December 19, 2008
JASON BOUGH, PLAINTIFF-APPELLANT,
BEGINNINGS COUNSELING & REFERRAL SERVICES, NEW JERSEY DEPARTMENT OF CORRECTIONS, MORRIS COUNTY PROBATION OFFICE, TOWN OF MORRISTOWN, DEFENDANTS-RESPONDENTS, AND TERENCE MICHAEL LYNCH, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3618-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2008
Before Judges Parker, Yannotti and LeWinn.
Plaintiff Jason Bough appeals from an order entered on August 3, 2007 dismissing his complaint as to the Title 59*fn1 defendants.
This case arises out of the Morris County Probation Department's referral of probationers to Beginnings Counseling & Referral Services (Beginnings), a publicly funded drug and alcohol treatment program. At Beginnings, a number of probationers encountered an individual initially identified as "Dr. Mike," whose real name is Terence Michael Lynch. Lynch was previously convicted of sex offenses in Morris County. During the course of his "treatment" of probationers, he engaged in inappropriate sexual contact and conversation with them. Plaintiff is the most recent in a series of plaintiffs, previously before this court in Monteagudo v. Morristown, Docket No. A-6113-05T1; Chavis v. Morris County, Docket No. A-6114- 05T1; and Marchitello v. Morris County, Docket No. A-6115-05T1. These cases were consolidated and decided in March 2007.
The facts relevant to this appeal are as follows. In December 2004, plaintiff was sentenced to probation and directed to attend Beginnings for a drug and alcohol evaluation. On December 15, 2004, he met Lynch at Beginnings. Lynch engaged plaintiff in inappropriate touching and conversation. In March 2005, a detective from the Morris County Prosecutor's Office contacted plaintiff about Lynch. The detective asked plaintiff not to take any legal action, however, until after the matter was made public. The matter was made public in newspaper reports on February 1, 2006.
In February 2006, plaintiff began counseling for the trauma he suffered as a result of the incident at Beginnings and consulted an attorney about bringing a lawsuit. Plaintiff's counsel did not serve notices of tort claim on any of the Title 59 defendants -- Morris County Probation Office, New Jersey Department of Corrections, the Town of Morristown and Beginnings -- until June 9, 2006. Moreover, plaintiff's counsel did not move for leave to serve late notices of claim until August 9, 2006.
The Title 59 defendants moved for summary judgment on the ground that plaintiff failed to serve timely notices of claim. After hearing arguments, the trial court found that the cause of action accrued on February 1, 2006, the date on which the allegations against Lynch were made public. The court found that
[a]t that point . . . plaintiff . . . knew everything, knew what was going on, knew that this guy Lynch was bad, knew who hired him, knew who kept him on the payroll, knew he was from Beginnings, and at that point they should have been ready and chomping at the bit to file their . . . notice of claim.
The trial court found that plaintiff should have served the notices of claim within ninety days of February 1, 2006, and had demonstrated no exceptional circumstances for not doing so.
In this appeal, plaintiff argues that the trial court "erred in applying a ninety-day notice requirement not found in N.J.S.A. 59:8-9."
Actions against public entities, agencies or employees are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. In order to file such an action, a plaintiff must timely serve a notice of tort claim pursuant to N.J.S.A. 59:8-8:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or his authorized representative entered into a settlement agreement with respect to the claim. (Emphasis added.)
The purpose of the ninety-day notice requirement is to enable the public entity to undertake a prompt investigation while witnesses are available and the facts are still fresh. Ventola v. New Jersey Veteran's Mem'l Home, 164 N.J. 74, 76 (2000). The notice is also intended to allow the government entity or agency to evaluate its potential liability and exposure prior to commencement of the lawsuit, take appropriate actions to correct a defective condition or practice, and engage in settlement negotiations if such are appropriate. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 675-76 (App. Div. 1999).
N.J.S.A. 59:8-9 provides for a late notice of claim:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the [90 day] period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. (Emphasis added.)
"Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). "Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Id. at 117. Under New Jersey law, however, the discovery rule essentially tolls the accrual of a cause of action to the date on which the plaintiff learns or should have learned that he or she has been injured, or if he or she is aware of the injury, learns or should have learned that another party is responsible for it. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973).
Here, the trial court set the accrual date at February 1, 2006 -- the date on which the incidents were publicly reported. Although plaintiff became aware of the potential for a claim in March 2005 when the detective first interviewed him, plaintiff was unable to take action during the pendency of the investigation and was provided with the additional eleven months to prepare for litigation. Consequently, plaintiff was required to file a notice of tort claim within ninety days of February 1, 2006 -- that is, by May 1, 2006.
