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In re Bell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 27, 2010

IN THE MATTER OF JAMIE BELL, SURVIVING SPOUSE, ON BEHALF OF THE ESTATE OF STEVEN CHARLES BELL.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-133-09.

The opinion of the court was delivered by: Per Curium

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 23, 2010

Before Judges Chambers and Kestin.

These two appeals, arising from the same trial court proceeding, have been calendared to be considered together. On June 2, 2010, appellants in A-3755-08T2, City of Vineland and the City of Vineland Police Department, filed a stipulation dismissing their appeal. We now proceed to decide the remaining matter, A-3736-08T2, on the merits.

On March 6, 2009, the trial court entered an order permitting plaintiff, Jamie Bell, to file a late notice of her claim against various public entities and officers pursuant to N.J.S.A. 59:8-9, a provision of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. In A-3736-08T2, Cumberland County Jail, Warden Glenn Saunders, Captain Kenneth Lamcken, Clerk of Cumberland County, and Cumberland County Board of Chosen Freeholders (collectively "the County defendants"), appeal from that order.

The trial court's order also permitted the filing of a late notice of claim upon other public entities and officers. The State of New Jersey, Department of Corrections, Attorney General of New Jersey, and Commissioner George W. Hayman, although they appeared in the trial court, have not filed an appeal from the trial court's ruling. They have, however, apparently as respondents in both appeals, filed a letter brief in support of the positions advanced by the defendants.

The facts of the matter pertinent to the motion are not in dispute. Given the posture of the case, the facts certified by plaintiff are taken as true. Cf. Lieberman v. Port Auth., 132 N.J. 76 (1993) (motions to dismiss).

Plaintiff's claim arises from the death of her husband, Steven Bell, from injuries sustained while he was an inmate in the Cumberland County jail. Mr. Bell had been arrested and incarcerated on December 31, 2007, in connection with a domestic violence incident. The couple had no contact with each other following Mr. Bell's arrest.

On January 8, 2008, plaintiff learned from a newspaper article that her husband had been transported, unconscious, to a hospital in Philadelphia. She learned on January 13, from another newspaper article, that he had died on January 10, while being treated at the hospital.

Police in New Jersey investigated the death as a possible homicide, questioning plaintiff regarding any involvement she might have had. Plaintiff alleges that, throughout February and March of 2008, she attempted to get details regarding her husband's death from the Cumberland County Prosecutor and the Philadelphia Medical Examiner, but received no response to any of her requests for information. In late March, she learned from a detective assigned to the case that she was no longer considered a suspect. In her affidavit submitted in support of her motion for leave to file a late claim, plaintiff states: "I was not told, nor did I believe at the time, that any employees of Cumberland County jail were responsible for Steven's death."

Eventually, only after making a personal visit to the Philadelphia Medical Examiner's office and paying copying fees, plaintiff, in late August, received mailed copies of the autopsy report and death certificate. She learned from these documents that her husband had sustained a head injury, the cause of death set out in the death certificate, and had possibly been assaulted while in the Cumberland County jail. A neuropathology report indicated that decedent may have suffered from encephalitis secondary to an unknown virus, that the infection could have caused aberrational behavior on his part, and that he might have been assaulted. A section of that report contained a "comment" speculating on possible scenarios for the death:

The brain of this young man contains a bewildering combination of lesions for which, at the moment, there is inadequate clinical correlation. In considering the three types of lesions, the following sequence of events might be postulated:

1. Patient develops encephalitis secondary to an unknown virus, which primarily affects the limbic system and thalamus, areas of the brain that are involved in emotional behavior. He possibly manifests behavioral aberrations.

2. The abnormal behavior might have elicited such a negative response from others in his environment that one or more persons assaults him. The primary assault would have involved multiple blows to the head of such severity as to render him unconscious. It is also possible that the assault was not provoked by anything in particular, and that the encephalitis was a clinically silent infection.

