On appeal from Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-3167-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Plaintiff, the Estate of Douglas Van Valen, appeals from an order dated May 23, 2008 dismissing plaintiff's complaint on summary judgment, and from an order dated June 20, 2008 denying reconsideration. We affirm.
Decedent Douglas Van Valen, an employee of the Oradell Department of Public Works (DPW), died as the result of a workplace accident on October 2, 2007. Decedent and a fellow DPW employee were repairing a road, using hand tools and a Beuthling B200T asphalt roller. The co-worker lost control of the asphalt roller, which knocked decedent down and crushed him against a parked car.
The Estate failed to file a notice of tort claim within ninety days after the accident, as required by the Tort Claims Act (TCA), N.J.S.A. 59:8-8a. Instead, on April 24, 2008, the Estate filed a motion returnable on May 9, 2008, for leave to file a notice of late claim pursuant to N.J.S.A. 59:8-9, which requires a showing of "extraordinary circumstances" justifying the late filing. Ibid. The application was supported by a certification from the estate administrator, defendant's father, who attested that the family had been "devastated" by his son's death and also had been under the impression that "only defendants could act on our behalf because the death of my son happened on the job." He also contended that he had only recently learned that there might have been deficiencies in the maintenance of the asphalt roller or in the training of the co-employee in using the machine. Plaintiff did not file a brief in support of the motion.
The motion was adjourned to May 23, 2008, and on May 15, defendants filed a substantial brief in opposition to the application, contending that the Estate had not established extraordinary circumstances for the late filing under the TCA. In the alternative, defendants contended that that the claims against Oradell and decedent's co-worker were barred by the exclusive remedy provision of the Worker's Compensation Act, N.J.S.A. 34:15-8, and that the estate had not asserted facts sufficient to establish an "intentional wrong" so as to avoid the bar of section 8. Ibid. Defendants also submitted a certification establishing that the Estate had received approximately $50,000 in worker's compensation benefits covering medical and funeral expenses, in connection with decedent's injury and death.
By letter dated May 21, 2008, plaintiff's counsel asked Judge Elijah L. Miller, Jr., the presiding civil judge, to adjourn the motion to one of several dates in June. The reason for the request was that "[t]he attorney in our office who is handling this matter just returned from surgery to find a very large and detailed brief from defendant that requires a reply."
Judge Miller denied the adjournment, noting at the May 23 oral argument that a brief should have been filed with the motion: "It is not a situation where you file a notice of motion and then you prepare and do the paperwork thereafter."
In a lengthy and cogent written opinion issued on May 23, 2008, addressing the merits of the motion, Judge Miller concluded that plaintiff had not shown extraordinary circumstances for the delay in filing the notice of tort claim. He also noted, without deciding the issue, that the claim was in all likelihood barred by the Workers' Compensation Act.
On June 2, 2008, plaintiff filed a reconsideration motion, limited to claims based on "intentional torts only." The motion was supported by a brief and a certification from plaintiff's counsel. According to the certification, plaintiff retained the firm on or about April 23, 2008, and counsel immediately wrote to the state and federal Occupational Safety and Health Administration (OSHA) offices seeking reports about the asphalt roller. Counsel certified that on May 23, 2008, OSHA sent him an eighty-four page report concerning what counsel described as "OSHA violations . . . [which had] existed for a long time and were to be abated by March, 2008."
Plaintiff's brief asserted that following the accident, OSHA violations were issued concerning "the lack of training and operation on the type of equipment which caused [decedent's] death." Plaintiff's brief argued that [s]ending a novice out to run an antiquated piece of heavy equipment that had no braking power, without directions as to clearing the area of non-fixed large objects such as a parked car was tantamount to an ...