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Wells v. Dillihay


May 12, 2008


The opinion of the court was delivered by: Irenas, Senior District Judge


This action arises from injuries Plaintiff Sheilah Wells allegedly received as a result of a collision between two buses.

Plaintiff brought negligence claims against the owners of the buses, New Jersey Transit and/or The New Jersey Transit Corporation and Greyhound Lines, Inc. ("Greyhound"), and their drivers, Nicole D. Dillihay and Francis Lester Stevenson, respectively.*fn1 New Jersey Transit moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, New Jersey Transit's motion shall be granted.


On October 2, 2005, Plaintiff Sheilah Wells was a passenger on a Greyhound bus traveling in Atlantic City, New Jersey driven by Defendant Stevenson. (Complaint ¶ 13). The Greyhound bus was traveling south on Missouri Avenue in the far left lane. (Id.). In the lane directly to the right of the Greyhound bus, a bus owned by New Jersey Transit also traveled south on Missouri Avenue. (Complaint ¶ 14). The New Jersey Transit bus was driven by Defendant Dillihay. (Id.). Both the Greyhound bus and the New Jersey Transit bus attempted to take a left turn onto Arctic Avenue, and while turning, the two buses collided with each other. (Complaint ¶¶ 14-15). Plaintiff allegedly suffered "severe and grievous injuries" from the collision. (Complaint ¶ 15).

Almost one year and a half after the accident, on March 21, 2007, counsel for Plaintiff sent a letter to the claims department of New Jersey Transit to provide notice of Plaintiff's injuries and to demand a settlement (the "Settlement Demand"). (Kurtz Decl. at ¶ 5, Ex. B).*fn2 The Settlement Demand enclosed some documentation regarding the extent of Plaintiff's injuries and may have enclosed a copy of the police report that described the accident.*fn3 (Id.). New Jersey Transit responded on April 2, 2007, and informed Plaintiff that, due to her failure to file a Notice of Claim with New Jersey Transit within ninety days of the accident, her claims were barred by the New Jersey Tort Claims Act. (Id. at ¶ 6, Ex. C). Prior to receipt of the Settlement Demand, New Jersey Transit did not receive a Notice of Claim from Plaintiff, and to date, Plaintiff has not filed a formal Notice of Claim with New Jersey Transit nor requested leave to do so. (Id. at ¶¶ 4 & 8).

In August 2007, Plaintiff filed suit in the Superior Court of New Jersey, Mercer County alleging a negligence claim against each defendant. Defendants Greyhound and Stevenson (collectively, the "Greyhound Defendants") removed the case to this Court on October 4, 2007. In their answer to the complaint, the Greyhound Defendants cross-claimed against New Jersey Transit, The New Jersey Transit Corporation and Dillihay*fn4 for indemnification and contribution. New Jersey Transit now seeks dismissal of the negligence claim, asserting that Plaintiff failed to timely file a notice of claim pursuant to the New Jersey Tort Claims Act.


Because both parties submitted matters outside the pleadings, this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) will be treated as one for summary judgment under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b) ("If, on motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."); Boyle v. Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74-75 (3d Cir. 1991).

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


The purpose of the New Jersey Tort Claims Act ("Tort Claims Act") is "to re-establish the immunity of public entities while coherently ameliorating the harsh results of the [sovereign immunity] doctrine." Beauchamp v. Amedio, 164 N.J. 111, 115 (2000); see also N.J. Stat. Ann. § 59:1-2 (2008). The Tort Claims Act requires that certain procedures be followed prior to bringing suit against the public entity.*fn5 See N.J. Stat. Ann. § 59:8-3. Of these requirements, a party who seeks to maintain a personal injury claim must file a notice of claim with the public entity within ninety days of the accrual of the cause of action.*fn6 Id. § 59:8-8. The notice of claim must contain detailed information about the claimant and the nature of the claim, including a description of the injury or damage and the amount claimed. See id. § 59:8-4. The Tort Claims Act does provide a limited exception to the ninety day requirement where "extraordinary circumstances" exist for the claimant's dilatoriness and where the public entity or public employee has not been substantially prejudiced by the late filing. Id. § 59:8-9. Under this exception, a court may permit the late filing of the notice of claim within one year of the accrual of the action. Id. Other than this limited exception, a party's failure to file a notice of claim within the ninety day period will forever bar recovery against a public employee or entity. Id. § 59:8-8.

The Tort Claims Act permits a public entity to adopt its own forms specifying the information required to be contained in claims filed against that entity or its employees. Id. § 59:8-6. Pursuant to this statute, New Jersey Transit enacted specific regulations to govern the content and the procedures for filing claims against it. See N.J. Admin. Code §§ 16:88-2.1, 3.2 (2007). These regulations include the adoption of a detailed, five-page notice of claim form. Id. § 16:88, App'x A.

