October 7, 2011
JUDY CORRIGAN, PLAINTIFF-APPELLANT,
JAMES MOGAN, MARIE MOGAN, AND CITY OF BRIGANTINE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1175-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2011
Before Judges Sabatino and Fasciale.
This case arises out of injuries that plaintiff Judy Corrigan sustained on August 14, 2008, when she tripped on the raised edge of a sidewalk in front of a house in Brigantine. Plaintiff appeals the trial court's May 15, 2009 order denying her motion to serve a late tort claims notice upon the City of Brigantine ("the City"). She also appeals a subsequent order dated September 16, 2010 granting summary judgment to the home owners, defendants James and Marie Mogan ("the Mogans"). For the reasons that follow, we affirm both orders.
On the morning of the accident, plaintiff, then sixty-seven years old, was walking her dog. She wore sneakers, and the weather was clear. Although the Mogans live near her, plaintiff had not previously walked her dog on the sidewalk in front of their home. Plaintiff held the leash in her right hand, and she contends that her dog did not pull at her as they passed by the Mogans' home.
According to plaintiff, she tripped when the front of her left foot caught on the sidewalk cement where the sidewalk meets a driveway. She fell forward, and the front of her body struck the surface. A passing motorist saw her lying on the sidewalk, and he called an ambulance. Paramedics responded to the scene and brought plaintiff to a local emergency room. Her left wrist was fractured, and she also injured her shoulders.
A surgeon at the hospital operated on plaintiff's wrist, and he installed plates and four rods into her left hand and arm. Plaintiff was discharged from the hospital the following day. Plaintiff also received treatment for her shoulders, including pain injections and physical therapy. She ultimately had arthroscopic surgery in December 2009 to repair a torn rotator cuff in her right shoulder.
Before the accident, plaintiff had cared for an elderly woman with whom she resided. Because of her injuries, plaintiff was unable to continue to care for the woman. The woman's relatives placed her in a nursing home, and plaintiff remained in the residence she and the woman had shared.
The Mogans have lived at their house since 1973. Mr. Mogan stated at his deposition that he "probably" had noticed the raised section of the sidewalk at some point before plaintiff's accident. The damaged area of the sidewalk crossed the Mogans' driveway. The Mogans rarely use the driveway, often parking their cars on the street.
Three months after plaintiff's accident, on November 18, 2008, the Mogans received a letter from the City's Bureau of Fire Prevention ("the Bureau"), instructing them to repair the sidewalk in front of their home. The Bureau's letter asserted that the condition of the sidewalk was in violation of the BOCA National Property Maintenance Code, as adopted by the City. After receiving the letter, Mr. Mogan contacted a City inspector to discuss the areas to be repaired. The Mogans thereafter hired a contractor, which made the repairs. The City apparently found the repairs to be satisfactory and did not fine the Mogans.
According to the Mogans' deposition testimony, prior to receiving the Bureau's November 2008 letter, they had never made any improvements or alterations to the sidewalk. The sidewalk was built before they purchased the house in 1973.
Plaintiff alleges that she contacted the City Clerk's office about her accident within two weeks after it occurred. She asserts that the Clerk told her "that the city had a law that said they [the City and its employees] were not responsible," and therefore declined to provide her with any assistance. However, according to affidavits filed with the trial court by the City Clerk and her assistant, the Clerk's office has no record of a telephone call, letter, or other contact by plaintiff during that time frame.
Plaintiff further alleges that the Clerk's office failed to inform her that she needed to submit a notice of tort claim in order to pursue her action against the City. The Clerk disputed that allegation, noting in her affidavit that her office policy prescribes that "anyone who came to [the City Clerk's] office with regard to a claim would have been duly informed that the City has adopted an official form for the filing of claims against the City of Brigantine. That form would have been provided to anyone making such a claim."
Following her accident, plaintiff contacted a local attorney (plaintiff's "initial attorney"). Plaintiff met with him on August 27, 2008, thirteen days after the accident. The initial attorney took photographs of the sidewalk where she fell, and he gave her prints of the photographs. According to plaintiff, the initial attorney told her that she "had a good case," and that he would take it. He apparently did not inform her, however, that she was required to file a notice of tort claim in order to pursue a lawsuit against the City.
According to plaintiff, in December 2008 the initial attorney told her that he was referring the case to another lawyer outside of his office. Evidently, neither the initial attorney, nor the unidentified outside lawyer who was referred the case, thereafter took any action.*fn1
Plaintiff eventually contacted her present counsel on March 6, 2009, more than six months after the accident and more than three months after the statutory ninety-day deadline for serving a tort claims notice pursuant to N.J.S.A. 59:8-8.
