On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication May 27, 1997.
Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Braithwaite, J.A.D.
The opinion of the court was delivered by: Braithwaite
The opinion of the court was delivered by
Plaintiff, Roberta Dunn, appeals from orders granting summary judgment to defendants Borough of Mountainside (Mountainside) and Thomas McCartney, dismissing her personal injury claims. She also appeals from an order denying her motion to amend her complaint to assert a legal malpractice claim against intervenors Ann L. Renaud and Ramp & Renaud (Renaud). *fn1
On the appeal from orders granting summary judgment, plaintiff and Renaud contend:
AS THIS MATTER INVOLVES THE APPEAL FROM FINAL SUMMARY JUDGMENT ORDERS, THE STANDARD OF REVIEW IS PLENARY.
PLAINTIFF'S NOTICE OF CLAIM AND COMPLAINT WERE FILED WITHIN TWO YEARS OF HER DISCOVERY THAT A BOROUGH OF MOUNTAINSIDE POLICE OFFICER HAD SEXUALLY ASSAULTED HER AND, THEREFORE, THE ORDERS GRANTING SUMMARY JUDGMENT TO DEFENDANTS BOROUGH OF MOUNTAINSIDE AND THOMAS McCARTNEY SHOULD BE REVERSED.
a. The Discovery Rule Is An Equitable Principle Which, Under Special circumstances and in the Interests of Justice, Will Toll the Expiration of Statutes of Limitations.
b. Application of the Discovery Rule to the Within Matter Warrants Reversal of the Orders Granting Summary Judgment to Defendants Borough of Mountainside and Thomas McCartney.
PLAINTIFF'S FAILURE TO FILE A FICTITIOUS NAME COMPLAINT DOES NOT CONSTITUTE A LACK OF REASONABLE DILIGENCE.
On the appeal denying her motion to amend her complaint, plaintiff asserts:
THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO AMEND BECAUSE THE ENTIRE CONTROVERSY DOCTRINE REQUIRED THAT THE MOTION BE GRANTED, THE LAW DIVISION CASE WAS STILL IN EXISTENCE AT THE TIME THE MOTION TO AMEND WAS FILED, AND SUCH MOTIONS SHOULD BE FREELY GRANTED IN THE INTEREST OF JUSTICE.
We affirm the summary judgment granted to Mountainside, reverse the summary judgment granted to McCartney, and reverse and remand for reconsideration of the order denying plaintiff's motion to amend in light of this opinion.
Plaintiff's version of events are set forth as follows. At or about midnight on May 17, 1991, plaintiff left her workplace, the Dancing Lady's Lounge, which is located on Route 22 in Green Brook, and drove east on Route 22 in her car. She stopped at a Dunkin' Donuts restaurant for approximately five minutes. Thereafter, she continued to drive east on Route 22 at "highway speed" for eight minutes when she was stopped by a police officer, who told her that she had been speeding. In 1994, McCartney was identified as the police officer.
McCartney asked plaintiff for her motor vehicle registration card. She produced an expired registration card and a temporary Florida driver's license and told McCartney that she did not have a New Jersey driver's license. McCartney told plaintiff that her Florida license was invalid and that she could not drive on that license without someone accompanying her. McCartney further stated that her car would have to be towed, and she would be stranded.
McCartney also told plaintiff that it was his duty either to take her to a motel or to the police station. She chose to go to the police station, but McCartney told her that "they wouldn't have any sympathy for [her] there." Plaintiff then asked if she could drive back to her place of employment and leave her car there. McCartney said he could not let her drive the car and again offered to drive her to a motel.
Plaintiff then asked McCartney to write the ticket, and she would prove in court that her Florida driver's license was valid. McCartney declined and said that plaintiff "would have to walk." Plaintiff began to cry.
As plaintiff was crying, two other officers drove up and asked McCartney if he needed any help. The two officers were driving the same type of patrol car as the one McCartney was driving. McCartney advised the officers that he did not need any assistance. Plaintiff believed that the officers referred to McCartney as "John."
McCartney asked plaintiff whether she was a barmaid or a dancer at the Dancing Lady's Lounge, and she told him that she was a dancer. McCartney then asked her if the dancers at that lounge still danced in the nude. She replied, "yes," and McCartney told plaintiff that he would like to see her dance.
McCartney then told plaintiff to follow him in her car, which she did. She thought about trying to get away, but she continued to follow McCartney because she was scared that he was a "maniac." She followed McCartney to a deserted parking lot behind a square, plain-looking building with a wooded area on one side of the lot. Plaintiff got out of her car in the parking lot and said to McCartney "please don't hurt me." McCartney responded angrily, "you think I'm some kind of weirdo, don't you? He later stated, "if you won't do this, I'll write you the summonses right now and take your car." Because she was alone with McCartney and felt that she had no other choice, plaintiff then said "no, I'll do it."
McCartney directed plaintiff to dance nude like she does at work. She did so for about three minutes but held her clothes so they covered her body while she danced. While she was dancing, McCartney asked her if dancing turned her on and commented that she was "in good shape for [her] age."
After she finished dancing, McCartney asked plaintiff if she ever thought about having sex with a police officer, and she told him that she had not. McCartney then asked her if she would have sex with him, and she again answered "no." McCartney told her that she should be grateful to him. Plaintiff replied that she was. Then McCartney asked, "well just a hand job?" Plaintiff again replied "no."
After imploring plaintiff to engage in sexual relations, McCartney took off his belt, took out his penis, and then sexually assaulted plaintiff. Thereafter, McCartney returned plaintiff's registration card and told her "you didn't have to do that, you know that." Finally, McCartney told her that "anytime you're in Green Brook you have carte blanche." Plaintiff got back in her car, and McCartney led her back to Route 22 east. McCartney then headed west on Route 22.
Plaintiff told her employer at the Dancing Lady's Lounge about the incident. Her employer reported the incident to the Green Brook Police. The next morning, plaintiff called a rape crisis center. At the suggestion of the Union County Rape Crisis Center, she contacted the Somerset County Prosecutor's Office to report the incident. She was subsequently ...