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Betty Hoff and Daniel Hoff, Her Husband v. Township of Milltown and County of Middlesex

August 2, 2011

BETTY HOFF AND DANIEL HOFF, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF MILLTOWN AND COUNTY OF MIDDLESEX, DEFENDANTS, AND PARKVIEW GRAMMAR SCHOOL AND MILLTOWN BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2289-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Sabatino and C.L. Miniman.

Plaintiff Betty Hoff*fn1 appeals orders dated April 19, 2010 and May 28, 2010 denying her leave under N.J.S.A. 59:8-9 to serve a late tort claims notice upon various public entity defendants. Because the trial court had a sound basis to conclude that plaintiff's application fell short of the stringent requirements of the statute, we affirm.

The record discloses the following pertinent chronology of events. On September 17, 2009, plaintiff fell while walking on a path within a wooded property near her home in Milltown Township. She claims that she tripped over a tree root. The fall caused her to fracture her left ankle.

Plaintiff consulted an attorney about one month later, on October 16, 2009, seeking to pursue compensation for her injury. The attorney, a solo practitioner, agreed to represent her. That same day, he sent a letter to the Milltown tax assessor seeking to ascertain the owner of the wooded property. He also sent a letter to the Milltown police department seeking a copy of the police report that may have been generated after plaintiff's fall. According to the attorney, he did not receive a response from either the tax assessor or the police department. The attorney contends that, in the absence of such responses, he remained unsure of the identity of the owner of the wooded property.

The attorney was cognizant that if the wooded property was, in fact, owned by a public entity, plaintiff was obligated, pursuant to N.J.S.A. 59:8-8, to serve a tort claims notice upon that entity within ninety days of the incident, as a precondition to the filing of a lawsuit under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. According to the attorney, his file clerk wrote "Betty Hoff 12/17" on a dry erase board in his office. The notation was intended to serve as a reminder that a tort claims notice in plaintiff's matter would be due by December 17, 2009, i.e., ninety days after her accident.

As the attorney described in an affidavit, the dry erase board was used in his office to display critical dates that "cannot be forgotten," such as statute of limitations deadlines, discovery end dates, and Title 59 notice dates. The board also displays the birthdays of staff members. The board hangs in a room where client files are kept, and is routinely passed numerous times daily. The attorney characterized the board as "the backbone of [his] internal security for [his] files," stating that he previously had "never experienced a problem with this system." The attorney typically checked to verify that the entries on the board were posted correctly.

Despite the posting of her deadline on the dry erase board, no tort claims notice was served on plaintiff's behalf within the statutory ninety-day period. Evidently, a member of the attorney's staff inadvertently erased the entry, not appreciating that this was potentially a Title 59 case. The attorney did not realize until March 23, 2010, three months after the deadline had passed, that no notice had been sent out. The attorney explained that "due to personal issues [his] mind was indeed clouded and pressured from work and non-work related issues." In particular, the attorney noted that one of his parents had been diagnosed with late-stage cancer in the fall of 2009, that he himself has had health problems, and that his law practice had experienced serious financial difficulties.

Upon realizing that no timely notices had been served, the attorney conferred with plaintiff, who advised him for the first time that a school is located adjacent to the woods where she fell. The attorney prepared a motion seeking to extend the time to serve tort claims notices, alleging extraordinary circumstances under N.J.S.A. 59:8-9. Still unsure of the ownership of the wooded property, plaintiff sought leave to serve late notices upon several public entities, including the Township of Milltown ("the Township"), Parkview Grammar School ("Parkview"), the Milltown Board of Education (the "Board of Education"), and the County of Middlesex ("the County"), who were named as defendants in an accompanying proposed complaint.

Parkview and the Board of Education (collectively "the school defendants") jointly opposed the motion. Opposition was also filed by the County.*fn2 The school defendants submitted a certification from the school superintendent, who stated that the Board of Education was unaware of plaintiff's potential claim until she served her motion papers in March 2010. The superintendent added that the Board of Education had no record of any accident occurring on or about the grammar school premises in September 2009, nor did it have a record of a report of any dangerous condition there during that month.

The trial court denied plaintiff's motion, on the papers, in an order dated April 19, 2010. Plaintiff then moved for reconsideration, complaining that her motion had been denied without oral argument and asserting that she met the criteria of N.J.S.A. 59:8-9.

After hearing oral argument on plaintiff's renewed application, the trial judge issued a bench ruling on May 28, 2010, once again denying relief under N.J.S.A. 59:8-9. Among other things, the judge determined that no extraordinary circumstances had been demonstrated to excuse the late notice, and that plaintiff's application was contrary to the policy objectives underlying the statute. The judge expressed sympathy for the personal ...


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