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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 8, 2010

LAVONNE JOHNSON, AS ADMINISTRATOR PROSEQUENDUM FOR DANNY GARRY,DECEASED, AND LAVONNE JOHNSON, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
EAST ORANGE POLICE DEPARTMENT,
EAST ORANGE GENERAL, UNIVERSITY HOSPITAL AND
STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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, she learned for the first time the names of the officers involved and that they were employed by the EOPD.

On October 1, 2009, plaintiff filed a motion seeking leave to file late notices of claim against defendants. The trial court entered an order dated November 6, 2009, denying the motion. On the order, the court wrote that plaintiff had been aware of the circumstances surrounding Garry's death, specifically that he had been involved in an auto accident involving the EOPD. The court noted that plaintiff failed to exercise reasonable diligence in seeking information concerning the accident, and the reasons for her delay in contacting an attorney did not constitute extraordinary circumstances that would justify granting leave to serve late notices of claim against defendants. This appeal followed. Plaintiff argues that the trial court erred by denying her motion for leave to file late notices of claim against defendants. We agree.

The TCA provides that an action may not be brought against a public entity or public employee unless the claim upon which it is based has been presented in the manner prescribed by the Act. N.J.S.A. 59:8-3. The Act states that a claim relating to a cause of action for injury to a person shall be presented "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8.

The TCA further provides that, if a claimant does not file a notice of claim within the time prescribed by N.J.S.A. 59:8-8, the court may in its discretion permit the filing of such a notice within one year of the accrual of the claim "provided that the public entity or the public employee has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. The claimant must establish "sufficient reasons constituting extraordinary circumstance for his [or her] failure to file" a timely notice of claim. Ibid.

In determining whether a notice of claim is timely, or whether a claimant should be permitted leave to file a late notice of claim, the critical date is that upon which the claim accrued. "Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000).

"Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Id. at 117. The discovery rule provides an exception to this "well established notion of accrual." Ibid. The purpose of the discovery rule "'is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations.'" Abboud v. Viscomi, 111 N.J. 56, 62 (1988) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987)).

The rule "'postpon[es] the accrual of a cause of action' so long as a party reasonably is unaware either that he has been injured or that the injury is due to the fault or neglect of an identifiable individual or entity." Id. at 62 (quoting Vispisiano, supra, 107 N.J. at 426). "Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware 'of that state of facts which may equate in law with a cause of action.'" Id. at 63 (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)).

We are convinced that the trial court erred by refusing to permit plaintiff to file a late notice of claim against the EOPD. Although plaintiff was aware on July 24, 2008, that her father had been involved in an automobile accident and thought that he died as a result of the injuries sustained in the accident, plaintiff did not obtain facts indicating that she might have a claim against the EOPD or its officers until she obtained a copy of portions of the investigative file on September 9, 2009.

In our view, plaintiff acted with reasonable diligence in endeavoring to obtain relevant facts about the accident. As we have explained, plaintiff contacted the EOPD and was told that it could not release any information to her concerning the accident at the time because the ECPO was investigating the matter. Plaintiff contacted the ECPO and Howard told her that he could not disclose any information concerning the accident since the matter was under investigation.

In July 2009, Howard contacted plaintiff and told her the investigation was complete. He advised plaintiff that she would have to retain an attorney to secure a copy of the investigative file. Plaintiff contacted her attorney, who promptly sought to obtain relevant portions of the investigative file. Plaintiff's counsel obtained the file and provided it to plaintiff on September 9, 2009. Plaintiff learned for the first time that an EOPD vehicle was involved in the accident and she might have a cause of action against the EOPD and the officers involved.

The EOPD argues, however, that plaintiff should have contacted her attorney earlier to obtain the investigative file. The EOPD also contends that plaintiff should have obtained a copy of the death certificate shortly after her father's death and the death certificate would have provided sufficient information to file a timely notice of claim. We disagree.

Plaintiff acted reasonably in waiting for the completion of the ECPO's investigation before retaining an attorney. The EOPD has not established that, had plaintiff retained an attorney earlier, she would have been able to obtain the ECPO's file during the ongoing investigation. Furthermore, even if plaintiff had obtained a copy of Garry's death certificate while the investigation was ongoing, the death certificate would not have provided facts indicating that plaintiff may have a claim against the EOPD and the officers involved in the accident.

We are also convinced that the trial court erred by failing to permit plaintiff to file a late notice of claim against UMDNJ. As we explained previously, plaintiff had been told that her father died at East Orange General Hospital. She reasonably believed that her father died as a result of injuries sustained in the accident.

Initially, plaintiff had no information suggesting that her father's death may have been due to some negligence on the part of the hospital where he had been treated. Indeed, until plaintiff obtained the investigative file on September 9, 2009, she was not aware that Garry had been treated at University Hospital, nor was she aware of any facts indicating that she might have a cause of action against UMDNJ.

UMDNJ argues, however, that plaintiff could have obtained Garry's death certificate, which would have revealed that Garry died at UMDNJ. UMDNJ further argues that plaintiff could have obtained a copy of Garry's medical records, which would have revealed sufficient facts suggesting that plaintiff might have a claim against the hospital. Again, we disagree.

Garry's death certificate may have indicated that he died at University Hospital, but it would not have provided any details concerning the treatment that he received there. Moreover, plaintiff had no reason to seek Garry's medical records because she reasonably believed that her father died as a result of the traumatic injuries sustained in the accident.

Furthermore, as we stated previously, plaintiff acted reasonably in waiting until the ECPO's investigation was concluded before seeking a copy of the investigative file. Only after obtaining a copy of portions of that file did plaintiff have information indicating that she might have a claim against UMDNJ related to the care her father received at University Hospital.

We are therefore convinced that, under the circumstances, the discovery rule tolled the time for accrual of any claims plaintiff may have against defendants. Plaintiff made a timely motion for leave to file late notices of claim against defendants, and she established that her failure to serve notices of claim upon defendants within the time required by N.J.S.A. 59:8-8 was due to extraordinary circumstances. Moreover, defendants have not shown that they would be substantially prejudiced if plaintiff were permitted to file notices of claim against them. N.J.S.A. 59:8-9. Accordingly, we conclude that the trial court erred by denying plaintiff's motion.

Reversed and remanded for further proceedings in conformity with this opinion.

20101208

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