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O'Neill v. City of Newark

October 14, 1997

DANIEL J. O'NEILL, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY AND NEW JERSEY TRANSIT, DEFENDANTS-RESPONDENTS.



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

Approved for Publication October 17, 1997.

Before Judges Shebell, D'Annunzio and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

On June 18, 1996, plaintiff, Daniel J. O'Neill, filed a Notice of Motion in the Law Division for Leave to File Late Notices of Claim under the Tort Claims Act against the defendants, City of Newark ("Newark"), New Jersey Transit ("Transit"), and the University of Medicine and Dentistry of New Jersey ("UMDNJ"). *fn1 The motion was opposed and on August 12, 1996, the Law Division Judge entered an order denying plaintiff's motion. The motion was decided without oral argument, even though plaintiff had requested it. On August 27, 1996, plaintiff moved for reconsideration. On September 27, 1996, oral argument was held and thereafter the Judge denied plaintiff's motion. Plaintiff appeals.

Plaintiff was a Transit Police Officer. On August 3, 1995 at around 11 p.m., he and another officer were investigating several thefts in Newark when they observed a door slightly ajar at the side entrance to an auto body shop located at 335 Orange Street, the site of prior thefts. The locks on the door had been cut off. They entered the building and observed two vehicles and several car parts. Hearing noises coming from the upper level, they went up the stairs and entered a room where they observed additional vehicle parts.

The officers believed that they had discovered a "chop shop" and were going to report it when they saw another door and decided to investigate. Entering the room, they saw more auto parts. Suddenly, a barking dog ran at them. They retreated, and as they ran down the staircase with their weapons drawn the staircase collapsed. As a result, plaintiff was hit in the back of his right thigh by a round discharged from one of the weapons. Plaintiff was unable to walk, so the other officer carried him to their vehicle.

Numerous Transit officers, Newark police officers, EMS personnel, and investigators from the Essex County Prosecutor's Office converged upon the scene. During the investigation at the scene, Marcel Saucedo was identified as the owner of the property and the dog. News accounts of the accident appeared in the August 4 and 5, 1995 editions of The Star-Ledger.

Plaintiff was brought to the trauma unit of UMDNJ, where he was admitted for a gun shot wound of his right thigh. He was diagnosed with a right common peroneal nerve injury. He lost neurological function in his leg as a result of the nerve damage. The only treatment he received at UMDNJ was the cleaning and dressing of his wound, and he was discharged within hours. The bullet remained lodged against his pelvis.

Plaintiff's follow-up appointment at UMDNJ was canceled by the Transit's rehabilitation nurse overseeing his treatment, who scheduled another appointment with a different doctor. As his specialty was proctology, this doctor instructed plaintiff to have Transit schedule an appointment with a neurologist.

On August 22, 1995, nineteen days after the accident, plaintiff was examined by a neurologist who noted there was no response or motor activity in plaintiff's right leg. The neurologist concluded there was evidence of a right distal sciatic nerve injury and recommended that a follow-up study be conducted in six to eight weeks. On September 12, 1995, the neurologist noted that there was no change in plaintiff's condition and that exploratory surgery and an MRI scan of the right thigh might be needed. On September 19, 1995, an instructor in clinical neurological surgery at Columbia University School of Medicine also recommended surgery. Plaintiff next had a consultation with a neurosurgeon in New Jersey who agreed that there was damage to the common peroneal nerve and that the recommended nerve repair be performed by microsurgery. On October 9, 1995, plaintiff underwent surgery at Morristown Memorial Hospital. The surgeon discovered that the peroneal nerve was divided high in the thigh just beneath the lower margins of the gluteus. The damage was repaired and plaintiff was released from the hospital on October 13, 1995. He was fitted with a leg brace to wear 24 hours a day. Additionally, he was not allowed to shower and for three months was required to use a portable commode.

On December 26, 1995, plaintiff had a follow-up appointment with his surgeon who noted no change in his neurological condition and that none could be expected so soon after the surgery. The surgeon recommended that the brace be adjusted periodically to increase the leg's mobility and that physical therapy be started to build up plaintiff's quadricep muscle. He was confined to his home until January 1996, with the exception of visits for medical treatment.

On January 15, 1996, plaintiff contacted a law firm seeking legal representation. On January 17, 1996, plaintiff was interviewed by the firm. However, the 90-day statutory period to file a Notice of Claim against the ...


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