July 9, 2009
IRSAN AGUILAR, PLAINTIFF-APPELLANT,
ESSEX COUNTY DEPARTMENT OF PARKS AND RECREATION AND ESSEX COUNTY, DEFENDANTS-RESPONDENTS, AND CITY OF NEWARK, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6112-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2009
Before Judges Wefing, Parker and Yannotti.
Plaintiff Irsan Aguilar appeals from an order entered by the trial court on April 11, 2008, which dismissed plaintiff's claims against defendants Essex County and Essex County Department of Parks and Recreation (hereinafter, collectively "the County"). Plaintiff also appeals from an order entered on June 20, 2008, which denied his motions for reconsideration of the April 11, 2008 order and leave to amend the complaint to add additional defendants. For the reasons that follow, we affirm.
In his complaint, plaintiff alleged that on September 11, 2005, at approximately 2:30 p.m., he injured his right leg while walking across a lawn in Weequahic Park in Newark, New Jersey (the "Park"). Plaintiff apparently was in the Park with his son and girlfriend. He was going to participate in a soccer game and he was waiting for the game to begin. The soccer coach suggested that plaintiff go to a nearby store to purchase some supplies and plaintiff agreed.
Plaintiff alleged that, as he walked across the lawn towards an exit near the main entrance to the Park, his right leg went into a hole or depression in the lawn. Plaintiff said that he fell backward onto his buttocks. With the assistance of his girlfriend and the coach, plaintiff returned to his home in New York City.
Plaintiff did not immediately seek treatment; however, several days later, plaintiff's friend drove him to a hospital in New York City. Plaintiff was diagnosed with a displaced fracture of the right tibia that extended into the pilon and articular surface. Plaintiff underwent two surgeries to stabilize and repair the fracture. He was unable to work for several months.
Plaintiff retained counsel on October 7, 2005. Counsel provided the County with notices of his claim pursuant to the Tort Claims Act (the "TCA"), N.J.S.A. 59:1-1 to 12-3. The County received the notices on November 18, 2005. The notices stated that plaintiff was seeking damages for injuries he had sustained on September 11, 2005, at approximately 2:30 p.m., when he fell to the ground after stepping in a hole while walking across a field in the Park.
The notices also stated that the injury occurred "in the area of the main exit from the soccer field approximately [nine feet] west of [the] macadam path and [sixty feet] east of a set of short metal benches and [twenty feet] south of a certain sewer/water vent." A drawing was attached to the notices identifying the specific location of the hole. Also attached to the notices were copies of twelve photographs that depicted the location of the hole.
Ronald Romano (Romano), an investigator for the County, responded to the notices by letter dated December 1, 2005. Romano stated that "there is no liability on the part of Essex County personnel[.]" Plaintiff thereafter filed his complaint on July 21, 2006.
Plaintiff provided the County with certified answers to interrogatories, dated October 18, 2006. In his answers, plaintiff again described the location of the fall as "approximately [nine feet] west of a macadam path and [sixty feet] east of a set of short metal benches and [twenty feet] south of a certain sewer/water vent." This was the same location that had been included in the notices of claim and shown on the attached diagrams.
In addition, plaintiff provided with his answers to interrogatories copies of twenty-four photographs of the site of the alleged accident, which included the photos submitted with the notices of claim. Plaintiff also described the hole in which he allegedly fell as being approximately one and one-half to two inches deep. He said that, at the time of the accident, the hole was "obscured by leaves and grass."
Plaintiff was deposed on April 18, 2007. He was shown several of the photographs that had been attached to the notices of claim and answers to interrogatories. Plaintiff testified that the photos did not appear to depict the hole in which he fell.
The attorneys present at plaintiff's deposition apparently realized that the photographs submitted with the notices of claim and the answers to interrogatories did not depict the place where plaintiff fell. On May 16, 2007, plaintiff furnished the County with copies of photographs, which showed a different hole in a different location of the Park.
Plaintiff thereafter served a report dated July 25, 2007, from his expert, Wayne F. Nolte (Nolte), Ph.D., P.E. Nolte attached to his report copies of photographs showing a large hole. In the report, Nolte stated that some of the photos had been taken "on the day of [the] accident" and some depicted the site as of July 9, 2007.