Here, Plaintiff's only attempt to provide notice to New Jersey Transit of her potential claim prior to filing the complaint consisted of the Settlement Demand, which was submitted to New Jersey Transit almost eighteen months after the bus collision. The Settlement Demand is deficient in multiple respects. The Settlement Demand was not filed within ninety days of the accrual date as required by the Tort Claims Act, nor was it filed within the one year period that would enable a court to extend the filing deadline for "extraordinary circumstances."*fn7

Moreover, the Settlement Demand neither complies with the notice of claim form provided under the regulations nor sets forth the substance of information required by the regulations. To date, Plaintiff has never filed the requisite notice of claim and has not sought leave to file a late notice. As more than a year has passed since the accrual date of Plaintiff's claim, this Court lacks jurisdiction to relieve Plaintiff from her failure to file a notice of claim within the statutory deadlines. See Scrutchins v. Div. of Youth & Family Servs., No. 05-0925, 2005 U.S. Dist. LEXIS 37570, at *17 (D.N.J. Dec. 29, 2005). Plaintiff's claim against New Jersey Transit is therefore barred.*fn8

Plaintiff argues that she should be relieved from the strict procedural requirements of the Tort Claims Act because she substantially complied with the filing of a notice of claim. An exception to the notice of claim requirements based on substantial compliance may exist where a claimant provides all of the requisite information to the public entity to put the entity on notice as to the pendency of the claim. Vargas v. Camden City Bd. of Educ., No. 05-778, 2006 U.S. Dist. LEXIS 13357, at *13 (D.N.J. Mar. 28, 2006). "Moreover, substantial compliance means that 'notice has been given in such a way, which though technically defective, substantially satisfies the purpose for which notices of claims are required.'" Id. (quoting Lameiro v. West New York Bd. of Educ., 136 N.J. Super. 585, 587 (N.J. Super. Ct. Law Div. 1975)). "While several New Jersey courts have held that substantial, rather than strict, compliance with the notice requirements of the Tort Claims Act may be satisfactory, . . . substantial compliance cannot be predicated upon no compliance, such as failure to answer any of the questions permitted by [N.J. Stat. Ann. §] 59:8-6." Johnson v. Does, 950 F. Supp. 632, 635 (D.N.J. 1997)(internal citations and quotation marks omitted). Further, "[c]ases which have excused strict statutory compliance generally involve claimants who have been diligent in their efforts at compliance." Sinclair v. Dunagan, 905 F. Supp. 208, 212 (D.N.J. 2005).

In support of her substantial compliance argument, Plaintiff argues that New Jersey Transit was aware or should have been aware of the potential claim by Plaintiff after the bus collision. Plaintiff asserts that New Jersey Transit should have received notice of the accident through a police report that would have been given to New Jersey Transit by Dillihay. Plaintiff also argues that, because New Jersey Transit participated in the bus collision as an "active tortfeasor" (as opposed to a "passive tortfeasor"), it would have been on notice of any potential claim.

In making these arguments, Plaintiff misconstrues the fundamental purpose behind the notice of claim requirement. The purpose of the notice provision is not to make a public entity aware that an accident occurred. Rather it is to inform the entity of an injured party's intention to sue. Unlike those cases finding substantial compliance, this is not a case where a diligent claimant provided the public entity with a defective notice of its intent to sue within the statutory deadlines. Instead, New Jersey Transit could not have been aware of the potential suit because Plaintiff made no attempt to contact New Jersey Transit directly to put it on notice of her claim within the deadlines set forth in the statute.

Even assuming that New Jersey Transit received a copy of the police report from Dillihay after the accident, the report cannot be considered a form of defective notice. First, the police report was not obtained under circumstances indicating an intent to file suit against New Jersey Transit. Had Plaintiff sent the police report directly to New Jersey Transit, then the transmittal of the police report from Plaintiff to New Jersey Transit may have provided at least some indication of Plaintiff's intent to file suit. Second, the police report fails to provide much of the information required to be provided under the Tort Claims Act. While the police report provides a general description of the accident, it does not provide any indicator that Plaintiff suffered injuries from the accident. Instead, the only reference to Plaintiff on the police report consists of her name and phone number, which are subsumed within a list of approximately thirty passengers and their respective phone numbers. (Ex. B to Plaintiff's Opposition Brief).

Further, there is no basis in the Tort Claims Act or in case law for Plaintiff's argument that the Court should distinguish between active and passive tortfeasors. An active tortfeasor has no more reason to know whether a potential plaintiff will file suit than a passive tortfeasor. Because Plaintiff has set forth no basis for her assertion of substantial compliance, the Court cannot relieve Plaintiff from her failure to file a notice of claim under the Tort Claims Act. Therefore, the Court will grant summary judgment to New Jersey Transit as to Plaintiff's Complaint.*fn9


For the reasons set forth above, the Court will grant summary judgment to Defendant New Jersey Transit only as to Plaintiff's negligence claim. Plaintiff's negligence claim against Defendant Dillihay shall also be dismissed. The Court will issue an appropriate Order.


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