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Weingartner v. Township of Deptford

June 1, 2007

SARAH WEINGARTNER, SEAN WEINGARTNER AND GWENDOLYN WEINGARTNER, DECEASED, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
TOWNSHIP OF DEPTFORD, OFFICER MICHAEL TAYLOR, DEFENDANTS-RESPONDENTS, AND COUNTY OF GLOUCESTER, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-534-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2007

Before Judges Winkelstein and Fuentes.

On Wednesday, March 30, 2005, Sarah Weingartner, who was twenty-two years old and nearly eight months pregnant, was driving in Deptford Township (the Township) when she stopped to make a left-hand turn. Her vehicle was struck by a vehicle operated by Deptford Police Officer Michael Taylor, who was responding to a 911 call and was traveling approximately twenty-five miles per hour over the posted forty mile-per-hour speed limit. The accident caused plaintiff serious injuries, including the loss of her fetus.

Plaintiff's counsel filed a timely notice of claim, pursuant to N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act), with the Township. Plaintiff appeals from a June 23, 2006 order denying her motion for leave to file a late claim against the County of Gloucester, the public entity that operated the 911 call center. We affirm.

Following the accident, plaintiff remained in a coma until approximately April 18, 2005. On May 4, 2005, she was transferred to a rehabilitation hospital from which she was ultimately discharged on May 18, 2005. Among the injuries she sustained in the accident were pelvic fractures, a punctured diaphragm, a pierced liver, a fractured clavicle, and internal bleeding. Procedures performed on plaintiff included an emergency C-section, a tracheotomy, removal of her spleen, and multiple blood transfusions. The scar on her abdomen remained open for approximately six months.

Plaintiff suffered serious emotional harm as a result of her injuries and the loss of her fetus. She has "had suicidal thoughts many times due to the crash and the loss of [her] baby that resulted" from the crash. Plaintiff was depressed. She remained on anti-depressants for at least a year, and has had "several breakdowns."

As noted, plaintiff provided a timely notice of claim to Deptford Township. That notice, dated June 27, 2005, included the following information:

On March 30, 2005, at the intersection of Delsea Drive and Lexington Avenue, Deptford, NJ, claimant, Sarah Weingartner, received personal injuries under the following circumstances: claimant was on her way to morning bowling class held at Brunswick Lane. Claimant had her left turn signal on and was about to make a left hand turn into the complex when Officer Taylor smashed into her vehicle.

The notice made no mention of the 911 call or of Gloucester County as a potential defendant.

The notice was served upon the Township Clerk on June 28, 2005. According to a certification of the attorney who represented plaintiff at the time, the County was not served because counsel "believed, although mistakenly, that Deptford Township controlled the 911 Dispatch for Deptford Township's police department."

The county prosecutor and Township police department instituted an investigation of the accident. According to the accident report, based on a review of the police dispatch tape, the investigating officer, a police department captain, concluded that the police dispatcher may have been unfamiliar with the area of the call and "was not listening to the caller as intently as she should have." Consequently, Patrolman Taylor may have believed that the call was more serious than it actually was, and required a "code 3" response, including emergency lights and siren. The officer's mistaken belief that there was a serious emergency may have caused him to exceed the posted forty mile-per-hour speed limit by "as much as 25 MPH"; according to the police department investigation, his excess speed was the "main contributing factor" in the crash.

Newspaper articles immediately after the accident indicated that there was some question as to whether the officer was responding to an actual emergency. One such article said that ...


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