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Torre v. DCH Investments


December 17, 2007


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1885-05.

Per curiam.


Argued November 28, 2007

Before Judges Lisa and Lihotz.

Plaintiff, Carol Torre, appeals from the trial court's December 15, 2006 order denying her motion to reconsider a prior order denying her motion for leave to file a tort claim notice against the Borough of Eatontown and its construction officer, Dave Wroblewski (defendants), for their alleged role in the design of a stepped walkway on a privately-owned commercial establishment where plaintiff allegedly slipped and fell and was injured in November 2004. Plaintiff argues that she did not know and could not be reasonably charged with knowledge of the actions of the public entity and public employee until she discovered their involvement in May 2006. Within ninety days, on June 12, 2006, she filed her application to permit the late filing of a tort claim notice. Thus, plaintiff argues on appeal that the trial judge erred in failing to recognize and apply the discovery rule. We disagree with plaintiff and affirm.

Plaintiff alleges she fell on November 17, 2004 while ascending the outside concrete stepped walkway of the Kay Honda car dealership in Eatontown. The stepped area had no handrails. Prior to this date, a renovation project was performed at the dealership, which included the installation of the stepped walkway.

On April 27, 2005, plaintiff filed the initial complaint against the owner of the property, DCH Investments, Inc., and the car dealership, Kay Motors/DCH Motors, Inc. She named fictitious parties as responsible for the design and construction of the renovation, alleging that they failed to conform with applicable standards, codes and regulations, resulting in an unsafe condition that proximately caused her fall. The answer filed by defendants included a third-party complaint identifying Lam & Associates, Inc. as the architect responsible for the design and Cowbay Contracting, Inc. as the party performing the construction. Plaintiff promptly filed an amended complaint adding those parties as defendants.

Discovery progressed. The parties exchanged answers to interrogatories. Plaintiff received records from the Eatontown Building Department pursuant to subpoena. On November 21, 2005, the parties deposed Dave Wroblewski, the former construction official of Eatontown.*fn1 On January 10, 2006, plaintiff filed an affidavit of merit issued by a licensed engineer, William Poznak. Poznak concluded that the stairway violated various building codes and posed a hazard to patrons. The affidavit claimed that the care exercised by other individuals and entities, not relevant to this appeal, fell below the acknowledged professional standard.

Lam & Associates moved for summary judgment, contending that it adhered to the requisite standard of care and that no affidavit of merit was provided as to it. The motion was granted on March 3, 2006. Plaintiff's new counsel filed a third amended complaint on March 14, 2006, adding the names of the parties mentioned in Poznak's affidavit.

On May 3, 2006, the parties deposed Lawrence Lam. He believed the municipality engaged one of the newly named defendants, T&M Engineering, to consult on the ultimate approval of the construction project. The original design provided by Lam consisted of a ramped walkway. Lam denied that he was responsible for changing the plan to a stepped walkway. He did not know who designed the stepped walkway, but he had "thoughts" on the subject. Based on visits to the site and conversations with the builder, he believed Wroblewski may have designed the stairway. He believed Wroblewski took a high level of interest in the project and played an "active" role in it. Lam said Wroblewski objected to the use of a smooth, continuous surface sidewalk to enter the showroom and directed Lam to submit as-built plans showing a series of steps in order to secure a certificate of occupancy. Lam believed handrails would be installed and originally drew the as-built plans to reflect their presence. However, Wroblewski modified the plans and directed that the addition of handrails was unnecessary.

According to Lam, Wroblewski drove "this particular piece of the project," because he "wanted this entrance a certain way." Lam did not challenge Wroblewski because there was no building code provision requiring the extra handrails. He could not recall any specific conversations with Wroblewski about the modifications. He added that Wroblewski was "the final authority for built structures in this township."

After this deposition, plaintiff submitted on June 12, 2006 an application for an order to permit her to file a late tort claim notice. In support of the motion, plaintiff's counsel certified that "[b]efore the deposition of Mr. Lam, there was no suggestion by any person or entity that the Borough of Eatontown caused or contributed to plaintiff's injury. For that reason, plaintiff, Carol Torre, could not and should not have had any basis to file a claim against the Borough of Eatontown, David Wroblewski, or Wallace Englehart, of the Eatontown Building Department."*fn2 Counsel further certified that plaintiff did not know the notice requirement existed: "Plaintiff's delay in filing such Notice of Claim was not a result of procrastination or ambivalence but merely lack of knowledge of the statute."

