Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Escalante v. Township of Cinnaminson

August 1, 1995

LOUIS ESCALANTE, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF CINNAMINSON, CINNAMINSON MEMORIAL PARK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

Approved for Publication August 1, 1995.

Before Judges Michels, Stern and Keefe. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by MICHELS, P.J.A.D.

Defendant Township of Cinnaminson (the Township) appeals from an order of the Law Division granting plaintiff Louis Escalante permission to file a late notice of claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (the Act). *fn1

Plaintiff claims that on April 4, 1993, he suffered personal injuries while playing basketball at Cinnaminson Memorial Park, public property owned and maintained by the Township. Plaintiff claimed that a depression in the asphalt of the court caused him to fall and injure himself. Since the Township is a public entity within the definition of the Act, plaintiff was required to present a notice of his claim for his alleged personal injuries within ninety days after the accrual of his cause of action. See N.J.S.A. 59:1-3 and N.J.S.A. 59:8-8. Plaintiff failed to do so.

The record shows that it was not until November 24, 1993, approximately seven months after the April 4, 1993, accident, that plaintiff consulted an attorney about his claim. Thereafter, on February 1, 1994, approximately nine months after the accident, plaintiff filed an application with the Law Division, seeking permission to file a late notice of claim against the Township pursuant to the Act. The Township opposed the application, and following a hearing the trial court granted plaintiff's motion, finding that plaintiff presented sufficient reasons to allow the late filing and that the Township would not be substantially prejudiced by allowing the late filing. Defendant appealed.

Defendant seeks a reversal of the order, contending that the trial court abused its discretion in finding plaintiff's ignorance constituted sufficient reason to allow a late filing of the claim, and that it would not be substantially prejudiced by allowing the late filing. We agree and reverse.

The New Jersey Tort Claims Act, which became effective on July 1, 1972, addresses sovereign immunity with respect to tort claims against public entities. The 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 that claim will be forever barred. See N.J.S.A. 59:8-8. "The rationale underlying the notice requirement of the Act is to expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Pilonero v. Township of Old Bridge, 236 N.J. Super. 529, 533, 566 A.2d 546 (App. Div. 1989). Under certain circumstances, however, 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 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 a showing of an abuse thereof. See Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146, 543 A.2d 443 (1988); Kleinke v. City of Ocean County, 147 N.J. Super. 575, 579, 371 A.2d 785 (App. Div. 1977); McGrath v. N.J. Dist. Water Supply, 224 N.J. Super. 563, 577, 540 A.2d 1350 (Law Div. 1986). An application for late filing is generally viewed with great liberality so that wherever possible, cases may be heard on their merits. Kleinke, supra, 147 N.J. Super. at 579. Additionally, any doubt as to the sufficiency of the reasons to excuse the late filing should be resolved in favor of the claimant. See Dyer v. Newark, 174 N.J. Super. 297, 300, 416 A.2d 429 (App. Div. 1980); McGrath, supra, 224 N.J. Super. at 579.

Permission for a claimant to file late is contingent upon two showings being made. First, the trial court must find that there are sufficient reasons for the claimant's failure to file within the 90 day period required by N.J.S.A. 59:8-8a. See Lamb, supra, 111 N.J. at 146; Lutz v. Township of Gloucester, 153 N.J. Super. 461, 463, 380 A.2d 280 (App. Div. 1977); Zwirn v. County of Hudson, 137 N.J. Super. 99, 102, 347 A.2d 822 (Law Div. 1975). Second, the trial court must decide that the public entity will not be substantially prejudiced by the granting of the request. See Lamb, supra, 111 N.J. at 146; McGrath, supra, 224 N.J. Super. at 576; Zwirn, supra, 137 N.J. Super. at 102.

"Because the Act is silent about what constitutes 'sufficient reasons' for failure to file a timely notice of claim, each case must be determined on the basis of its own facts." Lamb, supra, 111 N.J. at 147. Our courts have found "sufficient reasons" exist where there has been excusable neglect or mistake, see Kleinke, supra, 147 N.J. Super. at 580; Zwirn, (supra) , 137 N.J. Super. at 102-03; where the claimant has suffered serious physical injuries and/or is out of state, see Kleinke, supra, 147 N.J. Super. at 578; Marino v. City of Union City, 136 N.J. Super. 233, 241, 345 A.2d 374 (Law Div. 1975); and where the late filing existed due to the complexity of the litigation. See Torres v. Jersey City Medical Center, 140 N.J. Super. 323, 327, 356 A.2d 75 (Law Div. 1976).

Ignorance of the 90-day statutory requirement, ignorance of one's rights or mere ambivalence by the claimant have never been found to be sufficient reasons on their own to allow late filing. See, e.g., Abel v. City of Atlantic City, 228 N.J. Super. 360, 367-68, 549 A.2d 894 (App. Div. 1988), certif. denied, 114 N.J. 477 (1989); Township of Gloucester, supra, 153 N.J. Super. at 466-67 ("mere ambivalence about prosecuting a claim is no excuse and no reason for relief."); Lutz v. Semcer, 126 N.J. Super. 288, 297, 314 A.2d 86 (Law Div. 1974) ("mere ignorance of the law is not a sufficient basis to excuse compliance with the requirements of this remedial statute."). However, ignorance of the statutory requirement may be a relevant consideration in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.