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Jones v. New Jersey Transit Corp.

September 5, 2008

JAMES JONES, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT CORPORATION, CITY OF NEWARK, AND CITY OF EAST ORANGE, DEFENDANTS-RESPONDENTS, AND COUNTY OF ESSEX, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5201-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2008

Before Judges Stern, A. A. Rodríguez and Collester.

James Jones appeals from the summary judgment dismissing his claim against New Jersey Transit (NJT) and the City of Newark (Newark). We reverse.

On October 7, 2005, Jones fell on the steps of a pedestrian overpass owned by NJT and sustained personal injuries, including "comminuted supracondylar periprosthetic fracture of the right femur." The fracture required "open reduction, internal fixation with supracondylar plat and screws, and cerclage wires" to stabilize. In addition, Jones suffers from other illnesses not related to the accident.

Jones retained counsel. Because Jones was unable to go back to the scene of the accident due to his injuries, counsel hired an investigator, Ernest J. Volkman, to interview Jones. Volkman visited Jones at home to obtain information on how and where this accident occurred. According to Volkman, Jones said that, "he was crossing a pedestrian overpass located at 14th Street and North Ward Place in Newark, New Jersey, which crossed over [NJT] railroad tracks, when he slipped and fell on broken and crumbling concrete steps." Volkman went to the location and took pictures of the steps and determined that the location was in Newark after examining a map.

Jones filed timely notices of claims with the following public entities: County of Essex (County), Newark and NJT, as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The notices identified the site of the accident as "a certain pedestrian overpass located at 14th St. and N. Ward. Pl., Newark, County of Essex, State of New Jersey."*fn1 Newark acknowledged receipt of the notice of claim and requested any information that Jones had not provided. Jones did not provide any additional information in response to this letter.

Seven months after the accident, Jones's counsel requested that Volkman re-examine the location of the accident. Upon this re-examination, Volkman concluded that the location of the accident was actually in the City of East Orange (East Orange).

This determination was incorrect and all parties now acknowledge that the accident occurred in Newark, not in East Orange.

Jones then filed a complaint against NJT, the County and Newark. In the notices of claim, Jones listed the site of the accident as "a certain pedestrian overpass located at N. 14th Street and 7th Avenue in Newark."*fn2

Nine months after the accident, Jones moved to file an amended and late notices of claim to reflect a change in the location of the accident to "14th Street and 7th Avenue Newark." Jones also sent amended notices to the County, Newark, East Orange and NJT. East Orange opposed the motion. Newark cross-moved to dismiss, arguing that Jones's excuse did not amount to "extraordinary circumstances" as required by the TCA. The judge denied the motion because Jones's counsel and Volkman did not do a reasonable investigation at the scene.

Jones moved for reconsideration. NJT moved for summary judgment. The judge denied the motion for reconsideration, determining that "there was absolutely no substantial compliance with the [TCA]," and granted summary judgment to NJT.

Jones filed an appeal. However, we determined that the appeal was interlocutory because there was no final disposition against the County. The parties stipulated to a dismissal of the claim against the County only. Jones then filed the present appeal. On appeal, Jones contends that his notices of claims against Newark and ...


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