This case addresses the issue of whether a Judge of the Law Division of the Superior Court may analyze the viability of a cause of action under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 - 59:12-3, and, on the basis of that analysis alone, deny leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
This Court finds that a trial Judge may deny leave to file a late notice of claim where the Judge concludes that the plaintiff fails to present a viable claim. Here, since the underlying cause of action asserted by the plaintiffs for counsel fees is not viable under the New Jersey Tort Claims Act, leave to file a late notice of claim is denied.
In August 1992, plaintiff Victor J. Tryanowski, who was a high school student at the time, attended a football camp run by the defendant Lodi Board of Education. On the evening of August 27, 1992, he and some other students attending the camp allegedly engaged in some activity that is akin to what is commonly known as "hazing". Specifically, Victor J. Tryanowski is alleged to have intentionally and criminally restrained another high school student attending the camp, covered him with offensive substances, and forcibly shaved his head (hereinafter "the incident").
As a result of his alleged conduct, this infant plaintiff, Victor J. Tryanowski, was named as a defendant in a complaint filed on July 29, 1993, in the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, and charged with violating N.J.S.A. 2C:13-2(a). The remaining plaintiffs, Victor Tryanowski and Mary Tryanowski, are the parents of the infant plaintiff. The remaining defendants are coaches and other employees of defendant Lodi Board of Education. This complaint was filed after more than a year had passed since the incident occurred.
At the time of the incident, it is alleged that only one agent or employee of the Lodi Board of Education was on the premises and that he was not present on the same dormitory floor where the incident occurred. Plaintiffs contend this absence amounted to negligent supervision on the part of the defendants and that the incident would never have occurred had the students been properly supervised.
The infant plaintiff and his parents now seek leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Plaintiffs allege that,
as a direct and proximate result of the negligent supervision on the part of the agents or employees of the Lodi Board of Education, the plaintiffs have sustained and will sustain in the future, monetary damages. The monetary damages alleged are the attorney's fees (and attendant costs) the plaintiffs have incurred and might incur in the future to defend against the juvenile complaint and any possible civil lawsuits stemming from the incident.
Subsequent to the filing of plaintiffs' motion for leave to file a late notice of claim, the infant plaintiff pled guilty to a violation of N.J.S.A. 2C:33-4 in a juvenile proceeding and that action is now completed. Thus, the plaintiff a' legal fees and costs for the criminal case have already been incurred and the only potential attorney's fees that plaintiffs could conceivably incur in the future would be in connection with the defense of a possible civil lawsuit which could be brought by the victim of the incident.
A. THE TRIAL JUDGE MAY ANALYZE THE VIABILITY OF A CAUSE OF ACTION UNDER THE NEW JERSEY TORT CLAIMS ACT AND DENY LEAVE TO FILE A LATE NOTICE OF CLAIM IF THE CLAIM IS NOT VIABLE
The New Jersey Tort Claims Act was enacted in 1972, as a mandate by the Legislature to bring uniformity to the law in this State with respect to sovereign immunity to tort claims enjoyed by public entities. The Act was necessitated by Willis, v. Dept. of Cons. & Ec. Dev., 55 N.J. 534, 264 A.2d 34 (1970), in which the Supreme Court abrogated the doctrine of sovereign immunity to tort claims, and thus the Act's purpose was to re-establish immunity for all public entities in New Jersey, on a basis more coherent and equitable then that which had obtained prior to Willis. Margolis and Novack, Claims Against Public Entities (1993), at ix.
The New Jersey Tort Claims Act requires that a notice of claim against any public entity be filed within 90 days after the accrual
of a cause of action or else that claim will be forever barred. See N.J.S.A. 59:8-8. However, under certain circumstances, a late notice of claim may be filed pursuant to N.J.S.A. 59:8-9, which states:
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. . . .
The comments to this section state:
The granting or denial of permission to file a late claim within the one year period is a matter left to the sound discretion of the trial Judge which will be sustained on appeal in the absence of ...