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Beauchamp v. Amedio

June 08, 2000

LYNNE BEAUCHAMP, PLAINTIFF-APPELLANT, AND TIMOTHY BEAUCHAMP, PLAINTIFF,
v.
FRANK J. AMEDIO AND NEW JERSEY TRANSIT CORP., DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Long, J.

Argued March 27, 2000

On certification to the Superior Court, Appellate Division.

The facts of this case are uncontested. On March 15, 1997, a New Jersey Transit bus driven by Frank Amedio rear-ended Lynne Beauchamp's car as she drove around a traffic circle on Route 130 in Collingswood, Camden County. Approximately two weeks after the accident, on April 1, 1997, Beauchamp visited Dr. Michael Ellin, a chiropractor, complaining of neck, shoulder, and lower back pain, as well as headaches, all of which began at the time of the accident. After the initial visit, Dr. Ellin indicated that the permanency of Beauchamp's injuries was "undetermined."

Beauchamp then contacted an attorney who consulted with Dr. Ellin to ascertain whether Beauchamp's injuries would qualify her for non-economic damages in a suit against the State under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:13-10. On April 8, 1997, the attorney received Dr. Ellin's initial prognosis indicating that the permanency of Beauchamp's injuries was "undetermined." Two weeks later, Beauchamp underwent a second evaluation by Dr. Ellin, with the same prognosis. Based on those two reports, the attorney advised Beauchamp not to file a notice of claim under the Act because her injuries did not appear serious enough to satisfy the permanency requirements necessary to recover non-economic damages. N.J.S.A. 59:9-2(d).

Because her symptoms did not abate, Beauchamp continued to visit Dr. Ellin over the next several months. On September 30, 1997, Dr. Ellin indicated that Beauchamp's condition was "guarded." Based upon that report, her attorney again asked Dr. Ellin whether he believed any of Beauchamp's injuries were permanent.

On October 28, 1997, Dr. Ellin reported to the attorney that Beauchamp's Magnetic Resonance Image (MRI) revealed that she had bulging discs in her cervical spine that would "not heal to their original condition." In addition, an Electromyelogram (EMG) indicated "left cervical radiculopathy" (nerve damage to the neck). Based on Dr. Ellin's report, on December 17, 1997, nine months after the accident, the attorney submitted a notice of claim to the State of New Jersey, New Jersey Transit, Camden County, and Collingswood Borough. On the same day, he filed a motion seeking an order permitting a late filing under N.J.S.A. 59:8-9. After some procedural missteps, the trial court denied the motion on the ground that Beauchamp had failed to establish extraordinary circumstances:

The fact that she had increasing severity in her symptomatology or condition, that doesn't and didn't prevent her from initially filing . . . a notice of tort claim within time. It doesn't require her to do anything. It doesn't require her to file any complaint. It's . . . a notice to the State that a claim may be made. For those reasons, the motion is denied.

Beauchamp filed a notice of appeal. The Appellate Division ordered a limited remand to allow her to present a new report from Dr. Ellin that indicated permanent damage. Again, however, the trial court denied the motion and the Appellate Division affirmed in an unreported opinion. Beauchamp filed a petition for certification, which we granted. 162 N.J. 197 (1999). On appeal, she argues that the lower courts erred in refusing to allow her to file a late notice of claim.

I.

In 1972, in response to the judicial abrogation of sovereign immunity in Willis v. Department of Cons. & Econ. Dev., 55 N.J. 534, 540 (1970), the Legislature enacted the Tort Claims Act, N.J.S.A. 59:1-1 to 59:13-10. The overall purpose of the Act was to re-establish the immunity of public entities while coherently ameliorating the harsh results of the doctrine. N.J.S.A. 59:1-2. Thus, although public entity immunity is the theme that permeates the statute, it also details certain acts and omissions for which a public entity or a public employee may be held liable in damages. N.J.S.A. 59:2-1 to 59:7A-1. No damages, however, may be awarded in a tort claims action for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. [N.J.S.A. 59:9-2].

Chapter Eight of the Act establishes the procedures by which claims may be brought against a public entity for death, injury or damage sustained by any person. "Injury" is defined in N.J.S.A. 59:1-3 as "injury to a person . . . that would be actionable if inflicted by a private person." Further, the procedural requirements of Chapter Eight establish the time limitation for filing a "claim relating to a cause of action for death or for injury or damage to person or to property." N.J.S.A. 59:8-8. Such a claim shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of 6 months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9[.] [N.J.S.A. 59:8-8 (footnote omitted).]

Although N.J.S.A. 59:8-1 does not define the date of accrual in any significant way *fn1 , the comment to that section states that "[i]t is intended that the term accrual of a cause of action shall be defined in accordance with existing law in the private sector." Harry A. Margolis & Robert Novack, Claims Against Public Entities, 1972 Task Force Comment to N.J.S.A. 59:8-1, (Gann 2000). Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs. Tortorello v. Reinfeld, 6 N.J. 58, 65 (1959); Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. Div. 1972); Lutz v. Semcer, 126 N.J. Super. 288, 297 (Law Div. 1974), superseded by statute on other grounds noted by, Serrano v. Gibson, 304 N.J. Super. 314, 315-16 (App. Div. 1997). Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place. Fuller v. Rutgers, The State University, 154 N.J. Super. 420, 423 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978); Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 326 (Law Div. 1976); see also Office of the Governor, News Release of William T. Cahill at 1 (June 1, 1972) (stating that under Act, claims against state "must be filed within 90 days after the time of the alleged incident."). Obviously, that coincides with the accrual date for a claim for property damage and damage such as wage loss. N.J.S.A. 59:8-8.

The only exception to that well established notion of accrual is the case where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 144-45 (1988)(recognizing applicability of discovery rule); Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987)(noting that discovery rule "tolls the statute until the victim discovers both the injury and the facts suggesting that a third party may be responsible."); Lopez v. Sawyer, 62 N.J. 267, 274 (1973)("[I]t seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court ...


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