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Ohlweiler v. Township of Chatham

May 17, 1996

TERESA A. OHLWEILER, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF CHATHAM, DEFENDANT-APPELLANT.



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

Approved for Publication May 17, 1996.

Before Judges Shebell, Stern and Newman. The opinion of the court was delivered by Newman, J.A.D.

The opinion of the court was delivered by: Newman

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

Defendant Township of Chatham appeals from an order granting plaintiff leave to file a late notice of tort claim under N.J.S.A. 59:8-9. Defendant argues that plaintiff failed to show "sufficient reasons constituting extraordinary circumstances" under N.J.S.A. 59:8-9 for not filing a notice within 90 days of her accident. We disagree and affirm.

On September 30, 1994, plaintiff Teresa A. Ohlweiler, a public school teacher in Chatham, took a group of students on a tour of the sewage disposal system owned and operated by defendant. During the tour, plaintiff fell into an "uncovered manhole" in the driveway. She sustained what appeared to be a moderate and transitory injury. She went to the hospital, was examined and was released. She remained out of work for four days.

On October 10, 1994, a "Supervisor Accident Investigation Report" was completed by the workers' compensation insurance administrator for plaintiff's employer, the School District of Chatham. It described plaintiff's injury as "sprained knee and contusion -- left knee." On November 8, 1994, plaintiff, still having some pain and swelling in her knee, saw Dr. Masur, an orthopedist. Plaintiff was x-rayed. No fracture or other structural defect was shown on the x-ray. Dr. Masur asked her to return in one month.

On December 6, 1994, plaintiff consulted with an attorney, Ronald Bronstein (Bronstein), a workers' compensation specialist with the law firm of Nusbaum, Stein, Goldstein & Bronstein, P.A. regarding her fall. Bronstein referred her to his partner, Lewis Stein (Stein), a certified civil and criminal trial practitioner who specialized in personal injury law. On December 7, 1994, plaintiff telephoned for an appointment with Stein and described her injury as "bruised knee and severe contusion to lower leg". Stein certified that subsequent "consultation [with plaintiff] suggested that this was a matter that would not warrant the making of a claim or pursuing a cause of action under N.J.S.A. 59:8-8" of the Tort Claims Act. Mr. Stein continued,

added to this consideration was the fact that the plaintiff was an employee of another governmental agency within the municipality, namely the Board of Education, and there was some sensitivity to bringing a meaningless claim against another public agency in the same community, namely the township governing body. Therefore a decision was made not to undertake a claim against the municipality and no file was opened in this office in connection with a potential negligence action pursuant to N.J.S.A. 59:8-8.

On December 23, 1994, plaintiff again saw Dr. Masur. He diagnosed a "severe bruise" and ordered a bone scan since the knee condition appeared to have worsened. 90 days from the date of plaintiff's accident passed on December 29, 1994. On January 11, 1995, plaintiff informed her attorney about the results of the December 23 visit to Dr. Masur. On February 17, 1995, a bone scan was performed on plaintiff. Plaintiff was advised on February 28, 1995 that she had a severe bone bruise and torn cartilage in her knee.

On March 3, 1995, plaintiff, through counsel, forwarded a notice of intention to make a claim to defendant. Plaintiff's attorney said that this was done "in light of the circumstances which now indicate that plaintiff was in fact injured and that she suffered more than a transitory contusion and sprain".

In an April 11, 1995 letter, defendant's insurer denied plaintiff's claim because her notice was not filed within 90 days of the accident.

On July 20, 1995, plaintiff filed a motion for permission to file a late notice of ...


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