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Lavonne Johnson, As Administrator Prosequendum For Danny Garry,Deceased, and v. East Orange Police Department

December 8, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8158-09.

Per curiam.


Argued November 9, 2010 and telephonically November 17, 2010

Before Judges Parrillo and Yannotti.

Plaintiff Lavonne Johnson appeals from an order entered by the Law Division on November 6, 2009, denying her motion for leave to file late notices of claim against defendants pursuant to the Tort Claims Act (TCA or The Act), N.J.S.A. 59:1-1 to 12-3. We reverse.

The following are the relevant facts, drawn from the record before the trial court on plaintiff's motion. On July 24, 2008, plaintiff's aunt called and informed plaintiff that plaintiff's father, Danny Garry (Garry), had passed away that morning. She told plaintiff that Garry was involved in an automobile accident and died at East Orange General Hospital. Plaintiff said that she knew little about the accident, other than that it had occurred in East Orange.

Plaintiff stated that, at Garry's funeral, his friends told her that they believed a police vehicle had been involved in the accident. Someone mentioned that the accident occurred the day before Garry died. Plaintiff also stated that she did not know the actual cause of her father's death. Plaintiff assumed, however, that her father died as a result of the injuries sustained in the accident.

A few weeks later, plaintiff contacted the East Orange Police Department (EOPD) and asked whether she could obtain a copy of the police report concerning the accident or speak to someone about the circumstances of her father's death. Plaintiff was told that the Essex County Prosecutor's Office (ECPO) was investigating the matter and the EOPD could not provide any information to her at the time.

Thereafter, Detective Howard Johnson (Johnson) of the ECPO contacted plaintiff and advised her that the ECPO was investigating her father's death. Howard said that he could not discuss the specifics of the case. Howard asked plaintiff questions about her father and indicated that he was investigating whether Garry's girlfriend had pushed him down the stairs, causing his death. Howard told plaintiff he would contact her when the investigation was concluded.

In June 2009, Howard spoke to plaintiff and informed her that the investigation was complete. Howard told plaintiff that she would have to retain an attorney to obtain a copy of the investigative file. Plaintiff contacted her attorney in July 2009 and counsel said that he would take steps to obtain a copy of the investigative report for her review. Plaintiff's attorney thereafter filed a motion with the Law Division seeking release of designated portions of the prosecutor's investigative file. By order dated July 27, 2009, the court granted the motion.

On September 9, 2009, plaintiff's attorney obtained a copy of portions of the investigative file and provided it to plaintiff. Plaintiff reviewed the information and learned that Garry had been involved in an automotive accident on July 22, 2008, and thereafter was transported to University Hospital at the University of Medicine and Dentistry of New Jersey (UMDNJ).

According to the investigative file, Garry was treated at University Hospital and then released. He was taken to his girlfriend's home in East Orange and, on the following day, lost his balance several times. Garry returned to University Hospital, where he died on July 24, 2008.

The investigative file also indicated that Garry's autopsy revealed that he died from a splenectomy resulting from blunt trauma sustained in the accident. In his investigative report, Howard stated that he had spoken with a doctor in the Northern Regional Medical Examiner's Office, who said that Garry was probably bleeding after his discharge from the hospital and his condition had progressively worsened. Plaintiff stated that this was the first time she learned that her father had been treated at University Hospital and died from a ruptured spleen.

The investigative file additionally revealed that the police vehicle involved in the collision had been responding to an emergency call when it collided with the vehicle in which Garry was riding as a passenger. The investigative report stated that a witness had reported that, at the time of the accident, the police vehicle was being operated without its lights or a siren. Plaintiff stated that, from the report, ...

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