Unfortunately, plaintiff did not serve notices of claim on the Title 59 entities until June 9, 2006, more than thirty days after expiration of the ninety-day statutory period. Moreover, he served the notices without having filed a motion for leave to file a late notice of claim as required by N.J.S.A. 59:8-9. That motion was finally filed in August 2006.
N.J.S.A. 59:8-9 allows for a late notice of claim upon a showing of "sufficient reasons constituting extraordinary circumstances for . . . failure to file notice of claim" within the ninety-day period prescribed by N.J.S.A. 59:8-8.
At oral argument before the trial court, as well as before us, plaintiff's counsel insisted that N.J.S.A. 59:8-8 does not apply to plaintiff. He maintained that because the accrual date was tolled until February 1, 2006, he did not have to file a notice of claim until one year after that date pursuant to N.J.S.A. 59:8-9. In his brief, plaintiff's counsel argues:
In the companion matters, it is clear that the [p]laintiffs did not know of the events giving rise to their causes of action until the Dr. Mike news stories were published on February 1, 2006, and therefore they were correctly held to the 90 day notice requirement of N.J.S.A. 59:8-8. However, the [p]laintiff in the matter presently before the [c]court cannot claim lack of such knowledge until February 1, 2006, due to his prior knowledge and participation in the criminal prosecution of the Dr. Mike investigation and ultimate conviction throughout the year 2005. Hence, the [p]laintiff in this matter cannot either benefit from or be held to the requirements of N.J.S.A. 59:8-8, which specifically bars any filing beyond 90 days of his knowledge of the events giving rise to his cause of action. Therefore, the [p]laintiff in this matter could only file his notice of late claims subject to the requirement of N.J.S.A. 59:8-9.
First, each of the plaintiffs in the companion cases served their notices of tort claim within ninety days of February 1, 2006, and at least one of those plaintiffs was contacted by law enforcement at about the same time as plaintiff. More importantly, plaintiff's counsel is clearly mistaken in his understanding of the statutes. Plaintiff was required to comply with the ninety-day (from February 1, 2006) notice requirement just as were the other plaintiffs in the companion cases. Plaintiff here offers no exceptional circumstances at all to excuse the delay in serving the notices of claim.
Plaintiff's reliance on R.L. v. State-Operated School Dist., 387 N.J. Super. 331 (App. Div. 2006), is misplaced. There, we found extraordinary circumstances allowing plaintiff to file a late notice of claim. The plaintiff was a minor when a teacher engaged him in a sexual relationship. Some time later -- after his eighteenth birthday -- the plaintiff learned he was HIV-positive as a result of the sexual relationship. Five months after learning he was injured by the teacher's conduct, the plaintiff moved for leave to file late notices. Id. at 334. Although the plaintiff contacted the Newark Board of Education and the police department almost immediately after he learned he was HIV-positive, he did not serve timely notices of claim. When he moved for leave to file late notices, he explained that
[f]ollowing his diagnosis, R.L. was "very distressed." He cried every day and rarely left his home. Family and friends cared for him. He felt like he was going to have a nervous breakdown and was preoccupied with thoughts of death. Although R.L. felt compelled to take action to protect other students by reporting to school officials and police, he was hesitant to reveal his HIV status and was unaware of the legal requirements of the Act.
On October 2, 2005, the Star Ledger reported that a third School District, which had hired the teacher after he left the high school, had suspended him. The article reported that R.L.'s counselor and the social worker had passed on his complaints during his sophomore year of high school. It referenced R.L. by name and included his allegations and his diagnosis.
On October 4, 2005, R.L. consulted an attorney. On October 7, 2005, the attorney filed R.L.'s motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
[Id. at 336.]
The trial court found that the totality of the circumstances constituted excusable neglect within the meaning of N.J.S.A. 59:8-9 and we affirmed. Id. at 341. Here, plaintiff has presented no reasons whatsoever for the delay in serving timely notices other than his attorney's insistence that he had a year within which to serve the notices under N.J.S.A. 59:8-9.
Counsel's misapprehension of the statute does not constitute excusable neglect under N.J.S.A. 59:8-9.
Under the circumstances here, we can find no basis upon which to extend the time for filing the notices of claim beyond the ninety-day requirement of N.J.S.A. 59:8-8. We are, therefore, constrained to affirm the trial court's order of August 3, 2007.