April 17, 2012
PEGGY ANNE REINHARDT, PLAINTIFF-APPELLANT,
BEATRIS ORTIZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2153-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Payne and Hayden.
Plaintiff, Peggy Anne Reinhardt, appeals from an order of summary judgment dismissing her complaint against Beatris Ortiz, an employee of the Department of Youth and Family Services (DYFS), for failure to provide timely notice of Reinhardt's tort claims and for failure to plead willful misconduct that would except Ortiz's conduct from the protections of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. We affirm.
The events in issue occurred in August 2009 and arose out of an ongoing custody dispute between Reinhardt and her two- year-old son's father, Robert Page. On June 12, 2009, Reinhardt had caused an order to show cause to be issued that permitted Page to have parenting time with his son on alternating Saturdays and Sundays from 11:00 a.m. to 5:00 p.m., but stayed pending further order an earlier order permitting Page to have overnight parenting time with the child. The return on the order to show cause was scheduled for June 18, 2009. However, on June 17, 2009, the parties consented to an order that maintained in effect the provisions of the June 12, 2009 order until further order of the court and cancelled the court appearance on the order to show cause.
On August 20, 2009, while the child was in Reinhardt's custody, he fell down the stairs, sustaining two bruises along his spine. The boy was taken to his pediatrician, who confirmed that the bruising was consistent with a fall down the stairs and found that no permanent injury had been sustained. On Saturday, August 22, 2009, Page took custody of the child in accordance with his scheduled visitation. However, when Page saw the bruising, he suspected abuse and took the child to Morristown Memorial Hospital, which informed DYFS. Special Response Unit (SPRU) worker, Beatris Ortiz, responded, examined the bruises, and determined to effect an emergency removal of the child from his mother's custody. Over Reinhardt's objection, and despite the Family Court orders of June 12 and 17, 2009, which Reinhardt allegedly brought to Ortiz's attention, Ortiz placed the child with the father, where he remained until Monday, August 24, 2009. At that time, a DYFS representative spoke to the child's pediatrician, confirmed that the injuries were accidental, and returned the child to Reinhardt. Reinhardt states that she has now been awarded sole custody of the child.
Shortly after the events in issue, on September 3, 2009, plaintiff wrote an e-mail to Commissioner Ricketts and Cristine Mozes at the Department of Children and Families (DCF) complaining about Ortiz's conduct. After describing what had occurred, Reinhardt wrote:
I am very sorry to have had this experience. It was terrible having to spend two days with out [sic] my son under unjust allegations simply because Mrs. Ortiz is a weekend response officer whom refused to adhere to a court order or even investigate properly. [Y]ou view the attachment*fn1 you can see there were prior concerns about my son[']s father being rough with our child.
I understand f[or] child's safety a court order can be superseded but Mrs. Ortiz placed my child based on negligence and ignorance. I am requesting disciplinary action and an ethics evaluation be placed upon Mrs. Ortiz.*fn2 The e-mail did not threaten suit, requesting only administrative action against Ortiz. Additionally, the notice lacked an address for plaintiff, and because it was an e-mail, it was not signed.
DYFS acknowledged receipt of "correspondence to Governor Jon S. Corzine regarding your involvement with the Division of Youth and Family Services"*fn3 by letter dated December 11, 2009.
The letter stated that Reinhardt's correspondence had been misdirected to the Essex North local office, but upon realizing that a Morris County worker was involved, the matter was forwarded to Executive Management in Morris County "for their review and whatever action they deemed appropriate."
Approximately one year later, on July 2, 2010, Reinhardt
filed suit against Ortiz claiming:
1. Child's safety and health subject to further detriment. Ms. Ortiz was completely ignorant of case history. I was sick with shock that Ms. Ortiz was ignorant of the protective order. I filed an endangerment complaint against her with Morris Prosecutor and DCF Chief of Staff.*fn4 (Included)
2. I accrued extensive legal fees as this influenced the visitation decision in court on October 8th, 2009. When appealed and notarized affidavit was submitted to court, custody settled with mother sole legal parent. The affidavit was witness of threat toward child and mother. The fees exceeded $23,000.
