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Vasquez v. Rutherford

July 23, 2007

ELIEL VASQUEZ, PLAINTIFF,
v.
JASON RUTHERFORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hughes, U.S.M.J.

MEMORANDUM OPINION

This matter is before the Court upon the Motion of Plaintiff Eliel Garcia Vasquez ("Plaintiff") for Leave to File Late Claim. Defendant the State of New Jersey and New Jersey Department of Transportation ("State ") and Defendant City of Lambertville ("City") oppose the motion. Plaintiff's decedent was fatally injured when she was struck by a car in Lambertville, New Jersey in April 2006. In March 2007, Plaintiff filed a complaint alleging that a road defect might have contributed to the accident. Before filing the claim against the public entities, Plaintiff filed Notice of Claim pursuant to the New Jersey Tort Claims Act. In the present Motion, Plaintiff argues that he filed Notice of Claim within the statutory window of ninety days after accrual of the claim on January 31, 2007. Alternatively, Plaintiff argues that Notice of Claim was filed within one year after accrual of the claim due to extraordinary circumstances and therefore, should be considered timely filed. The Court reviewed the written submissions of the parties and conducted oral argument on July 19, 2007. For the reasons that follow, Plaintiff's Motion for Leave to File Late Claim is granted.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

On April 28, 2006, a 23 year-old citizen of Mexico, Marcela Martinez-Torres ("Ms. Torres"), was struck by a car driven by Jason Ruthenford when she was crossing Route 165 in Lambertville, New Jersey. (Pl.'s Br. at 1-2). On May 1, 2006, Ms. Torres died as a result of her injuries. Id. at 2.

On or around May 25, 2006, Plaintiff, who was a friend of Ms. Torres, contacted a law firm, Bergley, Carlin & Mandio, LLP ("Plaintiff's counsel"), regarding Ms. Torres's accident. Id. An unidentified New Jersey attorney subsequently advised Plaintiff to abandon the idea of filing a complaint on behalf of Ms. Torres's estate because Ms. Torres had been an undocumented alien. Id. Plaintiff's counsel made several unsuccessful attempts to contact Plaintiff, and on August 10, 2006 Plaintiff eventually reconnected with Plaintiff's counsel. Id. Plaintiff's counsel advised Plaintiff that Ms. Torres's estate might have a cause of action arising from her death without regard to her immigration status. Id. Around that time Plaintiff began to seek an appointment as Administrator of Ms. Torres's estate. Id.

Plaintiff had difficulty locating and contacting Ms. Torres's family in Mexico. Id. In January 2007, Plaintiff traveled to Mexico and obtained the official permission of Ms. Torres's parents to be a representative of Ms. Torres's estate. Id. Plaintiff returned to the United States in February 2007 and on February 20, 2007 he was officially appointed as Administrator of Ms. Torres's estate. Id.

On or around June 2, 2006 Plaintiff's co-counsel, New Jersey attorney S. Curtis Seifert ("Plaintiff's co-counsel"), was informed that a police accident report regarding Ms. Torres's accident ("police report") had been completed. Id. 2-3. Subsequently, Plaintiff's counsel and co-counsel made numerous unsuccessful attempts to obtain the police report from both the Lambertville Police Department and the Hunterdon County Prosecutor's Office. Id. Specifically, on June 7, 2006, Plaintiff's counsel received a letter from the Hunterdon County Prosecutor's Office which expressly refused to share any information with regard to Ms. Torres' accident. Id. at 3. On August 21, 2006 Plaintiff's co-counsel wrote a letter to the Hunterdon County Prosecutor's Office requesting the police report, and on September 7, 2006 he received a response that the police report could not be obtained. Id. Finally, on November 11, 2006 Plaintiff's counsel and co-counsel visited the Hunterdon County Prosecutor's Office, but no one was available to talk to them about Ms. Torres's accident. Id. According to the Hunterdon County Prosecutor's Office, the police report still was not available as of May 8, 2007 because the investigation of the accident had not been officially completed. (Def. State of N.J. Opp. Br. at 8).

