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McDade v. Siazon

December 8, 2009

MICHAEL MCDADE AND PAMELA MCDADE, PLAINTIFFS-RESPONDENTS,
v.
RODOLFO SIAZON, AURORO SIAZON, COUNTY OF ATLANTIC, AND DEF CONTRACTOR, DEFENDANTS, AND EGG HARBOR TOWNSHIP MUNICIPAL UTILITY AUTHORITY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-109-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2009

Before Judges Rodríguez, Yannotti and Chambers.

By leave granted, Egg Harbor Township Municipal Utilities Authority (MUA) appeals from an order entered by the trial court on April 25, 2008, denying its motion for summary judgment. For the reasons that follow, we reverse.

On January 22, 2006, at approximately 9:00 p.m., plaintiff Michael McDade (McDade) was walking his dog on the sidewalk of Canterbury Road in Egg Harbor Township, New Jersey (Township). McDade allegedly tripped on a pipe that was protruding upward from the sidewalk and fell to the ground. McDade alleges that, as a result of his fall, he sustained injuries to his right shoulder, right knee and right hand, which required surgery and kept him out of work until August of 2006.

McDade consulted an attorney, who forwarded notices of tort claim dated April 13, 2006, to the Township, the County of Atlantic (County) and the State of New Jersey (State). On April 24, 2006, Scibal Associates, Inc. (Scibal), the Township's claims administrator, wrote to McDade's attorney and advised that it was handling the claim. Scibal asked for additional information concerning the claim. On August 17, 2006, Scibal notified McDade's attorney that its investigation "revealed that the pipe sticking out of the sidewalk was a sewer clean-out pipe [that] is under the jurisdiction of the" MUA. Scibal said that the Township had no liability in the matter.

At some point, McDade retained new counsel. On August 22, 2006, McDade's new attorney wrote to the MUA and provided the MUA with a copy of the notice of claim that had been previously served upon the Township, County and State. In a cover letter, counsel stated that the MUA's "governing body" had been notified of the incident on April 13, 2006, by certified mail. Counsel added that he learned on August 21, 2006, that McDade's injury was caused by the MUA's negligence.

Scibal also is the claims administrator for the MUA. On September 15, 2006, Scibal wrote to McDade's attorney and asked for a copy of the "certified mail tag" indicating that the MUA had previously been notified of the claim. Scibal also asked for additional information regarding the claim. On November 20, 2006, McDade's attorney provided Scibal with information concerning the claim, including a photograph of the pipe in question. Scibal responded on December 19, 2006, and advised that it was still investigating the matter. It appears that Scibal never advised McDade's attorney of the results of its investigation.

On January 7, 2008, McDade and his wife Pamela McDade filed a complaint in the Law Division, asserting claims against Rodolfo Siazon and/or Auroro Siazon, the Township, the MUA, the County, DEF Contractor and certain fictitious parties, alleging that they suffered damages as a result of a dangerous and hazardous condition, specifically the pipe protruding upward from the sidewalk on Canterbury Road in the Township.

Plaintiffs alleged, among other things, that the MUA and/or the County "owned, controlled, operated and/or maintained the public sidewalk" in question. They asserted that the MUA and/or the County owed a duty to exercise reasonable care for the safety of pedestrians and "failed to properly discharge [that] duty."

In lieu of filing an answer, the MUA filed a motion for summary judgment and argued that plaintiffs' claims failed as a matter of law because they had not served a notice of claim upon the MUA within the time prescribed by the Tort Claims Act, N.J.S.A. 59:1-1 to 13-10 (TCA). The trial court considered the motion on April 25, 2008, and filed a written opinion on that date in which it concluded that the motion should be denied.

The court applied the discovery rule and determined that plaintiffs' claims against the MUA did not accrue on January 22, 2006, when McDade fell, but on August 21, 2006, when plaintiffs learned that the pipe in question was "actually owned" by the MUA. The court noted that plaintiffs did not conduct any investigation to determine the "true owner of the pipe[.]" The court found, however, that it was "entirely reasonable for a party to believe that a pipe protruding from a sidewalk is owned and maintained by the public entity to whom the public right-ofway for the sidewalk has been dedicated." The court additionally found that the MUA had not shown that it would be prejudiced by applying the discovery rule in this case.

The court accordingly entered an order dated April 25, 2008, denying the MUA's motion for summary judgment. The MUA filed an appeal from the order pursuant to Rule 2:2-3(a). We dismissed the appeal because the order was not a final judgment from which an appeal could be taken as of right and the MUA had not sought leave to appeal pursuant to Rule 2:5-6(a). We later granted the MUA's motion for ...


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