Plaintiff's present counsel informed her that she was required to file a tort claims notice. Plaintiff accordingly filed the first of two successive tort claims notices with the City on March 10, 2009. After receiving the first notice, the City advised plaintiff that it required the notice to be filed on a City form. On April 2, 2009, plaintiff filed a second tort claims notice, using the required form.
In the meantime, aided by her present attorney, plaintiff filed a complaint on March 27, 2009 in the Law Division against the City and the Mogans, seeking damages for her personal injuries. On April 8, 2009, she sought leave to file a late tort claims notice. The City opposed her motion, arguing that plaintiff had not demonstrated extraordinary circumstances under N.J.S.A. 59:8-9 to excuse her late service of a notice. The City also argued that its defense of the case was greatly prejudiced by the late notice, because the sidewalk had already been repaired by the Mogans, thereby depriving it of a sufficient opportunity to investigate the allegedly dangerous condition.
After considering these submissions, the trial court denied plaintiff's motion for leave to file a late notice. In his written opinion dated May 15, 2009, the motion judge traced the time line of pertinent events, and concluded that plaintiff had not satisfied her burden to justify a late notice under the statutory criteria.
In particular, the judge recognized the "alleged severity of plaintiff's injuries and the subsequent upheaval in her personal life." Nevertheless, he concluded that the record was insufficient to establish "extraordinary circumstances," as the Legislature has required under N.J.S.A. 59:8-9 in order to allow a late notice. The judge also found that permitting plaintiff to file a late notice would substantially prejudice the City, because "[t]he area of plaintiff's alleged fall is now not what it was at the time of the incident, materially hampering [the City's] ability to properly investigate plaintiff's claims."
The case then proceeded solely against the Mogans, on a theory that they had negligently allowed a dangerous condition to persist on the sidewalk in front of their home. After the depositions of the parties were completed, the Mogans moved for summary judgment. The motion was heard by another judge in the vicinage, who granted the Mogans' application and dismissed plaintiff's complaint.
In his oral opinion, the second motion judge agreed with the Mogans that, as residential property owners, they are not liable under New Jersey case law for an injury caused by a dangerous condition on the sidewalk in front of their premises, where the homeowners themselves did not create the alleged hazard.
Plaintiffs now appeal. They contend that the first motion judge erred in denying their motion to file a late tort claims notice with the City, and that the second motion judge erred in granting the Mogans summary judgment. We reject each of these contentions.
First, with respect to plaintiff's intended claims against the City, we must bear in mind the terms and legislative purposes of the notice provisions within the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. As N.J.S.A. 59:8-8 prescribes, if a plaintiff seeks to bring an action against a public entity, she must file a notice of tort claim with the public entity "not later than the ninetieth day after accrual of the cause of action." The consequence of not meeting that deadline is significant. "The claimant shall be forever barred from recovering against a public entity or public employee if [she] . . . failed to file [her] claim with the public entity within 90 days of accrual of [her] claim[.]" N.J.S.A. 59:8-8 (emphasis added).
The purpose of imposing this notice obligation upon a claimant is to give the public entity a fair opportunity to investigate the claim, and potentially resolve it before the entity is put to the burden of having to defend a lawsuit at public expense. See Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000). Oral notice of a claim is not sufficient to accomplish that purpose. Velez v. City of Jersey City, 358 N.J. Super. 224, 238 (App. Div. 2003), aff'd, 180 N.J. 284 (2004).
The trial court has a limited degree of discretion under N.J.S.A. 59:8-9 to permit a plaintiff to file a late notice of tort claim. However, a plaintiff must demonstrate "extraordinary circumstances" to excuse a failure to file the notice of tort claim within the prescribed ninety days. N.J.S.A. 59:8-9. Additionally, the filing of the late notice must not "substantially prejudice" the defendant public entity. Ibid.
The phrase "extraordinary circumstances" was inserted into Section 59:8-9 in 1994. "Its purpose was to raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)). Given that legislative purpose, our courts have generally applied the exception in a stringent manner. See, e.g., Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999) (disallowing a late notice where a sixty-one-year-old immigrant sustained serious injuries after tripping over a pipe protruding from a sidewalk adjacent to residential premises, and ownership by the public entity did not become apparent to the plaintiff's attorney until after ninety days); Bayer v. Twp. of Union, 414 N.J. Super. 238, 259 (App. Div. 2010) (noting that "[a]lthough an attorney's negligence may have been sufficient prior to the 1994 amendment to allow a late filing, under the current version of the statute, if such negligence is the sole basis for the late notice, the claim against the public entity will be lost"); O'Neill v. City of Newark, 304 N.J. Super. 543, 552-54 (App. Div. 1997) (finding no extraordinary circumstances when plaintiff failed to file a notice of tort claim within 90 days after being hospitalized due to a gunshot injury); Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674 (App. Div. 1996) (holding "if the sole basis for plaintiff's late notice was the misfiling by the secretary and the attorney's forgetfulness, the claim against the public entity has been lost").
