September 5, 2008
JAMES JONES, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 NJT were in substantial compliance with the requirements of N.J.S.A. 59:8-4. We agree.
No claim against a public entity can be successful unless a notice of claim is filed "within 90 days of accrual of [the] claim." N.J.S.A. 59:8-8(a). The purpose of this statute is to "compel a claimant to expose his [or her] intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh." Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74, 76 (2000) (citations omitted). Further, the notice requirement "affords the public entity a chance to correct the conditions [and]... provides the public body responsible for making preparations for the fiscal year with an opportunity to be informed in advance as to the indebtedness or liability that it may be expected to meet." Dep't of Transp. v. PSC Resources, Inc., 159 N.J. Super. 154, 160 (Law Div. 1978) (citations omitted). As stated by the Supreme Court, the goals of N.J.S.A. 59:8-8 are:
(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
(4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet. [Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal citations and quotation marks omitted).]
N.J.S.A 59:8-4 provides what the contents of a claim must be, including "[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted[.]" N.J.S.A 59:8-4c. However, "substantial, rather than strict, compliance with the notice requirements of the Tort Claims Act may be satisfactory[.]" Johnson v. Does, 950 F.
Supp. 632, 635 (D.N.J. 1997). For notice to be in substantial compliance with these requirements, "at the very least a notice . . . must give some indication of the asserted basis of the public entity's liability." Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 680 (App. Div. 1999). Finally,
[w]hen a governmental entity receives a claim, however defective, it is unreasonable for it to essentially disregard the claim because of deficiencies. The interests of justice and fairness require that the claimant be promptly advised of the deficiencies and that failure to cure will result in rejection of the claim by the entity and a possible loss of the right to maintain a civil action. [Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991).]
A successful claim of substantial compliance requires "the moving party to show: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim; and (5) a reasonable explanation why there was not strict compliance with the statute." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003) (citations omitted).
Judged against that standard, we agree with Jones that Newark "based part of its argument to obtain a dismissal on a technicality." We note that the pedestrian overpass at the intersection of 14th Street and 7th Avenue is the only one in that area. Given this fact and that there is no intersection at 14th Street and North Ward Place, we conclude that the first notice of claim would give Newark and NJT a clear indication of the site of Jones's accident. Thus we reject Newark's argument that the "incorrect reporting of the location of the accident frustrated the essential purpose of the TCA's notice requirements" and NJT's argument that "when a notice of claim premised on a dangerous condition of property fails to give the location, it is useless to the public entity in assessing its liability." An inspection of their own records would have apprised Newark and NJT that the pedestrian overpass was the one at 14th Street and 7th Avenue.
We need not reach the other arguments raised by Jones.
But, for the sake of completeness, we also conclude that the severity of the injuries suffered by Jones do not constitute "extraordinary circumstances" such that late notices of claim should be allowed pursuant to N.J.S.A. 59:8-9. The "extraordinary circumstances" language was added to N.J.S.A. 59:8-9 in 1994 with the purpose of "rais[ing] the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one. '[T]he amendment may have signaled the end to a rule of liberality' in filing." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)). "N.J.S.A. 59:8-9 does not define 'extraordinary circumstances.' In common parlance the term would mean 'unique' or 'unusual' circumstances. It is for the courts to determine on a case-by-case basis what circumstances will constitute 'extraordinary circumstances.'" O'Neill v. City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997). Incapacity of a claimant can be an "extraordinary circumstance" that will justify the filing of a late notice of claim. However, O'Neill makes this exception very narrow: the incapacity has to be substantial.
Id. at 552. Here, Jones was not confined to a hospital. He was able to communicate with his attorney and Volkman. Moreover, the reason that the first notice of claim was defective was not due to Jones's health status, but to a lack of communication between Volkman and Jones.
However, as stated earlier, the mistaken location in the timely notice of claim was close enough to give Newark and NJT substantial notice of the location of the pedestrian overpass. As the court said in Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988), it was sufficient, under the TCA, that "[t]he affidavits submitted by the plaintiffs' attorneys described the investigations they undertook in order to identify the cause of action and the public entities involved." That is the case here.
Reversed and remanded.