On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Approved for Publication June 27, 1997.
Before Judges Michels and Muir, Jr. 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
Defendants Florence Township, Florence Township Police Department, and the Florence Township Police Officers appeal from an order of the Law Division that granted plaintiffs Richard I. Wood, Lois M. Wood, Lois Ann Wood Desideradio, Scott J. Wood, and Craig A. Wood, Administrator ad Prosequendum of the Estate of Richard I. Wood, III, Deceased, leave to file a late claim under the New Jersey Tort Claims Act concerning the death of Richard I. Wood, III (decedent).
Decedent was pronounced dead shortly after midnight on December 2, 1994, following a struggle with Florence Township police officers late in the evening of December 1, 1994. The incident which gave rise to this event stemmed from a motor vehicle stop which occurred on December 1, 1994, at approximately 10:45 p.m. in Florence Township. After Florence Township police officers stopped decedent, he attempted to elude them, ultimately abandoning his motor vehicle and running into his apartment at 17 West Fifth Street, Florence, New Jersey. What happened thereafter is in dispute. Plaintiffs claim that decedent died as a result of unreasonable force applied by the arresting officers. Florence Township and its arresting officers contend that they acted appropriately under all of the circumstances and that decedent had ingested a lethal dose of cocaine immediately before expiring.
On March 1, 1995, plaintiffs served a notice of tort claim upon Florence Township pursuant to the provisions of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 59:12-3. On the same day, Florence Township Administrator Richard A. Brook mailed a copy of Florence Township's official claims form adopted pursuant to N.J.S.A. 59:8-6 of the Act to plaintiffs' attorneys, which in part read:
Your claim will not be considered as filed and cannot be evaluated until you return the completed form and provide the information requested.
You should be aware of the fact that the New Jersey Tort Claims Act includes limitations on claims against public bodies and establishes time limits for the filing of those claims.
Notice of the claim against the public body generally must be filed within 90 days after the incident giving rise to the claim. No Notice of Tort Claim may be filed after the 90 day period unless there is an order from the New Jersey Superior Court allowing the late filing of a Notice of Tort Claim. Such an Order can be granted only within one year from the date of the incident and only where the Court determines that good cause exists to permit the late filing.
Plaintiffs did not complete and return the form. In fact, Florence Township did not receive any response to its letter or have any communication from plaintiffs until December 1, 1995, when plaintiffs moved in the Law Division for an order declaring that their previously filed and served notice of tort claim was "sufficient at law or in the alternative permitting [them] to file a late notice of claim in accordance with N.J.S.A. 59:8-9." Following argument, the trial court granted plaintiffs leave to file a late notice of claim reasoning, in part:
It is clear that the Township's adopted form was never used notwithstanding the claimant's notice of it. At the same time the Township has been on notice of this claim officially since March 1, 1995. While normally it is true that more than a year to prepare and file a specially adopted form would be unreasonable, given the circumstances of this case and the lack of clear guidance in the law on the issues raised herein I am inclined to permit the claimants now, an opportunity to answer the Township's interrogatories as completely as possible, file them by May 1, 1996, and require them to wait six months to file suit. In any event suite [sic] must be filed by December 1, 1996, if the claim is not settled before then.
We were informed at oral argument that plaintiffs have also instituted an action against Florence Township and others in the United States District ...