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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...