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Servis v. State

March 1, 1986

ELLEN M. SERVIS, AS ADMINISTRATRIX AD PROSEQUENDUM, AND AS ADMINISTRATRIX OF THE ESTATE OF NORMAN F. SERVIS, JR., AND ELLEN M. SERVIS, INDIVIDUALLY, PLAINTIFF,
v.
STATE OF NEW JERSEY AND COUNTY OF MONMOUTH, DEFENDANTS



Selikoff, J.s.c.

Selikoff

This matter comes before the court on motion for leave to file a notice of claim against the State of New Jersey, pursuant to the Tort Claims Act. N.J.S.A. 59:1-1 et seq.

On October 26, 1984, Norman F. Servis Jr., a representative supervisor in the Division of Inmate Advocacy, entered the grounds of the Monmouth County jail in order to inspect the facilities. During the course of this inspection, Mr. Servis suffered a tick bite. A few days later he became comatose and did not regain consciousness prior to his death on November 21, 1984.

Since her husband's death, Ellen Servis has been hospitalized on several occasions. During the first six months of 1985, Mrs. Servis was hospitalized and totally incapacitated by reason of a back injury. She was also hospitalized during the month of October 1985, due to cardiac problems.

The investigation of this matter was hampered by the uncertainty regarding the cause of death of Mr. Servis. Mrs. Servis did not receive the pertinent medical information concerning the actual cause of death until late September 1985. A report dated September 6, 1985 indicated that Mr. Servis had a history of a tick bite predating his fatal illness. At the same time, a report from the Department of the Public Advocate dated September 16, 1985 was received by Mrs. Servis. That report

indicated that the cause of death was a direct result of a tick bite received on October 26, 1984 during the normal course of employment. The report also confirmed an outbreak of tick disease in Monmouth County during the period of time Mr. Servis visited the Monmouth County jail.

On November 20, 1985, within two weeks of the retaining of counsel and the receipt by counsel of the relevant medical reports, Mrs. Servis filed this motion pursuant to N.J.S.A. 59:8-8 and -9. This motion was not made returnable until March 1, 1986 due to several adjournments to allow for the submission of briefs to the court.

Plaintiff seeks leave to file a notice of claim on her own behalf and on behalf of her infant child for damages sustained as a result of the death of her husband, Norman F. Servis, Jr. In support of the motion, plaintiff argues that the discovery rule is applicable here and that the cause of action did not accrue until September 16, 1985. Lopez v. Swyer, 62 N.J. 267 (1973). Therefore, the filing of the claim on November 20, 1985 allegedly put plaintiff within the 90-day period for filing tort claims against a public entity. N.J.S.A. 59:8-8.

Defendant State of New Jersey has no objection to plaintiff's request for leave to file a notice of claim on behalf of her infant child. Barbaria v. Sayreville Twp., 191 N.J. Super. 395 (App.Div.1983). However, defendant argues that plaintiff's action brought on her own behalf is barred by the Wrongful Death Act insofar as that act defines the accrual date as the date of death of the decedent. N.J.S.A. 2A:31-3. Hence, defendant asserts that the cause of action accrued on the date of Mr. Servis' death and plaintiff is therefore barred under the one-year limitation of N.J.S.A. 59:8-9.

The filing of a tort claim against a public entity is governed exclusively by the Tort Claims Act. Pressler, Current

N.J. Court Rules, Comment R. 4:5-4 (1986). N.J.S.A. 59:8-9 permits the filing of a late notice of claim within one year of the accrual of the claim subject to the discretion of the court. The term "accrued" is defined as the date on which the claim accrued, and "shall not be affected by the notice provisions contained herein." N.J.S.A. 59:8-1. It is therefore clear that the viability of plaintiff's cause of ...


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