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Bauman v. Gwin

October 12, 2007

COLLEEN BAUMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER BAUMAN, DECEASED, PLAINTIFF-RESPONDENT,
v.
DAISY GWIN, JEREMY BAUMAN, DOWN ON MAIN STREET TAVERN, BOROUGH OF GLASSBORO, AND GLASSBORO POLICE DEPARTMENT, DEFENDANTS, AND COUNTY OF GLOUCESTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1286-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2007

Before Judges Lintner and Sabatino.

The County of Gloucester (County), appeals from a Law Division order granting the motion of plaintiff,*fn1 Colleen Bauman, individually and as Administratrix of the Estate of Christopher Bauman, to amend a timely Notice of Tort Claim filed on behalf of the Estate. The County contends that its Notice of Appeal was filed as a matter of right pursuant to R. 2:2-3(a)(3). We disagree and dismiss this appeal as improvidently filed.

On August 18, 2005, Christopher Bauman (Christopher) was involved in a motor vehicle accident in Glassboro that resulted in his death and the deaths of Jeremy Bauman and Daisy Gwin. At the time of the accident, Christopher was riding as a passenger on Jeremy's motorcycle, which was involved in a collision with Gwin's car at the intersection of Higgins Drive and Ellis Street. Gwin had been traveling on Higgins Drive, a municipal road controlled with a stop sign. Ellis Street is a county roadway. Because all the individuals involved in the accident died, there were no known eyewitnesses.

Christopher's parents, as representatives of his estate, filed Notices of Tort Claim, on October 10, 2005, with Gloucester County, Glassboro, and the Glassboro Police Department. The notices set forth that the accident occurred on August 19, 2005, at the intersection of Higgins Drive and Ellis Street. They described the occurrence as "Claimant sustained a fatal injury as result of an unlawful police chase." They also set forth that the injury suffered was death and that the public entities responsible were the County of Gloucester, Borough of Glassboro, Glassboro Police Department, "[a]nd any entity and/or independent contractor performing services on [their] behalf." The notices also listed the address of each entity and stated that "[d]amages are unliquidated, but plaintiff seeks compensatory damages."

Glassboro, through its claims agency, requested the Estate to fill out a specific claim form, N.J.S.A. 59:8-6, requesting additional information. On November 15, 2005, the Estate filled out the form, indicating that the accident occurred on August 18, 2005, its location, and approximate time, there were no known witnesses, the injury was death, and that it had been advised by the Glassboro Police Department that the police report was not complete because of an ongoing investigation by the prosecutor's office. Where asked if the injury is claimed to have been caused by "a dangerous condition of property under control of the public entity," the estate answered "[u]nlawful police chase."

Plaintiffs retained a private investigator, Kerry B. Tucker, to inquire into the circumstances surrounding the accident. Tucker submitted an affidavit on September 19, 2006. After surveying the scene, Tucker stated that the "stop sign on the northwest corner of Higgins Drive . . . is approximately 25' 10" from the intersection." This distance, Tucker observed, would render an individual stopping at said sign unable to see "any traffic traveling east and/or west of Ellis Street," requiring the individual to "drive their vehicle well past the stop sign in an attempt to observe oncoming traffic on Ellis Street."

On August 16, 2006, the Estate filed its motion to amend its tort claim notice or, in the alternative, for leave to file a late notice of claim. The County appeared in opposition at oral argument in the Law Division on September 22, 2006.*fn2

Following argument, the judge made the following ruling:

I'm satisfied that there was a timely Notice [of Claim] filed and I am also satisfied that the intersection collision resulting in the fatality, by its very nature implicates the stop sign. And that it would be unfair to preclude plaintiff who, in an abundance of caution has filed this motion to amend, so that I will grant it.

I do not rule on the substantial compliance issue since I find that the cause of action is already part of the first Notice that was properly filed. It is my view that while you must provide a description of the occurrence, you need not set forth with specificity the particular allegations of a complaint.

An order filed by the Estate's counsel merely recited that its motion (to amend or alternatively file leave to file a late notice of claim) was granted without specifying that the judge's ruling was to permit ...


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