April 6, 2011
JAIME WEAVER, PLAINTIFF-APPELLANT,
NEW JERSEY TRANSIT CORPORATION AND TIMOTHY STACKHOUSE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3015-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2011
Before Judges Baxter and Koblitz.
Plaintiff Jaime Weaver*fn1 appeals from the denial of her motion for leave to file a late notice of tort claim against defendant New Jersey Transit Corporation (NJT)*fn2 under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 14-4. With the denial of her motion, plaintiff lost the right to sue NJT for injuries she sustained while a passenger in a NJT bus. We agree with the motion judge's determination that plaintiff failed to demonstrate the "extraordinary circumstances" required by N.J.S.A. 59:8-9 when a plaintiff seeks to file a late notice of tort claim under the Act. We affirm.
On November 24, 2008, plaintiff was riding in a bus owned by NJT, and driven by its employee, defendant Timothy Stackhouse, when the bus rear-ended the car in front of it, allegedly causing plaintiff to lurch forward and injure her knee. Rather than immediately filing the notice of tort claim, which N.J.S.A. 59:8-8 states must be filed no later than the ninetieth day following accrual of the cause of action, plaintiff's attorney first wrote to the Hamilton Township Police Department to obtain a copy of the police report. He apparently did not receive it until after January 30, 2009.
On February 10, 2009, within the ninety-day period required by N.J.S.A. 59:8-8, plaintiff sent her notice of tort claim to the State Department of Treasury, Bureau of Risk Management (Treasury). On February 27, 2009, five days after the ninety-day deadline had expired on February 22, Treasury wrote to plaintiff, indicating that NJT was "not the 'State,' meaning the State of New Jersey, its departments or agencies (N.J.S.A. 59:1-3)." Treasury's February 27, 2009 letter contained the following statement:
New Jersey Transit Corporation is a public entity, which can sue and be sued. It is separate and distinct from the State of New Jersey.
In our opinion, notice to the State of New Jersey or any State department is not notice to New Jersey Transit Corporation or any of its agencies or subdivisions; and should not be construed to waive any of their rights under the New Jersey Tort Claims Act. Any further communication on your part should be directed to:
New Jersey Transit Corporation 110 Plaza East Newark, NJ 07105 Attn: Claims Department Since your claim does not involve the State of New Jersey or any of its agencies, this office cannot entertain your claim.
For reasons not explained by the record, plaintiff waited nearly five more months, until July 20, 2009, to serve her notice of tort claim on NJT. By letter dated July 30, 2009, NJT Senior Investigator D.A. Bentley notified plaintiff that because more than ninety days had elapsed from the accrual of her cause of action on November 24, 2008, NJT refused to accept her notice of claim. Bentley's letter advised plaintiff that the applicable statute entitled her to file a motion with the Superior Court seeking permission to file a late claim. Bentley's letter closed with a warning that "[f]ailure to immediately seek the court's permission may prevent the recovery of damages against New Jersey Transit."
After receiving Bentley's letter in early August, plaintiff waited an additional four months, until November 24, 2009, before filing her motion with the Law Division for permission to file a late notice of tort claim against NJT. In support of that motion, plaintiff's attorney certified that in sending the notice to Treasury, he had relied on the 2009 New Jersey Lawyers Diary and Manual, which lists NJT under "State Departments and Agencies," and indicates that the Office of Attorney General is its "counsel."
Judge Hurd denied plaintiff's motion, reasoning that plaintiff had not presented the extraordinary circumstances required by N.J.S.A. 59:8-9 that would excuse the late filing of a notice of tort claim. The judge stated:
While it does appear that plaintiff made a good faith attempt to file a notice of claim with the Department of Treasury, Bureau of Risk Management on or around February 10, '09, plaintiff gives no explanation for the five-month delay in resending the notice directly to NJT after being advised by . . . Treasury that all communication should be directed there. It was not until nearly eight months after the date of plaintiff's accident that plaintiff's counsel finally forwarded the notice of claim to NJT on July 20th, '09.
