Lutz v. Semcer

• Decision Date: 08 January 1974
• Citation: 126 N.J.Super. 288,314 A.2d 86
• Parties: Joseph F. LUTZ and Dorothy Lutz, Plaintiffs, v. Edward SEMCER and Paul Boergershausen, Defendants.
• Court: New Jersey Superior Court

Page 288

126 N.J.Super. 288

314 A.2d 86

Joseph F. LUTZ and Dorothy Lutz, Plaintiffs, v. Edward SEMCER and Paul Boergershausen, Defendants.

Superior Court of New Jersey,

Law Division.

Jan. 8, 1974.

Greenstone & Greenstone, Newark, for plaintiffs.

Braff, Litvak, Ertag, Wortmann & Harris, East Orange, for defendants and Township of Millburn.

MICHELS, J.S.C.

Plaintiffs move before this court for leave to file a notice of late claim against the Township of Millburn pursuant to the provisions of N.J.S.A. 59:8--9, and to perfect their claim against defendant police officers.

Joseph F. Lutz (hereinafter referred to as plaintiff) instituted this action against defendant police officers of the Township of Millburn seeking damages for personal injuries allegedly sustained by him on January 27, 1973 when said defendants attempted to serve a traffic summons. His wife sues Per quod. On January 27, 1973 plaintiff was driving his car in the Township of Millburn when he was stopped by defendants and served with a traffic summons for going through a stop sign, passing on the right and defective brake lights. Plaintiff alleges that while he was talking to defendants one of them closed the window of the police car on his finger and as a result he allegedly sustained permanent injuries to his finger and back.

On February 7, 1973 plaintiff appeared at the Millburn Municipal Court to answer the traffic summons. The municipal court record reveals that plaintiff pleaded not guilty to the charges and informed the court that he had sustained an injury to his finger in the course of the issuance of the summons. Plaintiff stated to the court that he had retained counsel for the traffic violations, but that his attorney was unable to appear since the matter was being heard in the evening. Several days later plaintiff called the police surgeon of Millburn, informing him that he had injured his right hand and his back as a result of the foregoing incident and requested an examination. The police surgeon advised plaintiff to see his private physician.

After being hospitalized for lumbar disc surgery, which was performed on June 7, 1973, plaintiff consulted an attorney who informed him that he would present a formal notice of claim to the Township of Millburn. The notice of motion was filed on July 10, 1973. Plaintiff bases his request for leave to file the late notice on the ground that he was not aware of the enactment of the recent New Jersey Tort Claims Act which requires that actions against public entities be preceded by a claim filed within 90 days after accrual of the cause of action. See N.J.S.A. 59:8--8. Additionally, plaintiff offers as a ground for excusable neglect to file said claim that he was unaware of the seriousness of his injuries until his hospitalization in June 1973. He further bases his request for leave to file a late claim on the ground that his right to assert a claim for pain and suffering did not accrue until he incurred medical expenses greater than the amount of $1,000 under N.J.S.A. 59:9--2(d).

Millburn contends that plaintiff's delay in filing due to ignorance of the Tort Claims Act was not excusable, and that it will be substantially prejudiced by the filing of a late notice of claim.

Presently, tort claims against public entities are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1--1 et seq., which became effective on July 1, 1972. N.J.S.A. 59:8--3 provides No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.

N.J.S.A. 59:8--8 provides for the time for presentation of claims as follows:

A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the nine-tieth day after accrual of the cause of action. * * *

N.J.S.A. 59:8--9 provides with respect to a 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.

Thus, a plaintiff may in the discretion of the court be permitted to file a late notice of claim upon a showing of sufficient reason for the delay, provided that the defendant is not substantially prejudiced thereby. There does not appear to be any reported decision in New Jersey on this issue, and therefore the court has looked to the law of California for guidance in determining whether to grant plaintiff's motion for leave to file a late notice of claim. The Report of the Attorney General's Task Force on Sovereign Immunity published in May 1972 recommends that New Jersey enact a tort claims act following the basic statutory approach contained in the California Tort Claims Act of 1963.

The California cases hold uniformly that the determination of whether delay in filing is excusable rests in the discretion of the trial judge. Viles v. California, 66 Cal.2d 24 56 Cal.Rptr. 666, 423 P.2d 818 (Sup.Ct.1967); Martin v. City of Madera, 265 Cal.App.2d 76, 70 Cal.Rptr. 908 (D.Ct.App.1968); Clark v. City of Compton, 22 Cal.App.2d 522, 99 Cal.Rptr. 613 (Ct.App.1971); Black v. County of Los Angeles, 12 Cal.App.3d 670, 91 Cal.Rptr. 104 (Ct.App.1970).

Plaintiff relies on the case of Viles v. California, Supra, in support of his argument that because of excusable neglect he should now be permitted to file this late claim. In Viles an application was made by plaintiff for leave to present a claim against the state for the wrongful death of his wife after the statutory period of 100 days had expired. The applicable California statute, Cal.Gov.Code § 912, provided in pertinent part (at 820):

* * * (b) The superior court shall grant leave (to file a late claim) if the court finds that the application to the board (to file late) was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied * * * and that:

(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity * * * establishes that it would be prejudiced if leave to present the claim were granted; * * *.

The petition was denied, and plaintiff appealed to the California Supreme Court, which reversed the trial judge and granted relief to plaintiff based on his mistaken conclusion, after having been informed by insurance adjustors that he had a year in which to bring an action, that an action against the state could be brought in the same manner and within the same time limits as one against a private person. The court held that the mistake was excusable, not being an unreasonable misconception nor one that an average prudent person would not have formed under the circumstances.

However, in Tammen v. County of San Diego, 66 Cal.2d 468, 58 Cal.Rptr. 249, 426 P.2d 753 (1967), the California Supreme Court declined to reverse the trial court which had denied plaintiff the right to file a late claim based on, among other things, the ground of excusable neglect, mistake, surprise or inadvertence. In that case plaintiff based its failure to file within the prescribed time limit on, among other things, the mistake of his counsel that the law regarding the presentation of claims to public entities was 'uncertain.' The court, in holding that the delay was not caused by a mistake of law constituting excusable neglect, stated:

* * * (I)t has been held that 'ignorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief (citations) and such facts will certainly sustain a finding denying relief. (Citations).

'There is a somewhat tenuous line between a mistake of law and ignorance of law. The difference is probably only one of degree. In such cases all factors involved must be considered to determine whether relief should be granted or denied. While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. (Citation). In the instant case we are not interested in the question as to whether the trial court could have granted relief based on the claimed mistake of law, but, since the trial court denied relief, only in whether such holding was within its discretion.' (Security Truck Line v. City of Monterey, 117 Cal.App.2d 441, 445 (3, 4), 256 P.2d 366, 369, 257 P.2d 755.)

In A & S Air Conditioning v. John J. Moore Co., 184 Cal.App.2d 617, 620 (7, 8) 7 Cal.Rptr. 592, 594, the court said: 'However, a mistake as to law does not require relief from default as a matter of law. (Citation). The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.' Excusable neglect is 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' (Alderman v. Jacobs, 128 Cal.App.2d 273, 276(5), 274 P.2d 930, 932. (58 Cal.Rptr. at 254, 426 P.2d at 758).

The court rejected plaintiff's further assertion that the identity of the public entities responsible for the maintenance of the...