Abel v. City of Atlantic City

• Decision Date: 03 November 1988
• Citation: 549 A.2d 894,228 N.J.Super. 360
• Parties: Ceil ABEL, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, Atlantic County, New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 360

228 N.J.Super. 360

549 A.2d 894

Ceil ABEL, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, Atlantic County, New Jersey Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 4, 1988.

Decided Nov. 3, 1988.

Taylor, Kotlikoff, McCormack & Taylor, Camden, for plaintiff-appellant (Daniel McCormack, of counsel and on the brief).

Savio, Reynolds & Drake, Absecon, for defendants-respondents (Elizabeth R. Haig, on the brief).

Before Judges DREIER and BROCHIN.

The opinion of the court was delivered by

BROCHIN, J.S.C. (temporarily assigned).

The issue in this case is whether the tort claims notice filed on behalf of Ceil Abel as a condition for a suit against the City of Atlantic City was adequate in content and timely filed and, if not, whether the motion judge properly denied the claimant permission to file a notice of late claim.

Mrs. Abel alleges that she was injured on November 3, 1986, when she stumbled and fell while she was crossing Atlantic Avenue at its intersection with New York Avenue in Atlantic City. She claims that the cause of her fall was a pothole in the street which resulted from negligent maintenance by the City.

In order to be entitled to maintain a suit for damages against a public entity, a term which includes a municipality, a tort claimant must give timely notice of his claim as prescribed by statute. N.J.S.A. 59:8-3, 4 and 5. A notice is not timely if it is presented later than ninety days after the accrual of the claimant's cause of action ( N.J.S.A. 59:8-8) unless:

"[I]n the discretion of a judge of the superior court, [the claimant is] permitted to file such notice at any time within 1 year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed ..." N.J.S.A. 59:8-9.

In the present case, since Mrs. Abel claims to have suffered her fall on November 3, 1986, the time for presenting her notice of claim expired February 1, 1987. Her attorney presented a notice of claim on her behalf on January 30, 1987, within the prescribed ninety day period. However, the medical records forwarded to plaintiff's attorney from which he obtained the information for the notice of claim included references both to the injury which Mrs. Abel sustained on November 3, 1986, and to a similar injury which she sustained on September 2, 1986. Mrs. Abel's attorney apparently misread the file and in the notice of claim which he filed on her behalf, he mistakenly stated that the accident for which she intended to bring suit had happened on September 2, 1986.

Because plaintiff's attorney thought that his client's accident had occurred on September 2, 1966, he concluded that January 30, 1987, the date on which he filed the notice, was more than ninety days after the accrual of her cause of action. On or about January 31, 1987, he therefore filed a notice of motion pursuant to N.J.S.A. 59:8-9 requesting permission to file a notice of late claim. In support of that motion, counsel filed his own affidavit which stated that neither plaintiff, an eighty-six year old woman, nor the Pennsylvania attorney whom she consulted was aware of the notice requirements of the New Jersey Tort Claims Act, that the matter had been referred to him after the expiration of the ninety-day filing period and that he filed the notice of claim on Mrs. Abel's behalf promptly after receiving the file.

That application to file a notice of late claim was denied on February 27, 1987, for the stated reason that "mere ignorance of the law is not a sufficient reason to excuse noncompliance with the notice requirement." Plaintiff moved for reconsideration of that decision. The motion for reconsideration was granted, but by an order of May 27, 1987, permission to file the notice of late claim was again denied.

Approximately November 2, 1987, plaintiff filed a notice of motion "for declaration that tort claims notice was made within time." In support of that motion, he filed Mrs. Abel's certification and his own affidavit. Plaintiff's attorney testifies, among other things, that he was not able to discuss the case with Mrs. Abel until June 3, 1987, when she corrected his misimpression, explaining to him that the accident had occurred November 3, 1986.

In opposition to the plaintiff's motion, Atlantic City filed the affidavit of Ron Price, the City Engineer. Mr. Price stated that Atlantic Avenue at its intersection with New York Avenue was repaved between October 8, 1986 and November 13, 1986.

