On appeal from Superior Court, Law Division, Monomouth County.
Plaintiff Kathleen Hill and her mother Mary Hill appeal from a judgment dismissing their personal injury claim against defendant Board of Education of the Township of Middletown because of their failure to comply with the notice of claim provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.
On January 6, 1975, while a student at Thorne Junior High School which is operated by defendant, plaintiff Kathleen Hill, aged 14, injured her right knee when she fell during a practice of the school's basketball team. Her coach and the school nurse packed plaintiff's knee in ice. Thereafter, plaintiff complained to the coach and nurse on various occasions that she was experiencing pain in her knee. However, they informed her that only a bruise was involved and plaintiff played in subsequent basketball games. In July 1976 plaintiff consulted an orthopedic surgeon and underwent the first of nine operations on her right knee.
In December 1976 plaintiffs retained an attorney who immediately telephoned defendant and informed its representative that plaintiffs intended to institute a lawsuit for the injuries sustained by Kathleen Hill. Thereafter, he spoke with defendant's attorneys about the incident and provided specific details as to the injury and the required medical treatment.
Plaintiffs instituted suit against defendant on December 8, 1977, at which time Kathleen Hill, who was born on February 14, 1960, was 17 years of age. Defendant filed an answer
denying the allegations of the complaint. The answer set forth as a separate defense that "[t]he plaintiff has failed to comply with the provisions of the Municipal Tort Claims Act N.J.S.A. Title 59 and is therefore barred from bringing this cause of action." Thereafter, plaintiffs answered defendant's interrogatories and defendant obtained an order compelling more specific answers to its interrogatories. These events transpired before Kathleen's 19th birthday. The parties then engaged in further discovery consisting of depositions and a physical examination. In August 1980, over 2 1/2 years after the complaint was filed, defendant brought a motion for dismissal based on plaintiffs' failure to comply with the notice requirements of the Tort Claims Act. The trial judge granted the motion and this appeal followed.
We agree with the trial judge's conclusion that there was no substantial compliance with the notice requirements of the act. In our view, however, the circumstances are such that defendant is equitably estopped from relying on the consequences of plaintiffs' failure to give notice.
The Tort Claims Act requires a claimant to file a claim notice in prescribed form with the public entity within 90 days after the accrual of the claim. N.J.S.A. 59:8-8(a). However, the time within which a child must give notice is tolled until after he reaches majority. A parent has the same period of time as his injured child in which to file a notice of claim for consequential damages. Rost v. Fair Lawn Bd. of Ed. , 137 N.J. Super. 76, 79 (App.Div.1975); Vedutis v. Tesi , 135 N.J. Super. 337, 340-341, 346 (Law Div.1975), aff'd o.b. 142 N.J. Super. 492 (App.Div.1976). The 90-day notice period may be extended in the discretion of the Superior Court to a maximum of one year following the accrual of the claim. N.J.S.A. 59:8-9. Recognizing that the purpose of prompt notice is "to expedite investigation with the hope of reaching nonjudicial settlement and to protect the public entity's access to current information about the incident giving rise to the claim," the courts have tended to
construe the discretionary power liberally in order to permit the disposition of claims on their merits where to do so would not compromise the basic objectives of the notice requirement. S.E.W. Friel Co. v. N.J. Turnpike Auth. , 73 N.J. 107, 118, 122 (1977). It is clear, however, that judicial discretion to extend the time for filing of the requisite notice does not survive the passage of one year following the accrual date of the claim. Speer v. Armstrong , 168 N.J. Super. 251, 255 (App.Div.1979).
If the present controversy arose, without more, only out of plaintiffs' failure to give notice, unaffected by other considerations, the foregoing principles would mandate dismissal of their suit. But that is not the case here. It is well settled that the notice requirements, being in the nature of limitations provisions, are subject to the application of estoppel principles. Hence, even if there is no substantial compliance with the notice provisions of the Tort Claims Act, a public entity will be estopped from asserting this defense "where the interests of justice, morality and common fairness dictate that course." Anske v. Palisades Park , 139 N.J. Super. 342, 348 (App.Div.1976). And see, also , so holding Fredrichsen v. City of Lakewood , 6 Cal. 3d 353, 99 Cal.Rptr. 13, 491 P. 2d 805, ...