On appeal from Superior Court, Law Division, Mercer County.
Deighan and Brochin. The opinion of the court was delivered by Deighan, J.A.D.
The issue here is whether the trial court erred in dismissing the complaint of plaintiff Lester Small, an inmate of the Trenton State Prison, for a personal injury claim under the Tort Claims Act, N.J.S.A. 59:1-1 et seq. The complaint was dismissed for failure to file a notice of claim within 90 days and to file a complaint within two years of the date on which his cause of action accrued, as required by N.J.S.A. 59:8-8.
In 1983 plaintiff was sentenced to a 30-year prison term with 15 years parole ineligibility. On October 21, 1986, while incarcerated at the Trenton State Prison, plaintiff was injured as a result of plaster falling from the prison ceiling. Plaintiff immediately contacted his attorney, and on October 23, 1986, two days after the accident, the attorney sent a letter to the Commissioner of the Department of Corrections (DOC) and to the Superintendent of Trenton State Prison, advising them that
he represented plaintiff regarding the accident. The attorney requested permission to inspect the area of the prison where the accident occurred, to take photos and to obtain a sample of the debris. He also requested permission to have an expert examine the ceiling and debris and take his own photographs. His request was denied.
Subsequently, the trial judge entered two orders to show cause granting various items of relief and permitting plaintiff's attorney, his structural engineer and his photographer to inspect and photograph the area of the prison where the accident occurred. The trial court also entered an order permitting plaintiff to be examined by private physicians but denying all other relief sought.
Although the DOC had full knowledge of plaintiff's claim, no formal claim was ever filed. On December 20, 1988, more than two years after the accident, plaintiff filed a complaint under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., against the DOC for the injuries he sustained. In May 1989, in lieu of filing an answer, the DOC moved to dismiss the complaint, asserting that plaintiff did not comply with N.J.S.A. 59:8-8, which bars recovery against a public entity if a claimant fails to file a claim with that entity within 90 days of the accrual of his claim or fails to file a complaint within two years of that time. The DOC asserted that plaintiff's cause of action accrued on October 21, 1986 and that the claim was barred by N.J.S.A. 59:8-8 because plaintiff never filed a claim with the DOC and did not file a complaint until December 1988.
At the time of plaintiff's accident, N.J.S.A. 59:5-3 provided that:
No action shall be commenced by or on behalf of a prisoner against a public entity or public employee until such prisoner shall be released from institutional confinement.
On July 9, 1982, the United States District Court for the District of New Jersey in Holman v. Hilton, declared that N.J.S.A. 59:5-3 violated the Fourteenth Amendment because it deprived prisoners of minimally adequate procedures necessary
to protect the right of action. 542 F. Supp. 913 (D.N.J.1982), aff'd, 712 F.2d 854 (3rd Cir.1983). Accordingly, the statute was repealed by ...