Plaintiff's notice of motion "for declaration that tort claims notice was made within time" was denied by two separate orders. One order, dated December 4, 1987, ruled that "plaintiff's Notice of Tort Claim, which was filed on January 30, 1987, was not filed within the ninety day limit." The other, dated December 9, 1987, denied "plaintiff's application for a declaration that the Tort Claims Notice filed on or about January 27, 1987 was made in accordance with the notice requirements of the New Jersey Tort Claims Act."

Before this court, plaintiff argues, first, that when the Law Division denied her permission to file a notice of late claim, its exercise of discretion was mistaken and, secondly, that her original notice of claim, filed on or about January 30, 1987, constituted substantial compliance with the requirements of the New Jersey Tort Claims Act despite its having described the accident as one which occurred on September 2, 1986, rather than on November 3, 1986. Defendant argues to the contrary on both points.

Our review of the motion judge's rulings necessarily starts with a consideration of two decisions of the New Jersey Supreme Court which have dealt with the notice provisions of the Tort Claims Act. Those two cases are S.E.W. Friel Company v. N.J. Turnpike Authority, 73 N.J. 107, 373 A.2d 364 (1977), and Lamb v Global Landfill Reclaiming, 111 N.J. 134, 543 A.2d 443 (1988). The facts of each are different from ours. Nonetheless, the two cases are important for our purposes because the Supreme Court's opinions in those cases instruct the lower courts how the notice provisions of the statute are to be interpreted and applied. In S.E.W. Friel Company, supra, where the Law Division had denied plaintiff's motion to file a notice of late claim and the Appellate Division had affirmed, the Supreme Court reversed and ruled that in denying plaintiff's application, the trial court's "discretion was mistakenly exercised." Id. 73 N.J. at 120, 373 A.2d 364. The court said:

Our Tort Claims Act is modeled on the California Tort Claims Act of 1963. [Citation omitted.] The courts of that state have examined more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, "to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Viles v. Cal., 66 Cal.2d 24, 56 Cal.Rptr. 666, 669, 423 P.2d 818, 821 (Sup.Ct.1967); see e.g., Thompson v. Fresno Cty., 59 Cal.2d 686, 31 Cal.Rptr. 44, 381 P.2d 924 (Sup.Ct.1963). We adopt that approach as the proper one for consideration of applications to file claims under the New Jersey Tort Claims Act. Id. at 122, 373 A.2d 364.

In Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 543 A.2d 443 (1988), decided eleven years after S.E.W. Friel Co., the Supreme Court again reversed the Appellate Division and reinstated an order of the trial court which granted permission for the filing of a notice of late claim in an environmental tort case. The Supreme Court found that the complexity of the case constituted "sufficient reasons." Id. at 147, 543 A.2d 443. The court declared that in S.E.W. Friel Co., it had "expressly adopted the approach of the California courts," Id. at 147, 543 A.2d 443, and it reiterated the language quoted above from those cases. The importance which it ascribed to the policy expressed by that language is evidenced by the fact that in Lamb the Supreme Court discerned "sufficient reasons" for permitting the filing of a notice of late claim even though the "full and complete explanation given by plaintiffs [for their late filing], as set forth in their attorney's affidavit" was Plaintiffs were unable to comply with the notice of claims requirement within the ninety (90) day period because of the severity of their injuries and inability to investigate the circumstances surrounding the complained of occurence. Lamb v. Global Landfill Reclaiming, 111 N.J. at pp. 134-135, 543 A.2d 443 (Clifford, J., dissenting).

In the present case, viewing Mrs. Abel's position indulgently as we are admonished to do by S.E.W. Friel Co. and Lamb, so that her claim may be disposed of upon its merits, we hold that the original notice of claim filed on plaintiff's behalf within ninety days after her accident on November 3, 1986, adequately complied with the notice requirements of the New Jersey Tort Claims Act. N.J.S.A. 59:1-1 et seq. Her notice was filed January 30, 1987, within ninety days after November 3, 1986. It identified the claimant, described where and how the accident occurred and what injuries had been sustained, and it stated that the claimant did not know of any witnesses. The flaw in Mrs. Abel's notice was that it mistakenly described the accident as having happened on September 2, 1986, rather than on its actual date, November 3, 1986. However, attached to the notice of claim as filed were copies of hospital records which detail Mrs. Abel's condition and treatment and which show clearly that the date of the accident for which the treatment was rendered was November 3, 1986.

There is no suggestion that the erroneous date was supplied in bad faith with an...