On appeal from Superior Court of New Jersey Law Division, Gloucester County, Docket No. L-1698-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Lihotz.
Pursuant to Rule 2:2-3(a)(3), defendant County of Gloucester (County) appeals from a Law Division order granting plaintiffs' motion to extend the time to file a notice of tort claim. Judge McDonnell determined that the County and defendant East Greenwich Township (Township) received a timely notice from defendants Jimmie A. Martin and Jerry Bates which contained all necessary information regarding the claim of plaintiff Dawn Cassidy. The County argues that the late notice of claim must be disallowed because plaintiffs failed to demonstrate "exceptional circumstances" for the late filing. We affirm.
On July 5, 2006, Cassidy suffered significant injuries, including the loss of her fetus, when the Jeep sport utility vehicle she was driving was broadsided by the tractor-trailer driven by Bates and owned by Martin of Martin's Trucking, Inc. Bates failed to observe a stop sign, which he asserted was partially obscured by a fallen tree, uprooted after a violent storm on July 4, 2006. The police report, issued after the accident, stated a storm had blown through the area seventeen hours prior to the accident and freshly-broken tree branches were visibly lying along the roadside. Based on these facts, plaintiffs' counsel concluded that neither the Township nor the County was palpably negligent because insufficient time had elapsed to clear any storm debris, particularly because the storm hit on a holiday weekend.
Within ninety days of the accident, Martin and Bates provided a notice of tort claim to the County and the Township. The notice, presented pursuant to N.J.S.A. 59:8-4, described Cassidy's claim as follows:
c) the subject accident occurred on July 5, 2006 at the intersection of Kings Highway and Tomlin Station Road. The tractor/trailer was being operated by Jerry Bates on behalf of Martin Trucking, Inc. Mr. Bates did not have an opportunity to observe a [s]top sign as a result of downed trees [that] were believed to have come down the day before in thunderstorms. These downed trees were obscuring view to the [s]top sign.
d) Claims have been asserted by Dawn Cassidy against Martin Trucking and its driver as a result of Ms. Cassidy's sustaining personal injuries in the accident, and also due to the loss of the pregnancy. It is believed that Ms. Cassidy was 7 1/2 months pregnant, and that the accident caused the demise of the fetus.
On October 13, 2006, plaintiffs' counsel learned that there had been another storm, prior to the July 4 turbulence, which caused many trees to blow over. He obtained a copy of the National Climatic Data Center climatology report, which verified that a storm with high winds had occurred on July 2, 2006. On behalf of plaintiffs, counsel sent notice to the County and the Township, pursuant to N.J.S.A. 59:8-8, on October 28, 2006, and filed a motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9.
Judge McDonnell noted that plaintiffs' notice of claim was due October 3, 2006. However, the court retained discretion to enlarge the time for filing a notice of claim, provided that the public entity would not be substantially prejudiced. Concluding that the County and the Township received all necessary information regarding Cassidy's claim in the notice issued by Bates and Martin within ninety days of the accident, Judge McDonnell granted plaintiffs' motion to file a late notice of claim.
The County argues that the information regarding a potential prior storm was available within the ninety-day period and reasonably could have been discovered with due diligence, obviating a finding that exceptional circumstances existed to justify the late filing.
Permission to file a late notice of claim under the Tort Claims Act (TCA) N.J.S.A. 59:8-1 to -11, is "a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996).
N.J.S.A. 59:8-8 provides that a notice of claim shall be filed no "later than the ninetieth day after accrual of the cause of action." A claimant will be permanently barred from recovering against a public entity if he [or she] fails to file "[a] claim with the public entity within ninety days of accrual of ...