In response to the motion, defendants urged that plaintiff's cause of action accrued on the date she fell or, alternatively, she should have discovered the possible claim against the public entity defendants no later than Wroblewski's November 21, 2005 deposition. Thus, the proposed notice of claim fell outside the ninety-day deadline and required a showing of extraordinary circumstances and lack of prejudice to be allowed.

On July 13, 2006, the judge denied plaintiff's motion. Referring to Wroblewski's deposition testimony, he concluded that "a fair reading of those questions and answers indicates a degree of unsureness by [Lam] of [Wroblewski's] knowledge regarding the handrails at the dealership." He also noted the argument that plaintiff should have known of the municipality's potential fault as early as January 2006 because Poznak's Affidavit of Merit referred to code violations at that time. The judge concluded:

In this case plaintiff has not filed a Notice of Claim within the one year statutory period outlined in N.J.S.A. 59:8-9. Further, the plaintiff has not demonstrated extraordinary circumstances as to why [she] failed to file a Notice of Claim, other than ignorance of the law.

Lastly plaintiff's allegations against the municipality, Mr. [Wroblewski] and Mr. Englehart hinge solely on the testimony of Lawrence Lam[] whose testimony, when read broadly, is unclear as to [Wroblewski's] alleged involvement. Plaintiff's motion has to be denied. It is simply too late to file a Notice of Claim.

Plaintiff's reconsideration motion was denied, and this appeal followed.*fn3

The decision to grant or deny an application to file a late notice of claim lies within the sound discretion of the trial court. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). "[T]he decision 'will be sustained on appeal in the absence of a showing of an abuse thereof.'" O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997) (quoting Lamb, supra, 111 N.J. at 146).

The New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 59:12-3, reflects the legislative intent to carve out narrow exceptions to the general rule of public entity immunity. N.J.S.A. 59:1-2; Gilhooley v. County of Union, 164 N.J. 533, 538 (2000); see also N.J.S.A. 59:3-1c (extending this immunity to public employees). When appropriate to bring a tort action against a public entity or public employee, the Act requires the claimant to comply with a strict standardized procedure. See N.J.S.A. 59:8-3. The cornerstone of this procedure continues to be the requirement to file a timely notice of claim with the public entity within ninety days of accrual of the claim. N.J.S.A. 59:8-8. A late claim may be filed within one year of accrual of the claim in the discretion of the court upon a showing of extraordinary circumstances and the absence of substantial prejudice to the public entity or employee. N.J.S.A. 59:8-9.

The exception to the ninety-day notice provision "does not define what circumstances are to be considered 'extraordinary' and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 404 (App. Div. 1996)).

Our Supreme Court set forth the interpretive approach to untimely notice cases in Beauchamp v. Amedio, 164 N.J. 111 (2000):

The first task is always to determine when the claim accrued. The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual. Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice. [Id. at 118-19.]

As the excerpt makes clear, the discovery rule applies to the Act. See also Villalobos v. Fava, 342 N.J. Super. 38, 46 (App. Div.), certif. denied, 170 N.J. 210 (2001). The central issue in this appeal is the accrual date of plaintiff's claim, considered in light of the discovery rule.

Looking past the Act's minimal guidance on the accrual of claims, see N.J.S.A. 59:8-1, it is clear that a claim generally accrues on the date of the accident or incident that gives rise to an injury. Beauchamp, supra, 164 N.J. at 121; Fuller v. Rutgers, The State Univ., 154 N.J. Super. 420, 423 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978). "The only exception to that well established notion of accrual is the case where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible." Beauchamp, supra, 164 N.J. at 117; see Ayers v. Twp. of Jackson, 106 N.J. 557, 582 (1987) (noting that the discovery rule "tolls the statute until the victim discovers both the injury and the facts suggesting that a third party may be responsible").

Here, there is no claim that plaintiff was unaware of the nature of her injuries. To push the accrual date forward, plaintiff must therefore show she was unaware at the time of the accident that the public entity third party was involved in the injury. This exception to the general accrual rule has not arisen with the same frequency as the latent injury exception. We summarize the analysis in three cases that have addressed the issue.

In Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 531 (App. Div. 1989), the plaintiff sued another driver with respect to an automobile accident; the defendant argued that "he lost control of his vehicle as a result of the roadway being slippery." The plaintiff did not file a timely notice of claim with the public entities charged with the road's maintenance. Ibid. When the public entities opposed the plaintiff's attempt to amend the complaint, she argued that the discovery rule applied to her claim because she only learned of the possible liability of the public entities after she received a subpoena from the government's attorney to appear at a deposition. Id. at 536. We concluded that the plaintiff must "be charged with knowledge of the possibility of liability of the entities" because the initial police report referred to the other driver's loss of control on the icy and unsanded road. Id. at 537. Thus, we deemed the discovery rule inapplicable because "liability should have been discovered by the exercise of reasonable diligence." Ibid.

In Iaconianni v. New Jersey Turnpike Authority, 236 N.J. Super. 294, 295-96 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990), two tractor trailers hooked bumpers and crossed the median divider on the New Jersey Turnpike. One of the tractor trailers struck the plaintiff's vehicle, causing fatal injuries. Id. at 296. Although the initial police report concluded that the tractor trailers jumped over the center guardrail, an eyewitness testified that "the guardrail was 'flattened like a pancake' and it 'splintered like a toothpick' at the time of impact." Ibid. The plaintiff argued that the cause of action against the public entity did not accrue until the parties learned of the relative weakness of the guardrail from the eyewitness' testimony. Ibid.

We refused to apply the discovery rule. Id. at 297. Pointing to the lack of evidence that the plaintiff's death or the inconsistent police report impeded the search for the eyewitness, we concluded that the plaintiff's cause of action accrued on the date of the accident. Id. at 296-97. By reasonable diligence and intelligence, the plaintiff should have discovered the factual basis for the claim against the public entity prior to the deposition. Id. at 297. "Reasonable diligence required an investigation of the accident that went beyond a mere reading of the police report before the discovery rule may be invoked." Ibid. We concluded: "The difference between the eyewitness's version respecting the guardrail and of the state trooper's was simply one of focus on a different theory of fault, and not whether the guardrail was implicated in the accident." Ibid.

We considered the tort claim of a woman who tripped over a pipe protruding from the sidewalk in front of a private residence in Blank v. City of Elizabeth, 318 N.J. Super. 106, 108 (App. Div.), aff'd in part, modified in part, 162 N.J. 150 (1999). Nine months after the accident, the residence owners' insurance company informed plaintiff's counsel that the pipe belonged to the City of Elizabeth. Id. at 109.

The case centered on the application of the discovery rule. Id. at 113. Specifically, plaintiff's counsel certified that "the information disclosed in [the] investigation report could not have been discovered within the ninety-day period." Id. at 111. Because of an inadequate record, the majority remanded the matter to consider the investigation required for the plaintiff to discern that the public entity owned the pipe. Id. at 109, 111. Determination of the accrual date depended on an attorney's ability to supplement by reasonable investigation his knowledge about the pipe's ownership beyond the pipe's intrinsic features. Id. at 112.

The Supreme Court, however, concluded that the facts did not require a remand. Blank, supra, 162 N.J. at 152-53. Plaintiff's counsel noted that "the so-called 'pipe' was in fact a round, metal shut-off valve protruding above the sidewalk that, on visual inspection, readily would have been identified as an appurtenance of a water supply system." Id. at 152. Because reasonable efforts would have led to the identification of the public entity defendants, there was no need to place the accrual date at the time of the receipt of the insurance company's report. Id. at 152-53.

In the case before us, the trial judge did not set a specific accrual date. He stated that plaintiff's application was "simply too late" and outside the one-year statutory period. These statements imply that the accrual date was in November 2004. However, even if the accrual date was not the date of the accident, the judge found that plaintiff failed to demonstrate "extraordinary circumstances as to why [she] failed to file a Notice of Claim."

The parties raise four possible accrual dates. Defendants urge that the accrual date was the date of the slip-and-fall, November 17, 2004. Alternatively they argue that plaintiff's cause of action accrued either on the date of Wroblewski's deposition, November 21, 2005, or the date plaintiff's expert submitted an affidavit of merit stating that the stepped walkway violated relevant building codes, January 10, 2006. Plaintiff argues that the accrual date was May 3, 2006, the date of Lam's testimony about the alleged involvement of Wroblewski in the design of the stairway.

This is not a case for which the Act's notice provisions are "well-suited." Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74, 81 (2000) (referring to a fall on the steps of a courthouse). We must evaluate plaintiff's claim of "not timely knowing or being chargeable with timely knowledge that a public entity may be liable for an injury." Blank, supra, 318 N.J. Super. at 113.