Our scope of review of a trial court's application of N.J.S.A. 59:8-9 to a particular scenario is limited. "The Law Division has discretion to grant or deny permission to file a late notice of claim within the one year period, and the decision 'will be sustained on appeal in the absence of a showing of an abuse thereof.'" O'Neill, supra, 304 N.J. Super. at 550 (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). "Generally, we examine 'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted[.]'" Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 134 (1994) (quoting S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 122 (1977)).
Having performed such a careful examination here, we are satisfied that the trial court fairly applied its discretion in denying plaintiff's motion for leave to serve a late notice upon the City, more than three months after the ninety-day deadline had expired. In particular, the trial court had a sound basis for concluding that plaintiff failed to demonstrate extraordinary circumstances.
The motion judge was appropriately mindful that plaintiff sustained a fracture and other injuries resulting from the accident, and that she was dealing with problems in her household. Nevertheless, plaintiff was physically capable of consulting an attorney within two weeks of her fall. Additionally, according to her narrative, plaintiff was also able to contact the City Clerk's office. Plaintiff offered no report from a physician stating that her injuries were so severe during the ninety-day period that she was incapable of completing and submitting a tort claims notice.
The apparent lack of follow-through on the part of plaintiff's initial attorney also does not constitute extraordinary circumstances. Plaintiff consulted him over ten weeks before the ninety-day deadline expired, but he did not file a notice on his client's behalf. It is also unrefuted that the attorney did not inform plaintiff that she needed to submit such a notice within ninety days. Our case law has not treated such omissions by a claimant's attorney as comprising extraordinary circumstances under the Act. See, e.g., Bayer, supra, 414 N.J. Super. at 259; Zois, supra, 286 N.J. Super. at 674.
Plaintiff's reliance on her alleged contact with the City Clerk likewise does not constitute extraordinary circumstances.
Even accepting, for the sake of argument, that plaintiff's version of her contact with the Clerk is true, the conversation does not constitute extraordinary circumstances. It would be unreasonable to conclude that she was stymied by the Clerk's alleged failure to notify her of the notice requirement, as she was also consulting with an attorney to protect her interests. As we have noted, that attorney could have, and should have, informed her of the notice requirement. In addition, even assuming that plaintiff orally provided the Clerk with all of the information that N.J.S.A. 59:8-4 requires to be contained in a tort claims notice, such oral notice would not be sufficient to satisfy the statute, because the notice must be in writing. See Velez, supra, 358 N.J. Super. at 238.
The record also supports the trial court's finding of substantial prejudice to the City, which is an independent and sufficient ground for denial of the motion. "In determining whether late filing will 'substantially prejudice' the public entity, courts have generally focused on the entity's interest in expediting investigation with the hope of reaching non-judicial settlement and its interest in protecting its access to current information about the alleged incident." Lamb, supra, 111 N.J. at 152. The availability of information "is largely determinative of the issue of prejudice." Ibid.
However, "the fact of delay alone does not give rise to a presumption of prejudice; the public entity must present a factual basis for the claim of substantial prejudice." Ibid.
The first motion judge correctly recognized that the City was deprived of a sufficient chance to investigate the sidewalk in its damaged condition, because the Mogans had repaired the sidewalk before plaintiff served the late notice of tort claim. Although the municipal Bureau of Fire Prevention directed the Mogans to repair the sidewalk after the accident, nothing in the record shows that the City knew that plaintiff intended to file suit when the Bureau issued that directive. Additionally, the record does not indicate that the City knew that plaintiff's first counsel had already examined and photographed the sidewalk. Had the City received a timely and proper notice, it could have taken steps to obtain and preserve its own evidence of the sidewalk's condition before the repairs were undertaken.
We do part company with one aspect of the first motion judge's analysis, in which he found significant that the City had enacted an ordinance provision, Section 260-6*fn2 , attempting to disavow any responsibility for the dangerous condition of certain public sidewalks. Although the ordinance may provide a basis for the City to seek redress from private landowners who fail to comply with their maintenance responsibilities under the ordinance, it cannot eliminate the qualified tort liability that is imposed upon public entities and public employees in this State under the Tort Claims Act.
"A municipality may not contradict a policy the Legislature establishes. Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes." Summer v. Twp. of Teaneck, 53 N.J. 548, 554 (1969) (citing Auto-Rite Supply Co. v. Mayor and Committeemen of Woodbridge, 25 N.J. 188 (1957)). "As public entities lack the power to expand their liability by contract, so are they barred from granting themselves greater immunity than the Legislature has afforded them." Marcinczyk v. N.J. Police Training Comm'n, 203 N.J. 586, 596-97 (2010) (citation omitted) (invalidating an exculpatory clause in a contract a police academy required a trainee to sign because it was contrary to the public policy expressed in the Tort Claims Act).
