Lora, Seidman and Milmed.
[154 NJSuper Page 421] James Fuller was injured on November 8, 1974 when he jumped over a concrete barrier fence in the rear of his dormitory at Livingston College, Rutgers University. Due to his lengthy hospitalization, Fuller authorized his grandmother, Priscilla Ransohoff, to handle any legal matters concerning the accident.
Defendant Rutgers promptly received knowledge of the accident and investigated it. Within 90 days of the accident Ransohoff consulted an attorney who, she asserts, advised her that she had four years in which to think about bringing suit because James was 18 when the accident occurred. Relying on this information Ransohoff did nothing further until November 8, 1976, when her present attorney informed her of the applicable statute of limitations and the notice requirements of the Tort Claims Act. Plaintiffs filed suit the same day and moved to file a notice of late claim pursuant to N.J.S.A. 59:8-9. The trial judge denied the motion, dismissed the complaint as to defendant Rutgers, and this appeal ensued.
Plaintiffs first contend that the trial judge erred in not exercising his discretion to allow them to file a late notice of intention to claim under the Tort Claims Act because (1) excusable neglect existed, and (2) defendant Rutgers had received full knowledge of the accident in a timely manner and was therefore not prejudiced by the failure to give timely formal notice. We disagree.
It appears that Ransohoff talked to the Dean of Students at Rutgers University shortly after the accident occurred and within 90 days thereof. However, no formal notice to file a claim under the Tort Claims Act was given at this time because, as stated above, plaintiffs had consulted an attorney who advised them that they had four years in which to consider instituting suit. They did not learn that this advice was wrong until November 8, 1976, two years after the accident, at which time they filed a complaint and a notice of motion to file a late claim pursuant to N.J.S.A. 59:8-9, which provides:
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.
"Accrual" as used in the statute is defined in accordance with existing law in the private sector and means the date on which the accident occurs, and is not affected by the notice provisions of the statute, N.J.S.A. 59:8-1. Accordingly, plaintiffs' cause of action accrued on November 8, 1974. Bell v. Camden Cty. , 147 N.J. Super. 139, 142 (App. Div. 1977); Anaya v. Tp. of Vernon Tp. , 139 N.J. Super. 409, 413 (App. Div. 1976), certif. den. 71 N.J. 494 (1976).
It is plaintiffs' contention that because of the excusable neglect and lack of prejudice to defendant since it had actual knowledge of the accident in a timely manner, the trial judge would have been justified in exercising his discretion favorably. However, it is clear that a judge is powerless under the statute to exercise any discretion or to act after a period of one year has elapsed from the date on which the cause of action accrued, where application to the court by motion for permission to file a late notice of claim has not been made within the year. Bell v. Camden Cty. supra , 147 N.J. Super. at 142; Anaya v. Vernon Tp., supra , 139 N.J. Super. at 413. Excusable neglect and lack of prejudice, where relevant, are factors which may be considered by the judge only in cases in which he has discretion, i.e. , cases in which such motion is made within one year after the accrual of the claim. Bell v. Camden Cty., supra at 142; Keller v. Somerset Cty. , 137 N.J. Super. 1, 5 (App. Div. 1975).
Plaintiffs' reliance upon Lutz v. Semcer , 126 N.J. Super. 288 (Law Div. 1974); Wade v. N.J. Turnpike Auth. , 132 N.J. Super. 92, 99-100 (Law Div. 1975); Keller v. Somerset Cty., supra: Marino v. Union City , 136 N.J. Super. 233 (Law Div. 1975); Viles v. California , 66 Cal. 2d 24, 56 Cal. Rptr. 666, 423 P. 2d 818 (Sup. Ct. 1967), and Thompson v. Fresno Cty. , 59 Cal. 2d 686, 31 Cal. Rptr. 44, 381 P. 2d 924 (Sup. Ct. 1963), is misplaced since these cases concerned situations where the motions for relief were made
within the period of time fixed by the statute for the exercise of the court's discretion.
Similarly, plaintiffs' reliance upon Vedutis v. Tesi , 135 N.J. Super. 337 (Law Div. 1975), aff'd o.b. 142 N.J. Super. 492 (App. Div. 1976), and Wozniak v. Peninsula Hospital , 1 Cal. App. 3d 716, 82 Cal. Rptr. 84 (D. Ct. App. 1969), is equally unfounded because those cases dealt with the "infant" exception to the Tort Claims Act which expressly preserves a plaintiff's right to commence an action within the time limitation of the act, after his coming to or ...