Keller v. Somerset County

• Decision Date: 28 October 1975
• Citation: 347 A.2d 529,137 N.J.Super. 1
• Parties: Irma M. KELLER, Administratrix ad Prosequendum of the Estate of William Keller, Deceased, and Irma M. Keller, General Administratrix of the Estate of William Keller, a minor, Deceased, Plaintiff-Respondent, v. COUNTY OF SOMERSET, Defendant-Appellant, and Township of Franklin, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

137 N.J.Super. 1

347 A.2d 529

Irma M. KELLER, Administratrix ad Prosequendum of the Estate

of William Keller, Deceased, and Irma M. Keller, General Administratrix of the Estate of William Keller, a minor, Deceased, Plaintiff-Respondent, v. COUNTY OF SOMERSET, Defendant-Appellant, and Township of Franklin, Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued April 15, 1975.

Remanded May 30, 1975.

Findings and Conclusions on Remand July 16, 1975.

Letter Memoranda July 29, 31 and Aug. 4, 1975.

Decided Oct. 28, 1975.

Mark D. Larner, Newark, for defendant-appellant (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys, Mark D. Larner, Newark, on brief after remand).

Andrew V. Clark, Perth Amboy, for respondent Keller (Seaman, Clark, Levine, Addy & DeAlmedia, Perth Amboy, attorneys, Andrew V. Clark, Perth Amboy, on brief after remand).

Thomas T. Chappell, Jersey City, for defendant Tp. of Franklin (Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City, attorneys, Frank L. Brunetti, Jersey City, on brief after remand).

Before Judges KOLOVSKY, LYNCH and ALLCORN.

The opinion of the court was delivered by

LYNCH, J.A.D.

Leave having been granted, defendant County of Somerset (county) appeals from an order of the Law Division denying its motion to dismiss plaintiff's complaint for failure to comply with the notice provision of the New Jersey Tort Claims Act, N.J.S.A. 59:1--1 Et seq. (act). ¹ The act requires that a notice of claim be filed with a public entity within 90 days after a cause of action accrues against it. N.J.S.A. 59:8--8. ²

On July 27, 1973 plaintiff's decedent, her minor son, was driving along Bunker Hill Road in Franklin Township, Somerset County, when his car went off the road and struck a tree. The accident resulted in his death. A notice of claim was filed with each defendant on January 17, 1974, or 174 days after the accrual of the cause of action.

On July 11, 1974 plaintiff's counsel filed a notice of motion for leave to file a notice of claim out of time, pursuant to N.J.S.A. 59:8--9. That section reads as follows:

59:8--9. Notice of late claim.

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 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 by section 59:8--8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim.

The affidavit of plaintiff's counsel which accompanied the motion asserted that plaintiff had not retained counsel until after the 90-day period had expired and that the filing of the 'civil complaint * * * was not feasible until receipt of an engineer's report upon which the action is based and this report was not received until June 21, 1974.' ³

Following the trial judge's denial of the county's motion to dismiss, we heard argument in this matter and remanded it to the trial judge to determine whether there were 'sufficient reasons' for plaintiff's failure to file a notice of claim within the 90-day period. N.J.S.A. 59:8--9. The trial judge was directed to file his findings and conclusions with this court. He has done so after receiving from plaintiff both a further affidavit and, pursuant to leave granted by this court, her oral testimony. The judge found that the failure to file a notice of claim within time was due to two reasons: (1) 'The plaintiff * * * was under a debilitating emotional strain following the death of her son,' and (2) '* * * she was not aware of the possible existence of a claim against the public entity until the filing time expired.' The judge considered such reasons sufficient and permitted the late filing of the notice of claim.

At the outset we note that section 9 of the Tort Claims Act permits relaxation of the 90-day limitation for 'sufficient reasons' as long as the public entity is not substantially prejudiced thereby. N.J.S.A. 59:8--9. It is conceded that the public entities here were in no way prejudiced by the delay in filing the notice of claim. Therefore, the issue is reduced to whether the trial court's findings constitute 'sufficient reasons' for failure to file the notice of claim within the 90-day period and whether the trial court abused its discretion in permitting the filing out of time.