Moreover, as defendant also points out in opposition, this delay in notifying New Jersey Transit is made even more inexplicable given that plaintiff and her counsel have known since the accident occurred of NJT's involvement in her claim. Similarly, no explanation is given for why plaintiff waited four months more thereafter to file the present motion for leave to file a late notice of claim even though Investigator Bentley of NJT advised plaintiff's counsel as early as June 30th, '09 that plaintiff's claim could be forever barred if plaintiff does not seek leave to file a notice within one year of the accident.
Even affording plaintiff the benefit of assuming that the initial confusion over whether to directly send the notice to the NJT caused by the entry in [the] New Jersey Lawyers Diary constituted sufficient extraordinary circumstances to excuse the failure to file within the initial 90 day period, plaintiff's moving papers are entirely devoid of any other information that could support a showing of extraordinary circumstances sufficient to excuse or explain the subsequent four-month delay in filing the present motion.
It is difficult now not to recognize the likely prejudice that New Jersey Transit would suffer by having to investigate the claim, question its driver, look at the bus, contact the plaintiff's counsel, call the investigating police officer and contact the driver of the rear-ended car and her passenger over one year after the accident. The nature of plaintiff's case necessitates reliance by both parties upon eye-witness testimony, and the Court has in the past recognized loss of witnesses, loss of evidence, and the fading of memories as hallmarks of substantial prejudice[.]
In summary, because the plaintiff has failed entirely to demonstrate exceptional circumstances justifying the failure to file within the 90 day limitation[,] or the failure to file the present motion within a reasonable time after the expiration of the 90 days, plaintiff's motion must be denied notwithstanding the liberal standard with which these motions are generally viewed.
On appeal, plaintiff maintains that: 1) her failure to file a notice of claim within ninety days following accrual of her cause of action was due to "extraordinary circumstances" caused by the misleading entry in the Lawyers Diary; and 2) because NJT made no particularized showing of prejudice, the judge's finding on that subject was error. For its part, NJT maintains that plaintiff's "primary excuse, that the New Jersey Lawyers Diary categorized NJT as a State Department or Agency, is unavailing" because "[t]he status of NJ Transit is articulated by statute, not a private publication." NJT also maintains that because it is "a body corporate and politic with . . . the ability to sue and be sued[,] . . . it is, by statutory definition, excluded from the meaning of the 'State'" and must be sent its own notice of tort claim.
A plaintiff may not bring suit against a public entity or public employee unless the plaintiff presented the public entity or public employee with a pre-suit notification of the claim, N.J.S.A. 59:8-3, which must be in writing, Velez v. City of Jersey City, 358 N.J. Super. 224, 238 (App. Div. 2003), affirmed, 180 N.J. 284 (2004). Moreover, the notice of tort claim must be served upon the entity no later than ninety days after the accrual of the cause of action. N.J.S.A. 59:8-8. The date of accrual is the date when the negligent act or omission occurred. Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). The ninety-day notice requirement accomplishes two purposes, notifying the public entity of the circumstances surrounding the incident so it may correct the conditions or practices that led to the claim, and informing the public entity in advance of the financial liability that it may be expected to meet.
In narrowly-defined situations, the Act does permit the filing of a late notice of claim beyond the ninety-day period specified by N.J.S.A. 59:8-8, provided that a court, by order, permits the filing of a notice of claim after the ninety days has expired. N.J.S.A. 59:8-9. To succeed on such motion, a plaintiff must demonstrate that the late filing was the result of "extraordinary circumstances" and that the defendant "has not been substantially prejudiced" by the delay. Ibid. Under no circumstances, however, may the court grant the motion if it is filed more than one year after the accrual of the cause of action. Ibid.
Notably, when the Legislature amended the statute in 1994 to impose the "extraordinary circumstances" requirement, it did so to narrow the circumstances under which a plaintiff would be entitled to file a late notice of claim, by changing the standard from a "fairly permissive standard" to one that was "more demanding." Beauchamp, supra, 164 N.J. at 118. The 1994 amendment thus "signaled the end to a rule of liberality in filing." Ibid. (internal quotation marks and citation omitted).
