 6, 1973 he was hospitalized as a result of a pulmonary embolism, which allegedly developed as a secondary complication to the fractured ankle. On January 16, 1973 the hospital discharged him and he convalesced at his home until he resumed his normal activities.
Approximately two weeks after the fall and while his ankle was still in the cast he personally reported the accident at the office of the borough clerk. An unidentified borough employee requested the date, time and place of the accident, as well as the nature of the injury. Plaintiff supplied this information and the employee informed him "not to worry about it" and that it would be "taken care of by the insurance company."
Between a week and ten days later a representative of the Hartford Insurance Company, the liability carrier of the borough, communicated with him. He questioned him with respect to the details of the accident as well as the nature of his injury. The insurance company representative was informed
of his hospital confinement. After his discharge from the hospital the representative visited him.
Apparently no further communication followed. Anske retained the services of counsel who instituted the action on May 4, 1973.*fn1 The complaint on behalf of him and his wife Christa (per quod) followed the usual form in furnishing information as to plaintiff's address, the time and place of the accident, what occurred, the cause (hazardous roadway condition caused by the borough's negligence) and that he sustained a permanent injury with resultant damages.
On June 19, 1973 defendant filed an answer which consisted of a general denial, an affirmative defense of contributory negligence, a request that plaintiffs supply a written statement of claimed damages and a demand for a trial by a jury of 12.*fn2
On January 22, 1974 defendant amended its answer by adding a second affirmative defense -- that the claim was barred by virtue of the New Jersey Tort Claims Act. We are not told whether the amended answer was authorized by an order of the court. R. 4:9-1.
Thereafter defendant made the motion which culminated in the summary judgment. In contesting defendant's right to the judgment plaintiff submitted an affidavit which recounted his visit to the borough clerk's office and the subsequent events, including the visit to him
5. At all times during the course of my treatment the insurance carrier was kept advised of all particulars and had adequate opportunity to ...