On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-05-10 and L-48-10.
The opinion of the court was delivered by: Axelrad, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman*fn1 and J. N. Harris.
We consider whether "extraordinary circumstances" existed for the extension of the ninety-day Tort Claims deadline, N.J.S.A. 59:8-9, where plaintiffs' attorneys waited until they viewed the videotape depicting events relating to the motor vehicle accident, which they diligently requested, before filing the claims notices. The motion judge found such circumstances did exist. We agree.
These appeals were calendared back-to-back and are being consolidated for purposes of this opinion. Defendants, City of Brigantine, Brigantine Rescue Squad, and Greg Goff, appeal the March 2, 2010 order of the Law Division granting plaintiffs' motions to file late Tort Claims notices against them. N.J.S.A. 59:8-9. We affirm.
On March 3, 2009, Juan Mendez and his minor passenger Colleen Curran (referred to as "Felix," her guardian ad litem's name) were seriously injured when Mendez's vehicle struck a snow removal truck owned by the South Jersey Transportation Authority (SJTA) and parked on the left shoulder in the Atlantic City Expressway/Brigantine Connector Tunnel. Plaintiffs promptly filed Tort Claims notices against the SJTA, Atlantic City, Atlantic County, and the State of New Jersey based on the ownership of the vehicle and the location of the tunnel. N.J.S.A. 59:8-8.
On December 22 and 23, 2009, Felix and Mendez, respectively, filed Tort Claims notices against appellants, and shortly afterwards each filed suit for personal injuries. Plaintiffs then each filed a motion seeking: (1) a declaration that any cause of action against appellants accrued in mid- October 2009, when they received the videotape depicting the Brigantine ambulance operated by Goff attempting a lane change immediately prior to the accident, or, alternatively, (2) permission to file the late notices of claim against appellants. On February 19, 2010, the court issued identical letter opinions finding both plaintiffs had demonstrated "extraordinary circumstances" for the filing of their Tort Claims notices against appellants beyond the ninety-day deadline. N.J.S.A. 59:8-8; -9. The decision was memorialized in orders of March 2, 2010.*fn2 This appeal ensued.*fn3
The record reflects that when the police arrived at the scene, both plaintiffs were unconscious, having suffered severe head trauma and requiring ambulance transport to a nearby trauma center. They spent considerable time in hospitals and rehabilitation facilities and they had no recollection of events occurring immediately before or after the collision.
An investigation of the scene revealed that Mendez's vehicle was traveling southbound on the Atlantic City Expressway Connector and upon entrance to the tunnel he lost control of his vehicle, spun, ran off the road to the left, and struck the truck that was parked on the shoulder. The driver of the truck represented that he was standing outside his vehicle, speaking to the other snow plow drivers, and heard a crash but did not witness the collision. The initial police report also reflected that there were no witnesses to the accident.
A supplemental police report, designated a "change report," was prepared the following day by State Police Detective I. Richard Brunett. Pertinent to this appeal, the report discussed video footage recorded by two cameras located in the tunnel, which the detective described as follows:
The first camera depicts an Ambulance traveling southbound within the left lane and the Mendez Saturn traveling in the right lane approximately 2 car lengths behind the ambulance. The Mendez Saturn appears to be traveling at the same speed as the ambulance.
The 2nd camera depicts the three International Dump Trucks within the left shoulder and their occupants standing between the 2nd and 3rd International dump truck. The camera then captures the Ambulance passing the International dump trucks and the last International dump truck rocks from side to side from an apparent impact. The camera then depicts the occupants that were ...