Moreover, a plaintiff's lack of diligence in conducting an investigation to determine the identity of the responsible party in a timely fashion does not constitute extraordinary circumstances justifying the filing of a late claim. Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999); Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 460-61 (App. Div. 2008); Zois v. N.J. Sports & Exp. Auth., 286 N.J. Super. 670, 674 (App. Div. 1996) (holding that an attorney's forgetfulness coupled with his secretary's misfiling of paperwork did not constitute an extraordinary circumstance).
Moreover, even if a plaintiff establishes sufficient reasons for not having served the notice within the ninety-day period required by N.J.S.A. 59:8-8, such circumstances do not create an absolute right to wait until the end of the one-year period to seek leave to serve a late notice of claim. Wood v. Cnty. of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997). Instead, leave must be sought within a reasonable time after the occurrence of whatever conditions caused the delay in the first place. Ibid. Thus, a nine-month delay in filing the motion for leave to file a late notice of tort claim entitled the judge to deny the plaintiff's motion. Ibid.
We agree with Judge Hurd's conclusion that plaintiff did not demonstrate extraordinary circumstances to excuse her failure to file the timely notice of claim required by N.J.S.A. 59:8-8. This is not a circumstance where plaintiff was unaware of the identity of the responsible party. Consequently, she should have filed her notice with NJT no later than February 22, 2009, ninety days after the accident. Instead, she waited to obtain a police report, even though she knew that NJT was the owner of the bus. Although she sent a timely notice to Treasury, nothing prevented her from simultaneously sending a notice to NJT. In short, as NJT correctly maintains, "nothing prevented [plaintiff] from filing a timely notice of claim with NJT."
Her explanation, that the Lawyers Diary categorized NJT as a State Department or agency, is unavailing for three reasons. First, the status of NJT is described by statute and by caselaw, and plaintiff, or more accurately, her attorney, should therefore not have relied on a private publication. N.J.S.A. 27:25-4 establishes that NJT is a body corporate and politic. Among the many powers conferred upon NJT, is its ability to sue and be sued. N.J.S.A. 27:25-5(a). A provision of the Act specifies that the term "State" for purposes of the Act does "not include any . . . entity which is statutorily authorized to sue and be sued." N.J.S.A. 59:1-3. Thus, plaintiff's failure to diligently investigate the status of NJT is incompatible with a claim of extraordinary circumstances. Blank, supra, 162 N.J. at 152-53.
Second, even though we have concluded that plaintiff's lawyer's reliance on the Lawyers Diary was not a circumstance justifying the filing of a late notice, we note that counsel has inadvertently furnished an incomplete description of what appears in the 2009 Lawyers Diary. Although the 2009 Lawyers Diary lists the Office of the Attorney General as counsel for NJT and includes NJT within the overall category of "State Departments and Agencies," it lists NJT within the subcategory of "INDEPENDENT AGENCIES," along with other entities such as the Office of Administrative Law, the Casino Control Commission, the Delaware River Joint Toll Bridge Commission, the Council on Local Mandates and the Pinelands Commission, among others. Thus, it is beyond dispute that counsel's reliance on the Lawyers Diary cannot serve as a justification for the late notice of tort claim.
Third, plaintiff's nine-month delay between the time Treasury notified her that she should file her notice directly within NJT, and the time she ultimately filed her motion in November 2009, required the denial of her motion. As we made clear in Wood, supra, 302 N.J. Super. at 380, an unexplained nine-month delay in filing the motion for leave to serve a late notice is a separate factor justifying the denial of the motion. We therefore affirm the judge's conclusion that plaintiff did not present the extraordinary circumstances required by N.J.S.A. 59:8-9 for the service of a late notice of claim. In light of that determination, we need not reach the judge's additional conclusion that NJT was prejudiced by the delay.