Nolte estimated that the hole shown in the photos was two feet in diameter and ten to twelve inches deep. He wrote that the photographs "show that the hole is a formed hole as if purposely dug either by hand or machine." He added that, "[t]he sides of the hole are rounded and worn and show that it was not freshly dug but had been there for some time."
Nolte additionally wrote that the hole was "directly over" the City's water main and a twelve inch pipe for the lawn basin. Nolte said that it appeared that the hole had been purposefully made as part of the repair and maintenance of one of the utilities. He added that:
[t]he fact that this hole contained what appears to be assembled bricks, rocks and stones as filler suggests that its presence was known and that an attempted repair was made but not made to the extent where it was a safe or reasonably safe repair. It is also evident from the photographs that vegetation and dried leaves blew into the hole indicating that it was not something that developed only seconds before [plaintiff's] accident.
After receiving Nolte's report, Carmen Raimo (Raimo), the County's Superintendent of Parks, compared the photos that were submitted with plaintiff's notices of claim and the photos attached to Nolte's report. Raimo concluded that the location shown in the photos provided with the notices of claim was different from the location shown in the photos attached to Nolte's report. Raimo determined that the locations were about one-hundred-forty-five feet apart.
On February 15, 2008, the County filed a motion to dismiss plaintiff's complaint because he had not complied with the TCA's notice of claim requirements. Plaintiff opposed the motion, arguing that he had substantially complied with the statute. Plaintiff further argued that the County should be equitably estopped from seeking dismissal of the complaint because more than a year had passed since the County had become aware of the allegedly "correct" accident site and, in that time, the County had continued to participate in discovery. According to plaintiff, the County had led him to believe that it would not raise the failure to comply with the TCA as a defense to his lawsuit.
The trial court considered the motion on April 11, 2008, and, after hearing the arguments of counsel, entered an order granting the motion. On April 15, 2008, the court placed its decision on the record. The court concluded that plaintiff had not substantially complied with the statutory notice requirements.
The court noted that plaintiff had informed the County of an allegedly dangerous condition that was different "from the actual site and is located some [one-hundred-forty] to [one-hundred-fifty] feet away." The court also noted that "[a] shallow and wide depression in the ground is much different from what appears to be in this case a manmade hole one foot deep."
The court additionally found that the County was not equitably estopped from seeking dismissal of the complaint for failure to comply with the notice of claim requirements in the TCA. The court observed that plaintiff had not been prejudiced by relying on defendant's actions. Plaintiff's failure to comply with the TCA's notice requirements was not due to an action by the County. According to the court, the County had no way of knowing where the accident had actually occurred and did not learn where plaintiff fell until the time of his deposition.
Moreover, on June 25, 2007, the County had informed plaintiff that it was reserving the right to seek dismissal of the complaint for failure to comply with the TCA. The court found that, although some discovery continued after that date, the County did not "create the objective impression that [it] was waiving the notice requirement and the defenses."
On or about May 8, 2008, plaintiff filed a motion for reconsideration of the trial court's April 11, 2008 order and for leave to amend its complaint to add the African American Heritage Parade Committee, Inc. (the "Parade Committee"), Blue Sky Amusements & Entertainment, Ltd. ("Blue Sky"), and certain fictitious persons and entities as defendants.
The court considered plaintiff's motions on June 20, 2008, and rendered a bench decision on that date. The court found no basis to reconsider its previous determination dismissing plaintiff's complaint. The court further found that amendment of the complaint would be futile because the claims against the Parade Committee, Blue Sky and the fictitious persons and entities had not been asserted within the time required by the two-year statute of limitations for personal injury claims. The court stated that the relation-back rule in Rule 4:9-3 did not apply and the statute of limitations was not tolled by the discovery rule. The court entered an order dated June 20, 2008, denying plaintiff's motions. This appeal followed.
We turn first to plaintiff's contention that the trial court erred by granting the County's motion to dismiss his complaint on the ground that plaintiff failed to comply with the TCA's notice of claim requirements.
The TCA provides that an action may not be brought against a public entity or public employee unless the claim upon which it is based has been presented in the manner prescribed by the Act. N.J.S.A. 59:8-3. The TCA states, in pertinent part, that a claim relating to a cause of action for injury to a person shall be presented "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8.
