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Lutz v. Township of Gloucester

Decided: October 12, 1977.

PHYLLIS LUTZ, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF GLOUCESTER, DEFENDANT-APPELLANT, AND CAMDEN COUNTY HIGHWAY DEPARTMENT, DEFENDANT, V. EUGENE LUTZ, THIRD-PARTY DEFENDANT



Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.

Larner

Defendant is before us by virtue of leave to appeal heretofore granted pursuant to R. 2:2-4. The appeal involves the propriety of an order permitting the late filing of a claim with a municipal entity pursuant to the provisions of the Tort Claims Act. N.J.S.A. 59:8-8 and 9. As a condition precedent to the institution of suit against a public entity, a claimant is required to file a claim with that entity containing designated information (N.J.S.A. 59:8-4) within 90 days after accrual of the cause of action. Section 9 authorizes a judge of the Superior Court in his "discretion" to permit late filing within one year upon a showing by affidavits of "sufficient reasons" for the failure to file within time and provided that the entity has not been "substantially prejudiced."

It is conceded that the township herein was not substantially prejudiced by the delay, and the sole question thus is whether there are "sufficient reasons" presented to the trial

judge to justify the issuance of the order permitting late filing.

Plaintiff was injured on June 29, 1975 while riding as a passenger in a vehicle operated by her husband on a road in Gloucester Township. Her injury was allegedly caused by the vehicle striking a gulley or depression in the road caused by negligent maintenance thereof by the municipality.

Plaintiff received emergency treatment at a local hospital and returned thereafter to her home in Philadelphia. On or about July 17, 1975 she communicated with her attorney in Philadelphia for the purpose of prosecuting a claim "against the authorities who designed, maintained or repaired the intersection in question." As a result of that communication, the Philadelphia attorney sent her a retainer agreement and medical authorizations to permit him to proceed on her behalf.

Apparently plaintiff did nothing further until December 23, 1975 when she returned the executed retainer agreement and authorizations to her attorney. It was at that time that he referred the matter to counsel who was admitted to the bar of Pennsylvania and New Jersey, and who filed a motion for leave to file a claim out of time on April 5, 1976, approximately nine months after the accident.*fn1

It is noteworthy that plaintiff in her affidavit acknowledges that she was immediately cognizant of a potential cause of action against the public entity because of its negligence in maintenance of the road surface. Furthermore, on July 17, 1975, the very day that plaintiff contacted her attorney, a photographer (presumably hired by that attorney) was at the scene of the accident taking photographs and questioning an employee of the municipality about the design of the intersection. On August 1 an investigator (also presumably

hired by the attorney) was in the municipality questioning local police officers.

Plaintiff states that she was unaware of the 90-day notice requirement of the New Jersey statute.

The Philadelphia attorney initially retained by plaintiff states in an affidavit that he did not proceed with the filing of a claim because of the failure of plaintiff to return the retainer agreement. He asserts that he was therefore "powerless to represent plaintiff under the Code of Conduct of Pennsylvania and could not notify the appropriate public entities * * * of the possible claim to be filed against them." This explanation on his part is difficult to accept in view of the representation of his client through the preparation reflected in the ...


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