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Henderson v. Herman

December 23, 2004

JENNIFER L. HENDERSON, GENERAL ADMINISTRATRIX AND AD PROSEQUENDUM OF THE ESTATE OF JOHN TYLER HENDERSON, DECEASED, AND JOHN C. HENDERSON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JEFFREY HERMAN, M.D.; ROBERT S. SALSTON, M.D.; OLD BRIDGE-SAYREVILLE MEDICAL GROUP PA; SMITH, NIELSON; TOWNSHIP OF OLD BRIDGE; TOWNSHIP OF OLD BRIDGE POLICE DEPARTMENT; APRIL TAMULA; BILL LAMAROSA; ROB RAGAZZO RURAL METRO AMBULANCE SERVICE; MEDREQ2; ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL/ ST. PETER'S MEDICAL CENTER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 8591-03.

Before Judges King, R. B. Coleman and Holston, Jr.

The opinion of the court was delivered by: Coleman, R. B., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 17, 2004

Plaintiffs, the Estate of a deceased child John Tyler Henderson (J.H.) and J.H.'s parents, Jennifer and John Henderson, individually, appeal from three separate orders entered on July 23, 2004, granting partial summary judgment under the notice provisions of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 59:12-3. More particularly, two of the orders bar plaintiffs' claims against defendants Harold Smith and Jeanette Nielson, respectively, due to plaintiffs' failure to name them specifically in their notice of tort claim filed within ninety days as required by N.J.S.A. 59:8-8, and the third order dismisses plaintiffs' state law tort claims against defendants Old Bridge Township and Old Bridge Township Police Departments (collectively referred to as Old Bridge) due to plaintiffs' failure to complete a supplemental notice of claim form adopted by Old Bridge under N.J.S.A. 59:8-6.*fn1 We reverse and remand the matter for further proceedings.

Plaintiffs allege that on March 21, 2002, J.H., a minor two and one-half years old, suffered irreversible brain damage and cardiac and respiratory arrest due to the failure of police dispatch and emergency and transport personnel to respond appropriately to a 911 call. They further allege that such failure to respond appropriately was a proximate cause of J.H.'s death on April 12, 2002.

On March 28, 2002, one week after the incident, plaintiffs requested documents regarding the 911 response, but were informed 911 telephone tapes, radio tapes and dispatch tapes are generally recycled after thirty days and that release of such materials in discovery requires both an appropriate court order and payment of proper fee. Accordingly, on April 11, 2002, plaintiffs filed a verified complaint and order to show cause seeking to compel production of any and all 911 tapes, EMT records and documents pertaining to J.H. from March 21, 2002 and thereafter. On May 16, 2002, a consent order for the preservation and production of evidence was filed and, within two weeks, materials responsive to plaintiffs' request were released to plaintiffs.

On June 14, 2002, plaintiffs submitted a formal notice of claim to the Old Bridge Township Clerk and counsel for Old Bridge. The notice disclosed the date, place and circumstances of the occurrence giving rise to the plaintiffs' claim, stating:

On March 21, 2002, John Tyler Henderson, an infant, was caused to suffer irreversible brain damage, ultimately resulting in his death, due to the failure of police, dispatch and emergency medical and transport personnel to respond appropriately to a"911" call from Old Bridge Medical Group, 26 Throckmorton Lane, Old Bridge, NJ requesting emergent assistance.

The notice form asserted that the following public entities and public entity employees were involved:

A. Old Bridge Township, NJ, its agents, servants and/or employees, including, but not limited to, police dispatch and emergency medical and transport personnel;

B. Old Bridge Township Department of Public Safety, its agents, servants and/or employees, including, but not limited to, police dispatch and emergency medical and transport personnel;

C. Middlesex County, its agents, servants and/or employees, including, but not limited to, police dispatch and emergency medical and transport personnel;

D. Rural Metro Ambulance Service, its agents, servants and/or employees, including but not limited to dispatch and emergency medical and transport personnel;

E. Old Bridge First Aid and Rescue Squad, its agents, servants and/or employees, including but not limited to dispatch and ...


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