The TCA also states that the notice of claim must include, among other information, "[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. The TCA precludes a claimant from bringing a lawsuit until six months after the date the notice of claim is received. N.J.S.A. 59:8-8.
The TCA's notice requirements were created to achieve several purposes. Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (citing Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)). The requirements allow the public entity at least six months to review the claim and to settle claims deemed to be meritorious. Ibid. (citing Beauchamp, supra, 164 N.J. at 121). They provide the public entity with prompt notice of the claim to allow the public entity to investigate the facts and prepare a defense. Ibid. (citing Beauchamp, supra, 164 N.J. at 121-22). The requirements also afford the public entity an opportunity to correct conditions or practices that gave rise to the claim, and inform the public entity of the liability that it may be expected to meet. Ibid. (citing Beauchamp, supra, 164 N.J. at 122). It is undisputed that plaintiff's notices did not provide the County with the correct location of the fall. Rather, the notices of claim indicated that plaintiff had fallen in a hole or depression that was about one-hundred-forty-five feet from the location where he later claimed the accident had actually occurred. The notices of claim also indicated that the hole was about two-and-one-half inches deep and three-and-one-half-feet wide, while plaintiff later claimed that the hole was twelve inches deep and ten inches wide.
In our judgment, plaintiff's notices of claim failed to meet the requirements of N.J.S.A. 59:8-4 because the notices did not accurately identify the "place" where the alleged fall occurred. The notices actually described a "place" where the accident did not occur. We are therefore convinced that the trial court correctly determined that plaintiff's notices were materially deficient and he was barred from pursuing his claims against the County.
Plaintiff argues, however, that he substantially complied with the TCA's notice requirements. We disagree. In order to preserve a claimant's right to proceed, the notice of claim "must substantially comply with the statutory content requirements." Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 679 (App. Div. 1999). Compliance with N.J.S.A. 59:8-4(c) requires the claimant to "give some indication of the asserted basis of the public entity's liability." Id. at 680. The claimant must provide information that will "permit the public entity promptly to investigate the claim." Ibid.
In Newberry, the plaintiffs were injured in an automobile accident. Id. at 673. The plaintiffs alleged that the accident occurred because their car was hit by another vehicle that ran a stop sign. Id. at 673-74. The plaintiffs submitted a timely notice of claim to the Township, which stated that another vehicle ran a stop sign at an intersection and struck their vehicle. Id. at 674. The Township acknowledged receipt of the notice but said that the plaintiffs had to complete and return the Township's own tort claim notice form, which had been adopted pursuant to N.J.S.A. 59:8-6. Ibid.
The plaintiffs did not return the completed form until after the ninety-day period prescribed by N.J.S.A. 59:8-8. Ibid. The plaintiffs' claim form stated that the Township and its employees were negligent because they had not removed and trimmed tree branches that covered the stop sign at the intersection where the collision occurred. Ibid. The Township declined to accept the notice because it was untimely and refused to accept the earlier-submitted notice because it had not been submitted on the Township's approved form. Ibid.
We held that the initial notice of claim was not deficient merely because the plaintiff's had not completed and submitted the Township's prescribed claim forms. Id. at 676-79. We concluded, however, that the notice was deficient. Id. at 680. We stated:
All this notice said was that the claimants were struck by a vehicle running a stop sign. We agree with the Township that the notice failed to give it any reasonable clue as to what act or omission might have made it liable for that unfortunate occurrence.
It was not until six months after the accident that the Township was first apprised of the possibility that the stop sign might have been obscured by foliage that was within its obligation to trim. [Ibid.]
In this case, plaintiff's notices of claim failed to provide information required for a prompt investigation of his claim. In his notices, plaintiff asserted that he fell into a specific hole, whose location was specifically described. The alleged accident site was shown on a hand-written diagram and also depicted in a series of photographs provided with the notices. It subsequently became clear, however, that the hole described in the notices of claim was not the hole in which plaintiff allegedly fell.
Thus, plaintiff's notices of claim did not give the County any indication of the actual basis for its liability in the matter. Plaintiff failed to identify the "place" where he allegedly fell. The notices provided information that allowed the County to investigate a claim but it was not the claim that plaintiff ultimately asserted in his lawsuit.