In our view, there is stronger evidence here than in the three cases we discussed to suggest that plaintiff was not chargeable with timely knowledge of the involvement of the public entity or employee at the time of the slip-and-fall outside the car dealership. The alleged defective instrumentality here would not appear at first glance to be the result of government activity. The various elements of the public streets and highways, like the road itself (Pilonero) or guardrails (Iaconianni), are the result of some government's construction efforts. Likewise, the location of the pipe in Blank could lead only to the conclusion that it was an appurtenance of a publicly maintained sewer system. Thus, it was reasonable to require the plaintiffs in those cases to exercise diligence to determine the identities of the proper public authorities in the prescribed ninety-day period. Here, however, the alleged accident occurred on the concrete stairway on the private property of a car dealership. Prompt visual inspection of the stairway would not necessarily lead one to realize the possibility of municipal tort liability.

However, we reject plaintiff's position that the date of Lam's deposition controls the determination of the accrual date and thus the disposition of this appeal. Rather, we conclude that plaintiff must be charged with constructive knowledge of the involvement of the public entity and employee no later than January 10, 2006.

There is a strong basis to conclude that the accrual date should be the date of Wroblewski's deposition, November 21, 2005. Lam's deposition reveals there were at least sixteen exhibits introduced at Wroblewski's deposition. One of the exhibits was the elevation sketch of a proposed pedestrian/wheelchair ramp into the building. From Poznak's affidavit, it is clear that plaintiff's counsel attended Wroblewski's deposition and received a copy of the transcript. It is reasonable to conclude that Wroblewski's testimony about the sketch of a wheelchair ramp into the building, and other aspects of the construction process, would apprise plaintiff of his possible involvement in the allegedly unsafe, deficient design of the means of ingress and egress to and from the building. Even if plaintiff could not know the extent of Wroblewski's alleged wrongdoing, she could know that he was involved in the process. Without the benefit of Wroblewski's deposition transcript, however, we are at a disadvantage in our analysis of November 21, 2005 as the accrual date.

However, Poznak's January 10, 2006 Affidavit of Merit should have notified plaintiff of Wroblewski's possible involvement in the design of the stairway. Poznak certified that he was provided the subpoenaed records from the Eatontown Building Department and the transcript from Wroblewski's deposition. Based upon this documentation, and his inspection of the premises, Poznak opined that "the area where plaintiff fell posed an unsafe and hazardous condition to patrons and violated the BOCA National Building Code, in addition to other recognized codes." He attributed fault to a number of private individuals and entities, including T&M Engineering, for the unsafe, noncompliant stepped walkway.

Even though Lam opined five months after Wroblewski's deposition that the municipality hired T&M Engineering to consult on the final approval of the project, there was nothing to prevent plaintiff from becoming aware of this connection at an earlier time. In fact, there is record evidence demonstrating plaintiff's knowledge. The third amended complaint, filed at the same time as Poznak's affidavit, added T&M Engineering as a party and alleged that the corporation was "retained and hired by either the municipality" or the private party defendants to ensure that the construction proceeded in conformity with the appropriate building codes and regulations. Even if plaintiff did not consider the contractual relationship between the municipality and the corporation an absolute certainty, there was sufficient reason for counsel to exercise reasonable diligence to make the connection within ninety days.

The possible violation of building codes should have also apprised plaintiff of the involvement of some government party. Even though a municipality cannot be liable for the negligent issuance of a certificate of occupancy, Fiduccia v. Summit Hill Constr. Co., 109 N.J. Super. 249, 254-55 (Cty. Dist. Ct. 1970), an attorney should be aware that the approval of construction projects implicates the government. The potential for immunity as to some aspects of the governmental function in this regard does not negate the accrual of a cause of action. See, e.g., Beauchamp, supra, 164 N.J. at 119 (rejecting the concept that until a plaintiff knew her injuries were permanent her cause of action did not accrue, and concluding that lack of evidence of permanency "in no way affects the maintainability of the action itself [but] only limits the permissible extent of the recovery by eliminating one of the customary elements of common-law personal injury damages").

Accordingly, we would conclude that plaintiff was charged with knowledge of Wroblewski's potential liability no later than January 10, 2006. Therefore, plaintiff's claim accrued on or before that date, and the June 12, 2006 motion to file a tort claim notice fell outside the ninety-day requirement.