As the Supreme Court has observed, the "traditional immunity for negligently maintained sidewalks accorded municipalities . . . is abrogated, and . . . liability resulting from the dangerous condition of such public property [should] be determined in accordance with the provisions of the [Tort Claims Act] governing liability on the part of a municipality for its public property." Norris v. Borough of Leonia, 160 N.J. 427, 446 (1999).
Here, the City's ordinance, proclaiming that the City and all City employees are relieved of any responsibility arising from the condition of certain public sidewalks, is contrary to the uniform principles of the Tort Claims Act. The Legislature passed the Act in order to establish uniform principles of tort liability for all public entities in New Jersey. See N.J.S.A. 59:1-2 ("it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.") (emphasis added); see also N.J.S.A. 59:2-2(a) (declaring that "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances").
The City transgressed these uniform principles established statewide in the Tort Claims Act by enacting an ordinance that attempted to restrict the City's tort liability for hazards on public sidewalks, in a manner contrary to N.J.S.A. 59:2-2(a).
Consequently, the first motion judge's reliance on the ordinance in his opinion was in error. Even so, his ultimate determination to deny plaintiff leave to file a late notice was sound, for the reasons that we have already expressed.
Lastly, we note that plaintiff's complaint against the City was defective because it was filed only seventeen days after plaintiff served her belated notice. The City was therefore deprived of the six-month period of repose afforded to public entities under N.J.S.A. 59:8-8 to investigate and potentially resolve the claim. See N.J.S.A. 59:8-8 (providing that "[a]fter the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law").
We turn to the order granting summary judgment to the Mogans. In reviewing that order, we apply the same standards for summary judgment governing the trial courts under Rule 4:46. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). In particular, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
Little needs to be said about the dismissal of plaintiff's claims against the Mogans. That is so because, as the New Jersey Supreme Court recently confirmed, the law of our State does not make residential property owners liable for dangerous conditions on public sidewalks in front of their dwellings, unless the property owners themselves created or worsened the danger by their own affirmative conduct. See Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 159-60 (1981); see also Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011) (reaffirming the principles of Stewart). The Court continues to observe a distinction in this respect between commercial property owners, who bear such responsibility in tort, and residential owners, who do not. See Luchejko, supra, 207 N.J. at 210; Stewart, supra, 87 N.J. at 159-60. As the Court plainly stated in Luchejko, "[r]esidential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition[.]" Luchejko, supra, 207 N.J. at 210.
The record contains no proof that the Mogans caused or exacerbated the dangerous condition on the sidewalk that caused plaintiff to trip and fall. The sidewalk existed before the Mogans purchased the house in 1973. Thus, the Mogans cannot be held liable for plaintiff's injuries as a matter of law.
Nash v. Lerner, 157 N.J. 535 (1999), a case which is cited in plaintiff's brief, does not support her effort to invalidate the summary judgment order. In Nash, the plaintiff tripped over a sidewalk that crossed a residential driveway, and she then sued the owner of the premises. As the Court observed in Luchejko, because the use of the property by the defendant in Nash "was residential, rather than commercial, and because defendant's mere use of the sidewalk to access her driveway and home did not constitute active misconduct, the property owner was immune from liability." Luchejko, supra, 207 N.J. at 205 (citing Nash v. Lerner, 311 N.J. Super. 183, 193-94 (App. Div. 1998) (Rodriguez, J.A.D., dissenting), rev'd on dissent, 157 N.J. 535 (1999)). Here, although plaintiff was injured when she tripped on a sidewalk that adjoined a driveway in front of the Mogans' property, the Mogans are not liable for the injury because their use of the sidewalk to access their driveway was merely residential, and there is no proof of active misconduct on their part.
Finally, we reject plaintiff's argument that the Mogans are liable to her for compensatory damages because a City ordinance requires them to maintain the sidewalk in front of their home.
The Supreme Court made clear in Luchejko that the violation of an ordinance requiring a homeowner to maintain public property in front of his or her home does not give rise to a private action:
[I]t has long been the law in this state that breach of an ordinance directing private persons to care for public property "shall be remediable only at the instance of the municipal government . . . and that there shall be no right of action to an individual citizen especially injured in consequence of such breach. The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property-owners to maintain sidewalk pavements or to remove ice and snow from the walks." [Luchejko, supra, 207 N.J. at 200, (quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 352 (E. & A. 1902)) (emphasis modified).]