On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3899-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: January 14, 2011 -Decided: January 26, 2011
Before Judges Axelrad and Lihotz.
Defendant Borough of Bellmawr appeals from the January 8, 2010 order of the Law Division granting plaintiff's*fn1 motion to file a late tort claims notice under N.J.S.A. 59:8-9.
Plaintiff was employed by the Camden County Department of Health at its clinic located at 35 East Browning Road in Bellmawr. Plaintiff alleges she slipped and fell on ice and snow in the parking lot of the property on March 3, 2009, retained counsel to pursue a workers' compensation claim, and thereafter received medical treatment through her employer's workers' compensation carrier. The county building where plaintiff worked abuts the Bellmawr library and municipal building and the parking lot is common to all three buildings.
On or about July 7, 2009, plaintiff alleges she slipped and fell on an uneven sidewalk surrounding the property. Plaintiff certified this was the first time she became aware, through her supervisors, that the maintenance and repair of the building and parking lots, as well as the snow and ice removal activities, were the responsibility of Bellmawr. She promptly notified her attorney of this information.
Plaintiff filed a motion to file a late tort claims notice against Bellmawr. Plaintiff certified that at the time of the incident she "believed" the property was "County Property because the county was providing . . . medical treatment under or through Workers' Compensation." She learned, however, following her July 2009 fall, that the repair, maintenance and snow and ice removal of the parking lot were Bellmawr's responsibility.
Due to a service problem, plaintiff's motion was not ultimately ruled on until oral argument on January 8, 2009. The court granted the motion, finding plaintiff demonstrated "extraordinary circumstances" for the filing of her tort claims notice against Bellmawr beyond the ninety-day deadline, N.J.S.A. 59:8-8; -9, because it was reasonable for her to assume the property was owned by the County based on its payment of her medical bills through workers' compensation. The court further found the public entity was not "substantially prejudiced" by the late claims notice. N.J.S.A. 59:8-9. Following entry of the order on that date, this appeal ensued.
Bellmawr argues the court abused its discretion in ruling that plaintiff demonstrated both prongs of N.J.S.A. 59:8-9 warranting late-filing relief. It emphasizes that although the decision to grant permission to file a late notice under the Tort Claims Act (TCA) "within the one year period is a matter left to the sound discretion of the trial court," Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988), we can reverse if we conclude the court's ruling was "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." See Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citations omitted). Based on our review of the record, we are satisfied the trial court did not apply the applicable law to the facts and circumstances presented by plaintiff in support of her motion, mistakenly exercising its discretion.
The deadline to serve a timely notice of claim with a public entity under the TCA is ninety days after accrual of a claim. N.J.S.A. 59:8-8. If that deadline is not met, the claimant may only serve a late notice of claim with the permission of the court. N.J.S.A. 59:8-9. To file a late notice, the claimant must demonstrate extraordinary circumstances and that the public entity is not substantially prejudiced. Ibid. It is undisputed plaintiff failed to timely file a tort claims notice following her March 3, 2009 slip and fall incident.
Our Supreme Court has viewed the extraordinary circumstances language as part of an effort "to raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)). What constitutes extraordinary circumstances is not statutorily defined and is determined on a case-by-case basis after consideration of the facts. Lowe, supra, 158 N.J. at 626. In determining whether extraordinary circumstances exist, "a judge must consider the collective impact of the circumstances offered as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).
Where discovering the identity of a responsible party is not thwarted by the original defendant, the issue becomes "whether [the] plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor." Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008). Extraordinary circumstances have not been found to exist when failure to file a timely notice of claim results from the claimant's or counsel's failure to conduct a reasonable and timely investigation. See Blank v. City of Elizabeth, 318 N.J. Super. 106, aff'd as modified, 162 N.J. 150 (1999).
It is clear plaintiff's failure to file a timely notice of claim resulted not from any "extraordinary circumstances," but from a run-of-the-mill lack of due diligence, which is insufficient as a matter of law to sustain the requested relief. See Randazzo v. Twp. of Washington, 286 N.J. Super. 215, 219 (App. Div. 1995) ("Where . . . the late notice is merely the result of the ambivalence of the claimant, this would be the very circumstance that the statute [N.J.S.A. 59:8-9] is designed to prevent, and relief should be denied."); Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 250 (App. Div. 1995) (holding that under the less stringent standard of "sufficient reasons" required at the time of the decision, a claimant's ignorance of the TCA's notice requirement and potential cause of action against the municipality was ...