3. Defamation of my reputation and character. Ms. Ortiz removed child 5 hours after being called. If she notified me earlier, an appropriate investigation would have been implemented. My child would have been home with me. I am a teacher in Early Childhood, certified in CPR and First Aide [sic]. Ms. Ortiz failed to investigate any of that information. She refused to talk to my child's doctor.
Following the completion of discovery in the matter, a motion for summary judgment was filed by DYFS. In it, DYFS argued that Reinhardt had failed to file a notice of tort claim within ninety days of the accrual of her cause of action as required by N.J.S.A. 59:8-8 as a precursor to suit, and that she had failed to move to file a late notice of claim within one year of the time that her cause of action accrued, as required by N.J.S.A. 59:8-9. Oral argument took place on October 15, 2010, and at its conclusion, DYFS's motion was granted on the two grounds that we have stated.
On appeal, Reinhardt has argued both that her September 3, 2009 e-mail constituted adequate notice of her claim and that the conduct of Ortiz constituted willful misconduct. DYFS has filed opposition only to Reinhardt's position with respect to notice. Following our review of the record in light of the parties' arguments and controlling precedent, we have concluded that the notice provided by Reinhardt was inadequate to preserve her claim.
N.J.S.A. 59:8-8 requires that notice of a tort claim be presented as provided by the Tort Claims Act "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-4 specifies the content of that notice, stating:
A claim shall be presented by the claimant or by a person acting on his behalf and shall include:
a. The name and post office address of the claimant;
b. The post-office address to which the person presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
The statute reflects "a legislative determination that the information it requires constitutes an adequate, even if minimal, fulfillment of the purposes of notice." Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 676 (App. Div. 1999). The Court has held that the notice provision is designed to achieve the following goals:
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and
(4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.
[Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotations and citations omitted).]
The Act's notice requirement is not intended as "'a trap for the unwary.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)). Nonetheless, for the notice to preserve a claimant's right to proceed with a lawsuit, "it must substantially comply with the statutory content requirements." Newberry, supra, 319 N.J. Super. at 679. In Newberry, the notice of claim submitted by plaintiffs following an intersection collision failed to give the defendant township any indication of the basis for the public entity's liability, and for that reason, we found it inadequate. Id. at 680.
In the present case, the principal difficulty with the purported notice of claim e-mailed by Reinhardt is that it gave no "notice of claim,"*fn5 but merely sought administrative action against Ortiz. Thus, DYFS lacked notice that would have caused it to focus on Reinhardt's complaints as actionable and to determine whether an attempt should be made to settle any potential suit and whether potential defenses existed. Further, DYFS lacked notice of any potential liability that it might have been expected to meet or of the theories upon which plaintiff ultimately determined to base her suit. As a consequence, the complaints presented by Reinhardt in her e-mail failed in essential respects to accomplish the goals of the notice provisions of the Tort Claims Act. No attempt to cure by seeking to file a late notice of claim pursuant to N.J.S.A. 59:8-9 occurred.
We therefore conclude that the trial court was correct in its determination that the notice provided by Reinhardt was inadequate and in dismissing her claims under the Tort Claims Act with prejudice.
N.J.S.A. 59:3-14 provides exceptions to the immunity conferred upon public employees, stating: a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
We have held:
For purposes of the [Tort Claims Act,] willful misconduct has been defined as the "commission of a forbidden act with actual knowledge that the act is forbidden." [Kollar v. Lozier, 286 N.J. Super. 462,] 470 [(App. Div.), certif. denied, 145 N.J. 373 (1996)] (citing Marley v. Borough of Palmyra, 193 N.J. Super. 271, 294-95 (Law Div. 1983)). It is conduct much more egregious than ordinary negligence. Fielder [v. Stonack], 141 N.J. [101,] 123-27 [(1995)]; Kollar, supra, 286 N.J. Super. at 470.]
[Bernstein v. State, 411 N.J. Super. 316, 332 (App. Div. 2010).]
We are satisfied, as was the trial court, that Reinhardt has failed to allege any conduct on the part of Ortiz that would cause her immunity from tort liability to be lost. We find any arguments to the contrary by Reinhardt to be of insufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(A) and (E).