Plaintiff nevertheless argues that he was diligent in the prosecution of his claim. He notes that he submitted his notices of claim within the time required by the TCA. He also asserts that his investigator made an "honest" mistake by taking photographs of the wrong hole. Plaintiff says that there is no reason to "punish" him for the investigator's error.
We reject plaintiff's assertion that enforcement of the TCA's notice requirements constitutes a form of "punishment." Furthermore, although plaintiff's investigator may have made an "honest" mistake when he photographed the alleged accident site, the fact remains that plaintiff's notices of claim did not identify the "place" where plaintiff allegedly fell and, for this reason, failed to comply with the requirements of N.J.S.A. 59:8-4(c).
Plaintiff further argues that the County was not prejudiced by his misidentification of the accident site because the County did not investigate his claim. He asserts that if the County had been interested in investigating the claim, "it would have been obvious where the accident occurred."
It appears, however, that based on its review of the notices of claim, the County did not deem plaintiff's claim of sufficient merit to warrant a further investigation. Moreover, even if the County had undertaken a further investigation of the claim, it would not have been "obvious where the accident occurred."
The hole in which plaintiff allegedly fell was between one-hundred-forty-five and one-hundred-fifty feet from the hole identified in the notices of claim. The County could reasonably assume that the accident occurred at the spot shown in the notices of claim and it was not "obvious" that the accident occurred somewhere else.
Plaintiff also argues that the County should have been equitably estopped from seeking dismissal of his complaint. In support of that contention, plaintiff relies upon Hill v. Bd. of Educ. of Middletown, 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982). In that case, the plaintiff failed to provide the public entity with notice as required by the TCA. Id. at 38-39. The public entity had not, however, specifically pled the lack of compliance with the TCA's notice requirements in its answer. Id. at 40-41.
Moreover, the public entity waited over two and one-half years to file a motion raising the issue and, in the interim, had "obtained complete discovery in the form of answers to interrogatories, depositions and a physical examination." Id. at 41. We held that the public entity was estopped from asserting that the plaintiff's action was barred due to the failure to comply with the TCA's notice requirements. Id. at 41. The court noted that the public entity's "conduct created the objective impression that it was waiving the notice requirements, especially in view of its failure to properly plead this defense." Ibid.
In our judgment, plaintiff's reliance upon Hill is misplaced. In this matter, the County initially engaged in discovery based upon the assumption that plaintiff had correctly identified the accident location in his notices of claim and answers to interrogatories. It was not until plaintiff was deposed on April 18, 2007, that the County became aware that plaintiff may have identified the wrong hole in his notices of claim. On May 16, 2007, plaintiff provided the County with copies of photos that he said depicted the correct hole.
The County informed plaintiff on June 25, 2007, that it was amending its answers to interrogatories to include plaintiff's failure to comply with the TCA's notice requirements as an affirmative defense to his claims. The County further informed plaintiff that it was reserving the right to seek dismissal of plaintiff's complaint on this basis. The parties thereafter engaged in some additional discovery and the County filed its motion to dismiss on February 15, 2008.
We are satisfied that, under the circumstances, the County did not "create the objective impression that it was waiving the notice requirements[.]" Ibid. We conclude that the trial court correctly determined that the County could not be estopped from asserting that plaintiff's failure to comply with the TCA's notice requirements barred him from pursuing the claims against it in this lawsuit.
We next consider plaintiff's contention that the trial court erred by denying his motion to amend the complaint to add the Parade Committee, Blue Sky and certain fictitious persons and entities as defendants.
The following facts are relevant to our consideration of plaintiff's argument. In his complaint, plaintiff did not name any fictitious parties as defendants and, prior to the expiration of the statute of limitations on personal injury claims, did not move to amend the complaint to add such parties.
In discovery, plaintiff demanded answers to form interrogatories as well as supplemental interrogatories. Among other things, plaintiff asked whether the County had ever entered into an agreement with any person or entity whereby the County would be indemnified if the County were found liable in this action. The County replied, "Not applicable." Plaintiff also asked whether anyone other than the County had any interest, custody or possession or was in charge of the subject premises. The County's response indicated that this inquiry was not applicable.