3. The severe head trauma produced extensive brainstem injury which would be expected to interfere with normal cardio-respiratory function. This would account for the hypoxic-ischemic lesions identified post-mortem.

It should be understood that whereas these comments are conjectural, the autopsy findings are clear[-]cut and firm. Unfortunately, incomplete clinical and investigational information does not allow further confident clinical-pathological correlation.

Following receipt of these documents, plaintiff sought an attorney to represent her. She contends that, despite repeated efforts, she could find none until mid-January 2009, when current counsel agreed to represent her. The motion for leave to file a late claim was filed shortly after counsel was engaged, returnable March 6, 2009.

The Tort Claims Act requires that notice of a claim be served upon the public entity to be charged "not later than the ninetieth day after accrual of the cause of action," and permits suit to be filed "[a]fter the expiration of [six] months from the date notice of claim is received," as long as it is filed within two years from the date the cause of action accrued. N.J.S.A. 59:8-8, 9. A court may grant leave to file a late notice of claim within one year from the date of accrual "provided that the public entity . . . has not been substantially prejudiced" by the delay, and the movant has "show[n] sufficient reasons constituting extraordinary circumstances for [the] failure to file notice of claim within the [ninety-day] period[.]" N.J.S.A. 59:8-9.

Analyzing the factual background presented and the arguments of counsel, Judge Michael Brooke Fisher, in an oral opinion, concluded that plaintiff's cause of action accrued no earlier than March 2008, when she was informed she was no longer a suspect in her husband's homicide and, therefore, had an enhanced opportunity to acquire factual details; and that, given the particular facts at hand, the "extraordinary circumstances" requirement of the statute had been satisfied to justify a late filing of notice within a year of that time. Judge Fisher characterized this ruling as "such a close call."

In their appeal, the County defendants argue:

POINT ONE

THE COURT MUST DENY PLAINTIFF'S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM BECAUSE PLAINTIFF FAILED TO FILE SAID MOTION WITHIN 90 DAYS OR ONE YEAR OF THE DATE OF ACCRUAL.

POINT TWO

PLAINTIFF HAS FAILED TO ARTICULATE "EXTRAORDINARY CIRCUMSTANCES" TO JUSTIFY FILING A TORT CLAIMS NOTICE 90 DAYS AFTER THE CAUSE OF ACTION ACCRUED.

Our review of the record discloses that the facts of this matter were special and unique, and that Judge Fisher did not exceed the bounds of the discretion reposed in him by statute when he regarded them, in this "close call" situation, as satisfying the "extraordinary circumstances" standard. See Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). The result he reached was in keeping with the policy "that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Feinberg v. State, 137 N.J. 126, 135 (1994) (quoting S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122 (1977))).

Plaintiff, as a potential suspect in the homicide investigation, was clearly in no position to demand background facts that she needed in order to determine whether a potential tort claim existed against the public entities involved. And, when she was no longer a suspect, she proceeded, within the time period allowed by statute, to acquire the needed background information. Such inertia as she may have experienced between March and August 2008 in acquiring the documentation she sought cannot, in justice, be entirely charged against her, further justifying a tolling of the ninety-day requirement. And, the search for representation she recounted can also be seen as within the bounds of reason.

Until plaintiff knew that her husband had died because of traumatic injuries inflicted on him while he was in the custody of Cumberland County, she could have no reason to perceive that a claim against the County defendants and others would lie. The mere fact of her husband's death while in custody was not enough. A reasonable person of ordinary prudence could not assume from the death alone that tortious conduct might have been the cause. Cases applying the discovery rule provide an analogy. See, e.g., Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). It was not until plaintiff learned, or had the opportunity to learn, that the acts of another might have been the cause of her husband's death, that she could fairly be held to the standards of the Tort Claims Act. See Feinberg, supra, 137 N.J. at 134-135; Servis v. State, 211 N.J. Super. 509, 514 (Law Div. 1986).

Affirmed.

20100727

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