Because of our conclusion that the accrual date is no later than January 10, 2006, the motion to allow the late notice was filed within one year, and we must determine "whether extraordinary circumstances exist justifying a late notice." Beauchamp, supra, 164 N.J. at 118-19. We must scrutinize the specific facts to determine if sufficient reasons constituting extraordinary circumstances excuse the late attempt to file a notice of claim. Lowe, supra, 158 N.J. at 626. "Not any one factor constitutes 'sufficient reasons,' but courts consider a combination of factors." Id. at 629 (quoting Lamb, supra, 111 N.J. at 149).

To the extent that plaintiff's counsel attributes the failure to file the notice of claim to the "mere" lack of knowledge of the Act's requirements, such circumstances are not "extraordinary." "Ignorance of the 90-day statutory requirement, ignorance of one's rights or mere ambivalence by the claimant have never been found to be sufficient reasons on their own to allow late filing." Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 250 (App. Div. 1995); see also O'Neill, supra, 304 N.J. Super. at 552. Nor can plaintiff argue that the lack of knowledge of "exactly the scope of liability to potentially be assessed against the public entity" constitutes sufficient reasons. "A person need not have or even contemplate filing a claim in order to trigger the notice provision." Beauchamp, supra, 164 N.J. at 121. Furthermore, Pilonero and Iaconianni demonstrate that the possibility of government liability, not knowledge of the exact scope of such liability, starts the ninety-day notice period.

Even if plaintiff's counsel's certification pointed to other specific facts to justify the late notice of claim, it is unlikely plaintiff could analogize her facts to those in cases finding "extraordinary circumstances." There is no suggestion, for example, that plaintiff suffered extremely serious injuries that prevented her from timely filing the notice. See S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 119-20 (1977) (finding that the plaintiff's complete incapacitation for longer than ninety days sufficed under the more lenient predecessor to the current Act); Maher v. County of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (plaintiff's induced coma and repeated hospitalization "were truly extraordinary"); Marino v. City of Union City, 136 N.J. Super. 233, 241 (Law Div. 1975) (sufficient reason for failure to file timely notice shown by quadriplegic plaintiff who was confined to out-of-state hospitals since his injuries); see also R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340-41 (App. Div. 2006) (extraordinary circumstances found when the stigma and severity of an HIV-positive diagnosis kept the plaintiff from seeking legal advice).

Nor can plaintiff argue that the complexity of this case excused the failure to file a timely notice. This was a slip-and-fall negligence action, not a complex matter like those in Lamb, supra, 111 N.J. at 150-51 (difficulty of identifying parties responsible for toxic tort), or Estate of McGrath v. North Jersey District Water Supply Commission, 224 N.J. Super. 563, 569, 579 (Law Div. 1986) (attorney reluctance to take on cases arising from massive regional flood damage).

Plaintiff also cannot point to the serving of a notice of claim with the improper public entity, which our Supreme Court held to meet the proper threshold in Ventola, supra, 164 N.J. at 78, 81-82 (filing of tort claim notice with federal, rather than state, government was due to the special nature of veteran care and presented extraordinary circumstances), and Feinberg v. New Jersey Department of Environmental Protection, 137 N.J. 126, 135 (1994) (permitting notification to one state agency to provide constructive notice to another agency, especially when the agency used dilatory tactics).

Finally, plaintiff cannot analogize her facts to the unique medical malpractice claim in Lowe. There, the plaintiff sought treatment with the defendant, a medicine professor with the public entity University of Medicine and Dentistry of New Jersey (UMDNJ). Lowe, supra, 158 N.J. at 611-12. Through UMDNJ's use of affiliation agreements, however, the defendant enjoyed staff privileges at a local private hospital. Id. at 612. The defendant performed surgery on the plaintiff at this private hospital, which set the operating procedures and billed the plaintiff. Id. at 611-13. Bringing a malpractice claim after ninety days, the plaintiff argued that the unique arrangement obscured the defendant's status as a public employee subject to the Act. Id. at 625. The Court agreed. It noted that the plaintiff's due diligence and lack of knowledge about the defendant's affiliation with UMDNJ (or belief that the defendant was working in a private capacity at the private hospital), "[c]oupled with the legal doubt surrounding the status of UMDNJ professors as public employees," sufficed to demonstrate extraordinary circumstances. Id. at 629-30.

No circumstances such as these are present here. Plaintiff failed to set forth sufficient reasons constituting extraordinary circumstances that precluded her from filing the notice within ninety days of the accrual date we have determined. In light of this conclusion, we need not address whether the public entity and employee would be substantially prejudiced by a late filing.


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