On January 31, 2007 Plaintiff's counsel obtained an article that had been published in a local Lambertville newspaper on January 25, 2007. (Pl.'s Br. at 3). According to the article, a new traffic light was approved for installation in the vicinity of Ms. Torres's accident. Id. The article observed that over the past several years, numerous auto accidents had occurred near the site of Ms. Torres's accident. Id. at 3-4. The article quoted Lambertville Police Director Bruce Cocuzza who said that in 2005 ten percent of all accidents in Lambertville had occurred near the site where Ms. Torres was subsequently struck by a car. Id. at 4. The article also noted that Lambertville Mayor Del Vecchio had long been calling for road safety improvements at this site. Id. According to Plaintiff's counsel, it was the January 25, 2007 article that first put both Plaintiff and Plaintiff's counsel on notice that "a safety problem due to the design of the roadway" may have caused Ms. Torres's accident. Id.

On or around February 9, 2007, another newspaper article was published in the Trenton Times. Id. This article named Mr. Stefan Slaby as a witness to Ms. Torres's accident. Id. Previously, Plaintiff's counsel was not aware of any witness to Ms. Torres's accident. Id. According to the article, Mr. Slaby witnessed the accident as he stood outside his auto repair shop. Id. The article also attributed a statement to Mr. Staby that he had seen a lot of accidents in the area during sixteen years of conducting his business near the spot where Ms. Torres was struck. Id. According to the February 9, 2007 article, a new traffic light was recently installed near the site of Ms. Torres's accident, and Lambertville Mayor Del Vecchio had been trying for years to limit the speed of motor vehicles in the area. Id. at 4-5. Based on the information contained in the February 9, 2007 article, Plaintiff's counsel sent a private investigator to question Mr. Slaby. Id. at 5. Mr. Slaby stated that Ms. Torres was crossing Route 615 at the pedestrian crosswalk when she was struck by the car. Id. According to Mr. Slaby, there was no pedestrian warning sign at the site when Mr. Torres's accident occurred. Id.

Plaintiff's counsel states that neither Plaintiff nor Plaintiff's counsel had any information before January 31, 2007 that Ms. Torres was crossing Route 615 at the designated pedestrian crossing, or that the State and/or the City might have been negligent in designing the highway and/or intersection in the area where Ms. Torres was fatally struck and injured. Id.

B. Procedural History

On February 7, 2007, Plaintiff's counsel forwarded a Notice of Claim letter to both the City and the State. (Pl.'s Br. at 4). On March 23, 2007 Plaintiff filed a complaint against Jason Ruthenford, the State, and the City. (See Dkt. no. 07-1350, entry no. 1).

On May 11, 2007, Plaintiff filed a Motion to File Notice of Late Claim. (See Dkt. no. 07-1350, entries no. 5-8). Plaintiff argues that (1) Plaintiff's notice of late claim was provided within ninety days from the date of accrual of Plaintiff's claim in accordance with N.J.S.A. 59:8-8, or that alternatively, (2) Plaintiff is entitled to Notice of Late Claim in accordance with N.J.S.A. 59:8-9 because of the existence of extraordinary circumstances and because Defendants have not been substantially prejudiced. (Pl.'s Br. at 6-11). On the first point Plaintiff argues that the date of accrual of his claim against Defendants should be January 31, 2007 when Plaintiff's counsel first read the article describing Ms. Torres's accident and possibility of Defendants' involvement into the accident. (Pl.'s Br. at 6). On the second point, according to Plaintiff, the fact that neither the police report no any witnesses were available to him after the accident and that he had difficulties locating Ms. Torres's parents in Mexico constitute extraordinary circumstances justifying Notice of Late Claim. (Pl.'s Br. at 8-9).

On May 22, 2007, the City filed a Brief in Opposition to Plaintiff's Motion to File Notice of Late Claim. (See Dkt. no. 07-1350, entry no. 10). The City argues that Plaintiff failed to file Notice of Claim within ninety days after accrual of the claim and that Plaintiff failed to establish any extraordinary circumstances justifying Notice of Late Claim. (Def. City's Opp. Br. at 2). The City states that Plaintiff's failure to timely file Notice of Claim caused substantial prejudice and precluded the City from conducting proper investigation of Ms. Torres's accident. Id. at 9. Additionally, the City points out that the ...


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