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Leidy v. County of Ocean

February 28, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5160-06.

The opinion of the court was delivered by: Parrillo, J.A.D.



Argued January 7, 2008

Before Judges Parrillo, Graves*fn1 and Alvarez.

Defendant County of Monmouth appeals from the order of the Law Division denying its motion for reconsideration of a December 1, 2006 order granting plaintiff Richard Leidy's motion to extend the time to file a late Notice of Tort Claim pursuant to N.J.S.A. 59:8-9. For the following reasons, we reverse.

The salient facts are not in dispute. On December 25, 2005, plaintiff was in an accident while operating a motorcycle on County Route 537. The section of the road where the accident occurred is situated along, and forms the borders of, the Township of Jackson in Ocean County to the southeast, and the Township of Upper Freehold and Millstone in Monmouth County, to the northwest. The County of Monmouth maintains the portion of the road where the motorcycle crash occurred.

According to plaintiff, at the time of the accident, he was traveling eastbound on his 1998 Harley Davidson motorcycle, along with friends who were also operating motorcycles. They were riding two-by-two in a staggered formation, and he and a friend were in the lead. Suddenly, the traffic ahead began to stop and plaintiff and his companions applied their brakes. When the motorcycle to his left appeared to drift in his direction, to avoid a collision, plaintiff veered onto the three-foot wide paved shoulder of the road. The pavement, however, ended abruptly and the front tire of plaintiff's motorcycle caught a rut between the remainder of the paved shoulder and the unpaved dirt area. Plaintiff lost control and was thrown off the motorcycle after it crashed into a mailbox and eventually a telephone pole.

A Jackson Township police officer responded to the accident scene. In his report of the incident, Officer Seda noted that "[t]he section of [the] shoulder that makes the transition from 3' to 1' is washed out and drops approximately 4"-5" creating a hazzard [sic]. This condition is what cause[d] [Leidy] to lose control of the bike." Officer Seda's report also stated that "Monmouth County Road Dept. was notified to make the repair."

Plaintiff, himself a resident of and police officer employed by Freehold Township in Monmouth County, was under the impression that since the accident occurred in Jackson, the property was controlled and maintained by Ocean County. Consequently, in anticipation of a personal injury lawsuit, on March 21, 2006, plaintiff's counsel, pursuant to the ninety-day notification requirement of the Tort Claims Act, N.J.S.A. 59:8-1 to -11, see N.J.S.A. 59:8-8, sent a notice of tort claim to the New Jersey Department of Law and Public Safety, the New Jersey Department of Transportation, Ocean County, and the Township of Jackson, but not to the County of Monmouth, which had exclusive jurisdiction over the roadway. Eight months later, on November 13, 2006, plaintiff filed a complaint against both Ocean and Monmouth counties, alleging negligent maintenance and inspection of the site of the motorcycle accident. Two days later, on November 15, 2006, plaintiff filed a notice of motion for leave to file a late Notice of Tort Claim upon Monmouth County. Because the County of Monmouth never received the motion, it was granted as unopposed by order of December 1, 2006, allowing plaintiff to file a late Notice of Tort Claim.

Upon receipt of the Law Division order and the late notice on December 18, 2006, defendant timely moved for reconsideration, vacation of the December 1, 2006 order, and dismissal of plaintiff's complaint. The motion judge denied this relief, essentially reasoning that the unique facts and circumstances of the case, including the failure of the parties originally noticed to claim otherwise, led plaintiff to reasonably believe that Ocean County and the Township of Jackson, rather than Monmouth County, had jurisdiction over the portion of the roadway in question, and further that the County of Monmouth was not prejudiced by any delay in filing the late notice.

On appeal, defendant principally argues that plaintiff failed to establish the requisite "extraordinary circumstances" justifying relief from the ninety-day statutory notification requirement, and that it will be "substantially prejudiced" by allowing the claim to proceed. We agree.

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and ...

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