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Serrano v. Gibson

September 23, 1997

MARIA AND SOLY SERRANO, PLAINTIFFS-APPELLANTS,
v.
JOHN C. GIBSON, DEFENDANT-RESPONDENT, AND EDGAR SERRANO AND JOHN DOE (NAME BEING FICTITIOUS), DEFENDANTS.



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

Approved for Publication September 24, 1997.

Before Judges Pressler, Conley and Wallace. The opinion of the court was delivered by Conley, J.A.D.

The opinion of the court was delivered by: Conley

The opinion of the court was delivered by

CONLEY, J.A.D.

In Chatman v. Hall, 128 N.J. 394, 419-20, 608 A.2d 263 (1992), the Supreme Court reaffirmed that the ninety-day notice requirement of the Tort Claims Act was not applicable to claims against public employees. See Williams v. Adams, 189 N.J. Super. 196, 198-99, 459 A.2d 707 (Law Div. 1983); Lutz v. Semcer, 126 N.J. Super. 288, 300, 314 A.2d 86 (Law Div. 1974). Effective June 23, 1994, N.J.S.A. 59:8-3 and N.J.S.A. 59:8-8 were amended to subject such claims to that notice requirement. L. 1994, c. 49, §§ 2, 4 (1994 amendments). *fn1 As stated in the accompanying Senate Judiciary Committee's Statement, the amendments were "intended to reverse the Chatman ruling. . . ." Plaintiffs' negligence claim here arises from an automobile accident involving a Township of Hillside snow plow operated by a township employee. The accident occurred before the 1994 amendments. Suit against the public employee was filed within the two-year statute of limitations but after expiration of the ninety-day notice requirement. The complaint was ultimately dismissed for failure to comply with N.J.S.A. 59:8-8, as amended. The issue before us is whether the 1994 amendments apply retroactively to plaintiffs' cause of action. We conclude they do not and reverse.

The procedural posture of the issue is somewhat complicated by plaintiffs' failed attempt to sue the township. The accident occurred on February 11, 1994. At that time, plaintiffs were passengers in a vehicle driven by Edgar Serrano. The other vehicle was the township's snow plow which defendant Gibson was operating in the course of his employment. Although the record is less than clear, it seems that a month or two after the expiration of the ninety-day notice period, plaintiffs' attorney attempted to file a complaint against both the township and Gibson. It is not clear whether a complaint was actually filed. It may have been attached to plaintiffs' motion to file a late notice of claim that was filed in June or July of 1994. That motion was denied as to the township and an order to that effect was filed July 26, 1994. We are told that counsel's subsequent motion for reconsideration was denied by the motion Judge on September 9, 1994. The record before us contains neither that motion nor an order denying it. In any event, counsel did not appeal the denial of his motion to file a late notice.

On January 31, 1996, plaintiffs filed a new complaint against both the driver of the vehicle in which they were passengers, Edgar Serrano, and Gibson. *fn2 The township was not a party. In granting defendant Gibson's motion to dismiss based upon N.J.S.A. 59:8-8, the motion Judge seems to have considered both the 1994 amendments and the prior unsuccessful attempt to file a late claim against the township. As to the amendments, she said: "I think it's very clear that they were seeking to shore this up or plug this up, . . . and to allow this action to now be brought after the passing of that legislation, doesn't make sense. . . ." When counsel queried whether this analysis was premised upon a Conclusion that the 1994 amendments applied retroactively to claims that had accrued prior to its effective date, the court said:

I have no idea, you know, what you actually said. I'm just telling you that as far as I'm concerned that this case is dismissed with prejudice. I'm satisfied that it was the intent of the Legislature not to allow actions based upon the circumstances of this case to move forward where you've already filed a notice of intention -- or a request to be able to file a late notice of intention against the municipality and the employee, and requested a hearing before the court under some procedure which I do not understand, which occurred in '94, before Judge Hague, where Judge Hague ruled that the matter was out of time and that the matter could not move forward.

And, I don't know exactly what you call what it is that happened, but nevertheless, I'm satisfied that that precluded this matter from moving forward at this time, when I take it together with the legislative intent as expressed in the Statute which was enacted in June of '94, and therefore I am dismissing.

[Emphasis added.]

We disagree. First, we do not believe the prior procedural posturing as to the township has any impact upon plaintiffs' complaint against Gibson. Second, and more importantly, we do not believe the 1994 amendments apply retroactively so as to preclude a claim against a public employee that had accrued prior to June 23, 1994.

At the outset, we suspect that the motion Judge's application of the amendments to plaintiffs' January 1996 complaint may have been premised upon the general notion that courts will apply the law in effect at the time of a decision. Phillips v. Curiale, 128 N.J. 608, 615-16, 608 A.2d 895 (1992); Parsippany Hills Ass'n v. Rent Leveling Bd. of Parsippany Troy Hills Tp., 194 N.J. Super. 34, 476 A.2d 271 (App. Div.), certif. denied, 97 N.J. 643 (1984). Plaintiffs' cause of action accrued on the day of the accident and, hence, under the law as it then existed. Applying the law in effect as of the motion decision, therefore, results in a retroactive application of the new law.

It is well settled, however, that retroactive applications of changes in the law are not generally favored. Phillips v. Curiale, (supra) , 128 N.J. at 615; Gibbons v. Gibbons, 86 N.J. 515, 521, 432 A.2d 80 (1981) ("it is a fundamental principle of jurisprudence that retroactive application of new laws involves a high risk of being unfair." Id. at 522). "There is general consensus among all people that notice or warning of the rule should be given in advance of the actions whose effects are to be Judged by them. The hackneyed maxim that everyone is held to know the law, itself a principle of dubious wisdom, nevertheless presupposes that the law is at least ...


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