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Estate of Frederick M. v. City of Newark and County of Essex

July 25, 2012

ESTATE OF FREDERICK M. JOHNSON, JR., DECEASED, BY DOROTHY JOHNSON, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF-RESPONDENT,
v.
CITY OF NEWARK AND COUNTY OF ESSEX, DEFENDANTS-APPELLANTS.



On Appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9864-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2011

Before Judges Messano and Espinosa.

The City of Newark (Newark) and the County of Essex (the County) appeal from orders that granted plaintiff Dorothy Johnson*fn1 leave to file late notices of tort claim against them. See N.J.S.A. 59:8-9. We have consolidated these back-to-back appeals for the purpose of this opinion and affirm.

Frederick M. Johnson, Jr. (Frederick) was arrested by officers of the Newark Police Department (Newark PD) on May 7, 2010 for outstanding traffic warrants issued by East Orange. He remained incarcerated and was transferred to the Essex County Correctional Facility (ECCF) on May 9, 2010. On the following day, Frederick complained of abdominal pain and missed dialysis treatments and was admitted to East Orange General Hospital (EOGH).

Frederick's mother, plaintiff Dorothy Johnson, attempted to file a missing person's report with Newark PD on May 10. She was informed that her son had been arrested and was being held at ECCF in lieu of $250 bail. She was not told what department arrested him or what the charges were. Dorothy posted bail for her son and received a New Jersey Bail Recognizance form, which stated that Frederick's offense occurred in East Orange.

A-3024-10T1

Meanwhile, Frederick received dialysis treatments at the hospital and was discharged on May 12, 2010. He was returned to ECCF, where he was released on the same day. Dorothy spoke briefly to her son after his release but did not question him about what had occurred. Frederick died the next day from septic shock.

Under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, a party has ninety days from the accrual of his/her cause of action to file a claim against a public entity. N.J.S.A. 59:8-8(a). As an exception to this rule, N.J.S.A. 59:8-9, provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. [(Emphasis Added).]

Approximately three weeks after her son's death, Dorothy retained counsel to investigate her son's death and to determine what parties, if any, may have been responsible. On November 18, 2012, Dorothy filed a motion seeking leave to file a late notice of claim against Newark and the County. Romain D. Walker, Esq., submitted a certification in support of Dorothy's motion for leave to file a late notice. He acknowledged that the ninety-day period for the filing of claims against the public entities expired on August 11, 2010. However, in his certification, he provided facts and documents, which we summarize here, to support the argument that extraordinary circumstances existed to permit a late notice of claim.

The New Jersey Bail Recognizance Form that Dorothy gave to counsel stated that Frederick was arraigned in East Orange Municipal Court on May 7, 2010 on a traffic offense. Bail was set at $250.

On June 3, 2010, counsel submitted a demand for discovery upon the court administrator, the municipal prosecutor and the police records officer of the East Orange Municipal Court, using the caption for the complaint listed in the Uniform Jail Commitment Form. The demand sought the production of police reports and other documents. Walker certified that no information was provided in ...


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