On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3267-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Parrillo and Messano.
Defendant Toms River Board of Education (the Board) appeals from the November 2, 2007 order that permitted plaintiffs, the Estate of Nicholas Valente, Nicholas' parents, Joseph Valente, Jr., and Christine Valente (collectively, plaintiffs), to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA). We have considered the arguments of the parties in light of the record below and applicable legal standards. We affirm.
On September 26, 2007, pursuant to N.J.S.A. 59:8-9, plaintiffs moved for leave to file out of time the notice of claim required by N.J.S.A. 59:8-4. We recite the facts, largely undisputed, as gleaned from the various certifications filed in support of, and in opposition to, plaintiffs' motion.
On December 19, 2006, Nicholas, a sixth grader at the Toms River Intermediate East School, collapsed during basketball practice at the Hooper Avenue Elementary School gymnasium.*fn1
Medical efforts to save Nicholas were unsuccessful and he subsequently died at Jersey Shore Medical Center. After Nicholas' death, Joseph learned that the Hooper Avenue Elementary School was equipped with a defibrillator, but that the device was never used during his son's collapse because the coach of the basketball team, the only adult in attendance at the practice, did not know how to use it. In late March or early April 2007, Joseph obtained the report of the autopsy performed on Nicholas. According to that report, Nicholas "probably died as a result of a cardiac arrhythmia." Nicholas had experienced two prior episodes, one in May 2003, the second on December 4, 2006, during which he passed out. Nicholas' treating physician was made aware of both incidents.
Tragically, Nicholas was not the first child that Joseph and Christine had lost to an early death. In July 2002, their daughter, Danielle Marie, drowned in the family's backyard pool, thus, even more understandably Joseph and Christine were "distraught" after Nicholas' death. The couple "became obsessed with protecting [their] remaining child, Daniel," and had "been trying [their] best to deal with [their] own depression...."
After Nicholas' death, the Board's superintendent of schools, the principal of Nicholas' school, and his basketball coach visited the family home to offer their sympathies. In the ensuing months, the Board's representatives held some fund-raising events to help ease plaintiffs' financial burdens. Joseph claimed that in March 2007, Debra McKenna, the Board's assistant superintendent, offered the family $2000 toward payment of Nicholas' final medical bills, but would only do so if Joseph signed "a general release." Joseph refused, advising McKenna that he wished to see the autopsy report before signing anything. After receiving the autopsy, Joseph told McKenna that "$2000 was not fair compensation for the loss of [his] child." Rather, he told McKenna that he "thought $20,000-30,000 seemed fair... but... that [he] wanted to check with [his] wife." McKenna told Joseph that the Board would have to take action on such a request at their next meeting. She directed Joseph to the Board's attorney, Thomas Monahan.
Joseph spoke to Monahan who would only discuss the details of any payment with Joseph's attorney. Joseph told Monahan that he had "never signed any papers with any lawyer but [had] only consulted with one." After "five weeks passed," Joseph called McKenna who told him the request had not been on the agenda as planned, but that it would be on the next agenda. Joseph was asked to send a letter to the Board making a formal request for the money, which he did. However at the end of June, Joseph spoke to Monahan again and was told that the Board had denied his request because 1) his settlement demand continued to rise; and 2) the Board felt it was not legally responsible for Nicholas' death. During this time, Joseph "believed [he] was engaged in a good faith negotiation with the Board... to compensate [him] and [his] family over the loss of [his] son." The Board never advised him of the TCA's notice requirements, and Joseph believed the Board "took advantage of [his] altered state of mind caused by the loss of [his] son."
McKenna filed a certification in opposition to plaintiffs' motion. She claimed that she went to the family home after Nicholas' demise, and that Joseph told her "that he had no problem with the school regarding the present circumstances." She also noted that Joseph told her he was suing Bally's Casino and Hotel where Nicholas had passed out earlier in December 2006. McKenna claimed that Joseph told her of the financial difficulties his family was experiencing, including the unpaid medical bills related to Nicholas death.
McKenna detailed a total of six conversations she had with Joseph during the months of February, March and April 2007 during which he requested the Board to pay for his son's medical bills. In May, Joseph contacted her and told her his son's life was worth a lot more than $2000, that he had the reporters in his pocket, that he would go to the newspapers if the school did not give him money, that the school did not need all that negative publicity, that he wanted $20,000 and that he had a good lawyer.
McKenna told Joseph that she would need to speak to Monahan about the request. Subsequently, McKenna told Joseph that he would need "to proceed formally through court," as Monahan had suggested, and that she ...