In June 2007, plaintiff deposed Raimo, the County's Superintendent of Parks. He was shown photos that plaintiff had produced after his deposition, which showed what plaintiff said was the correct accident site. Raimo said that the hole shown in the photos appeared to have been "man made." He stated that he did not recall any event scheduled in the Park that might "explain the existence" of the hole. Raimo added that a list of events would be available through the County's Parks Department.
Following the deposition, plaintiff's counsel contacted the County's attorney and asked that he provide any available information concerning permits that were issued for use of the Park "for a reasonable period of time before the September 11, 2005 accident." It appears that the County's attorney informed plaintiff's counsel that a search had been conducted and no permits had been found.
On April 2, 2008, the County served upon plaintiff's counsel an amendment to its answers to interrogatories, indicating that a special permit had been issued to the Parade Committee for a festival held in the Park on September 2 through 5, 2005. The County provided plaintiff with copies of certain documents, including the permit; the permit application; a hold-harmless agreement between the County and the Parade Committee; a certificate of insurance from Blue Sky, in which it agreed to defend, indemnify and hold the Parade Committee and the County harmless; and a memo from the Parade Committee regarding preparations for the festival.
Plaintiff then moved to amend his complaint to add the Parade Committee, Blue Sky and certain fictitious persons and entities as defendants. The trial court denied the motion. Plaintiff argues that the trial court erred in doing so. We disagree.
After a responsive pleading has been filed, a plaintiff may not amend the complaint except with the consent of the opposing party or "by leave of court which shall be freely given in the interest of justice." R. 4:9-1. A motion to amend a pleading is committed to the sound discretion of the trial court. Kernan v. One Washington Park, 154 N.J. 437, 457 (1998) (citing Pressler, Current N.J. Court Rules, comment on R. 4:9-1 (1998)).
Motions to amend pleadings should be liberally granted "'unless undue prejudice would result.'" Ibid. (quoting Pressler, supra, Current N.J. Court Rules, comment on R. 4:9-1). Furthermore, the trial court may deny the motion when the amendment is so meritless that the claim would be subject to dismissal for failure to state a claim upon which relief could be granted. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).
We are satisfied that the trial court did not abuse its discretion by denying plaintiff's motion. The applicable statute of limitations had run upon the claims that plaintiff wished to assert against the Parade Committee, Blue Sky and the fictitious persons and entities. Thus, had the court granted the amendment, the claims against the new defendants would have been immediately subject to dismissal for this reason.
Moreover, contrary to plaintiff's argument, the relation-back rule does not apply in this case. Rule 4:9-3 states that "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading[.]" When a proposed amendment to a pleading seeks to add additional parties, the relation-back rule will apply if: within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment. [Ibid.]
The relation-back rule does not apply here because the Parade Committee, Blue Sky and other potential defendants did not have notice that plaintiff had commenced this action until plaintiff filed his motion to amend the complaint in May 2008. Moreover, these potential defendants would be prejudiced if they had to investigate and defend against a claim that arose in September 2005.
Plaintiff argues that, when the Parade Committee and Blue Sky sought the permits and agreed to indemnify the County for claims arising from the use of the Park, the Parade Committee and Blue Sky had sufficient notice of the potential for personal injury claims. We disagree.
The Parade Committee and Blue Sky were not aware of plaintiff's claim until plaintiff filed his motion to add them as defendants in this case. Moreover, the Parade Committee and Blue Sky may have been aware that claims for personal injuries may arise from the festival but they had every reason to believe that, if such a claim arose, it would be asserted in a timely manner.
Plaintiff also contends that the discovery rule should be applied and the statute of limitations tolled because he did not discover until April 2008 that other persons and entities might be liable for the injuries he sustained on September 11, 2005. Again, we disagree.
As the trial court noted in its bench decision, although the County initially advised plaintiff that records related to the use of the Park at the time of the accident had not been found, plaintiff was not precluded from seeking those records directly from the County's Parks Department. Moreover, the festival was an event open to the public. We can reasonably assume that the fact that a festival was taking place in the Park from September 2 through 5, 2005, had been reported in the press.
We have considered all of the other arguments raised by plaintiff and are convinced that those arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
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