We must first recognize the nature of the trial judge's action and the scope of our review thereof. By its express terms section 9 permits relaxation of the 90-day limitation 'in the discretion' of a judge of the Superior Court. Thus an appellate court cannot reverse unless there was an abuse of that discretion. The act, adopted in 1972, was largely modeled on the California Tort Claims Act of 1963. Report of the Attorney General's Task Force on Sovereign Immunity, 10 (1972). A review of the decisions of the appellate courts of that state demonstrates their disinclination to overturn the action of the trial judge on this issue. Thus, when the trial judge has denied leave to file a late claim and that decision has been upheld on appeal, the affirmance has been largely based on the deference accorded discretionary lower court decisions. See Tammen v. County of San Diego, 66 Cal.2d 468, 58 CalRptr. 249, 426 P.2d 753 (Sup.Ct.1967); Bennett v. City of Los Angeles, 12 Cal.App.3d 116, 90 Cal.Rptr. 479 (D.Ct.App.1970); Martin v. City of Madera, 265 Cal.App.2d 76, 70 Cal.Rptr. 908 (D.Ct.App.1968). On the other hand, where the trial judge has permitted plaintiff to file a claim out of time, the appellate court has customarily sustained the lower court's exercise of its discretion. County of Santa Clara v. Superior Court, 4 Cal.3d 545, 94 Cal.Rptr. 158, 483 P.2d 774 (1971); O'Brien v. City of Santa Monica, 220 Cal.App.2d 67, 33 Cal.Rptr. 770 (1963); Gonzales v. County of Merced, 214 Cal.App.2d 761, 29 Cal.Rptr. 675 (1963).

The reticence of California's appellate courts to interfere with the exercise of the trial judge's discretion on this issue was emphasized in Bennett v. City of Los Angeles, supra, where the court stated: '(W)e must be careful to preserve the area of the superior court's discretion and we must do this in fact, as well as in words.' 90 Cal.Rptr. at 482. In Martin v. City of Madera, supra, the court affirmed a denial of plaintiff's application to file out of time although it conceded that if the trial court had granted the application, 'it is unlikely that we would have disturbed the trial judge's discretion * * *.' 70 Cal.Rptr. at 911. The court in Martin respected the trial judge's discretion despite the fact that in this area denials of relief 'are scanned more carefully than cases where the court granted the relief, 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. State of California, 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 669, 423 P.2d 818, 821 (Sup.Ct.1967). See Flores v. County of Los Angeles, 13 Cal.App.3d 480, 91 Cal.Rptr. 717 (D.Ct.App.1970).

In the present case, since the trial judge granted the application to file a late notice of claim, we review his action with due deference to the discretion which the statute has reposed in him.

The trial judge found that plaintiff was not aware of the possible existence of a claim against defendant public entities until well after the accident and that this was sufficient reason for her failure to file a notice of claim within the prescribed period of time. ⁴ It is reasonable to accept the proposition that plaintiff was ignorant of the requirements of the Tort Claims Act, which had been adopted only 13 months before the fatal accident.

Defendant argues that 'ignorance of the law is no excuse,' citing Lutz v. Semcer, 126 N.J.Super. 288, 314 A.2d 86 (Law Div.1974). ⁵ The decision in Lutz was an exercise of that trial court's discretion. The injury involved in Lutz occurred on January 27, 1973, when defendant police officers were attempting to serve a traffic summons on plaintiff Lutz, an anesthesiologist. Lutz alleged that while he was talking to the officers one of them closed the window of the police car on his finger, as a result of which he suffered the injuries to his hand and back which were the basis of his claim. On February 7, 1973 he appeared at Millburn Municipal Court to answer the traffic summons, at which time he advised the court of his injuries. He also stated that he had retained counsel for the traffic violations. A few days later he called the police surgeon of Millburn, advising him of the injuries. Despite this, Lutz did not move for leave to file a notice of claim until almost six months had passed. 126 N.J.Super. at 290--291, 314 A.2d 86. The judge, relying on his findings that plaintiff had from the very first been aware of his injuries and of who had caused them, and that plaintiff had retained an attorney in connection with the incident, held that he had not established sufficient reasons for failing to file a notice of claim on time. Lutz, supra at 296, 300, 314 A.2d 86. It was in this context that the court stated that mere ignorance of the law is an insufficient basis to excuse a failure to comply with the statute. Lutz knew from the day he was injured that he had a cause of action against the police officers. The trial court exercised its discretion and held that there was no excuse for Lutz' failure to file a notice of claim within 90 days.

Concededly, the maxim 'ignorance of the law is no excuse' is an absolute in the field of criminal law....