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Madej v. Doe

Decided: January 27, 1984.

ANN MADEJ AND EDWARD MADEJ, HER HUSBAND, PLAINTIFFS,
v.
JOHN DOE (A FICTITIOUS PERSON TRADING AS JOHN'S TEXAS WEINERS), RICHARD ROE (A FICTITIOUS PERSON), FIGOLIA INC. CORPORATION, LIGHTING ELECTRIC COMPANY, CITY OF NEWARK, COUNTY OF ESSEX, STATE OF NEW JERSEY AND THE "X" INC. CORPORATION, A FICTITIOUS NEW JERSEY CORPORATION, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

This is a motion for summary judgment by defendant, State of New Jersey, to dismiss the complaint and all cross-claims brought against it and a motion for summary judgment by defendant, City of Newark, to dismiss a per quod claim against it. The issues are whether a notice of claim "against the City of Newark" that makes no mention of the State, which is served both upon the City and the State, constitutes a valid notice of claim against the State and whether a notice of claim must be filed by a spouse of the injured claimant for the spouse to recover a per quod claim.

This action arises out of an alleged slip and fall on a sidewalk in Newark by plaintiff Ann Madej, and subsequent injuries allegedly suffered by her due to the fall. In the complaint, plaintiff is joined by her husband, Edward Madej, as plaintiffs against the City of Newark, County of Essex, State of New Jersey, Figolia Inc. Corporation and other defendants, alleging negligent maintenance of the sidewalk. The only defendant that has answered is the State.

A notice of claim was duly filed by plaintiff Ann Madej against the City on December 9, 1981, within the 90 days required by law. N.J.S.A. 59:8-8. In response to the question on the form notice of claim requesting the name and address of each State agency and each State employer who caused the claimant's damages or injuries, plaintiff Ann Madej stated:

City of Newark and/or its representatives, agents, servants and/or employees responsible for construction and/or maintenance of the new sidewalk at the

premises known as John's Texas Weiners, a commercial establishment corner of Washington Street & Branford Place, Newark, New Jersey.

No notice of claim was ever filed by plaintiff Edward Madej nor was his name ever mentioned as being the husband of plaintiff Ann Madej until the complaint was filed in this matter on September 30, 1983.

The attorney for Ann Madej, by correspondence dated November 29, 1981, which was received on December 10, 1981, sent the State what appears to be a copy of the notice of claim filed with the City. The Attorney General by a letter dated January 29, 1982, responded to this correspondence by stating:

A review of your notice indicates quite clearly that the claim is against a local public entity and does not involve the State of New Jersey or any of its agencies.

There is no need to put the Attorney General on notice relative to this claim or correspond with this office.

The only time the State of New Jersey or the Attorney General's office is involved in claims under the New Jersey Tort Claims Act is when a claim is being made against the State, one of its agencies or a State employee. May we refer you to the definition of State, which is contained in N.J.S.A. 59:1-3.

The attorney for plaintiff never responded to this letter from the Attorney General.

The City opposes the State's motion, except as it relates to the per quod claim. Defendant Figolia Inc. Corporation objects to the State's motion that seeks to have "all cross-claims dismissed against it with prejudice." Plaintiffs have filed no opposing papers.

PER QUOD CLAIM

Both the State and the City contend that the plaintiff Edward Madej failed to comply with the notice provisions of the Tort Claims Act, as he did not file a separate per quod notice of claim. Their contention is that Edward Madej failed to file a notice of claim separate and apart from his wife's claim (nor was his name mentioned in his wife's ...


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