Marino v. City of Union City

• Decision Date: 20 August 1975
• Parties: Ralph MARINO, Plaintiff, v. CITY OF UNION CITY et al., Defendants.
• Court: New Jersey Superior Court

Page 233

136 N.J.Super. 233

345 A.2d 374

Ralph MARINO, Plaintiff, v. CITY OF UNION CITY et al., Defendants.

Superior Court of New Jersey,

Law Division.

Aug. 20, 1975.

Roger M. Kahn, Hackensack, for plaintiff (Aronsohn, Kahn & Springstead, Hackensack, attorneys).

George J. Kaplan, Union City, for defendant City of Union City.

Ralph R. Feigelson, Union City, for defendant Township of North Bergen.

BILDER, J.S.C.

This is a motion by an injured party for leave to file a notice of late claim against the City of Union City pursuant to the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:8--9.

Plaintiff Ralph Marino alleges that he was injured in an accident on August 21, 1974 when, in the course of a baseball game in which he was playing catcher, a runner advancing from third base ran into him. As a result of this play at home plate plaintiff alleges he received severe injuries which left him a quadriplegic. Since the accident he has been almost continuously hospitalized in New York City.

Plaintiff further alleges that the severity of his injuries and the accompanying incapacitation were such that his failure to file a claim within the 90-day period provided for in N.J.S.A. 59:8--8 constitutes excusable neglect. He says that it was only recently that he contacted a New York attorney with respect to this matter and that New Jersey counsel was consulted promptly thereafter.

The defendant does not dispute the severity of the injuries but urges that plaintiff, though physically incapacitated, could have made known his claim much sooner by the use of third persons with whom he was regularly able to communicate.

The New Jersey Tort Claims Act provides a procedure which claimants are required to follow when seeking recovery from public entities based upon tortious conduct. N.J.S.A. 59:8--1 Et seq. Included in this procedure are provisions requiring the claimant to provide the public entity with notice of the claim. Ibid. The notification requirements of the act have been recognized as serving two salutory purposes: (1) to allow a public entity at least six months for administrative review of a claim and thus provide an opportunity for the settlement of meritorious claims prior to suit, and (2) to provide for prompt notification of a claim to permit adequate investigation and the preparation of a thorough defense. Reale v. Wayne Tp., 132 N.J.Super. 100, 109, 332 A.2d 236 (Law Div.1975); Dambro v. Union County Park Comm'n, 130 N.J.Super. 450, 455, 327 A.2d 466 (Law Div.1974); Comment to N.J.S.A. 59:8--3, Report of the Attorney General's Task Force on Sovereign Immunity, 230 (1972).

In order to implement its policy of prompt notification, the Legislature provided that claims must be filed within 90 days from the accrual of the cause of action or be 'forever barred.' N.J.S.A. 59:8--8. However, the Legislature recognized that circumstances might arise in which the needs of justice require that injured parties be able to get relief from what might be a harsh application of this rule. Therefore the Legislature provided for relief by giving the Superior Court discreation to permit the filing of a late notice of claim at any time within one year after the accrual of the claim upon a showing by affidavit of sufficient reasons for the delay, provided the public entity is not substantially prejudiced thereby. N.J.S.A. 59:8--9. ¹ In exercising that discretion the court must examine both sides of the coin: the reasons for plaintiff's failure to file within the 90-day period and the prejudice to the public entity resulting from the late notice. Thus, two issues are presented to the court. First, is the plaintiff's incapacity sufficient reason for his failure to file notice of claim within the 90-day period; and, second, will the granting of the requested relief substantially prejudice the public entity?

There are two reported decisions in New Jersey that have passed on the question of what are sufficient reasons within the meaning of N.J.S.A. 59:8--9. In Lutz v. Semcer, 126 N.J.Super. 288, 314 A.2d 86 (Law Div.1974), plaintiff sought leave to file a late claim on the grounds that he was unaware of the act and its 90-day notification requirement; that he was unaware of the seriousness of his injuries until some 4 1/2 months after the accident, and that his right to assert a claim for pain and suffering did not accrue until he had met the $1,000 threshold under N.J.S.A. 59:9--2(d). The court denied the motion for leave to file a late claim, finding the reasons advanced by plaintiff insufficient. As to the first ground the court said: 'Mere ignorance of the law is not a sufficient basis to excuse compliance with the requirements of this remedial statute.' Id. at 297, 314 A.2d at 91. As to the second ground, the court noted that the plaintiff, an anesthesiologist, had considered his injuries of sufficient importance to cause him to notify the police surgeon of them, as well as to advise the municipal court at the traffic hearing. Id. at 296, 314 A.2d 86. In rejecting the third ground, the court noted that plaintiff's claim accrued at the time of the accident. Id. at 298, 314 A.2d 86. 'Any claim which he wished to assert for his injuries, however slight, was required to be filed within 90 days pursuant to N.J.S.A. 59:8--8.' Ibid.

In Wade v. N.J. Turnpike Authority, 132 N.J.Super. 92, 332 A.2d 232 (Law Div.1975), the court found the reasons advanced by plaintiff for delay to be sufficient and, upon the further finding that the public entities were not substantially prejudiced thereby, granted the motion for leave to file a late claim. It said Here there are reasons other than ignorance of the law, set forth in the affidavits and brief accompanying this motion. Those additional reasons include: the five month confinement of Marle P. Wade, due to injuries received in the accident; his unawareness of any claim against public entities; the fact that shortly after the accident he was removed from a New Jersey hospital and flown to Maine where he remained until after April 28, 1974 (six months after the accident); and the late date at which New Jersey counsel was brought into the matter and apprised of the possible claims against public entities. Such reasons are certainly sufficient within the meaning of N.J.S.A. 59:8--9. (at 99, 332 A.2d at 236.)

Our courts have taken notice that the New Jersey Tort Claims Act was based upon California's Tort Claims Act and have looked to its case law for guidance. Dambro v. Union County Park Comm'n, supra, 130 N.J.Super. at 456, 327 A.2d 466; Lutz v. Semcer, supra, 126 N.J.Super. at 292, 314 A.2d 86.

In California the statute provides for late filing if, among other things, the claimant was physically incapable of timely filing. In its application this provision has been liberally construed to permit late filing where there is serious physical disability, even though the physical and mental condition did not preclude communicating with others or filing timely notice through third persons.

In Gonzales v. Merced Cty., 214 Cal.App.2d 761, 29 Cal.Rptr. 675 (D.Ct.App.1963), plaintiff sought leave to file a late claim for injuries received while diving into a lake which resulted in his becoming a quadriplegic. The county appealed from the grant of plaintiff's petition, arguing that plaintiff was not mentally incapacitated during the period in which he failed to file his claim and thus could have obtained an attorney or had his wife act on his behalf to file for him within time. In affirming the grant of the leave to file a late claim the court held that there was no question that plaintiff was permanently physically incapacitated and that this was sufficient reason for the delay in filing. It went on to say:

Physical disability alone, as in this case, is sufficient without regard to mental capacity, and the law does not require someone else to act for him * * *. (29 Cal.Rptr. at 678).

Nor need the physical disability be the sole reason for the delay. In Thompson v. Fresno Cty., 59 Cal.2d 686, 31 Cal.Rptr. 44, 381 P.2d 924 (Sup.Ct.1963), a quadriplegic was denied leave to file a late claim where the trial court found her delay was caused by misrepresentations of the county's agents as to the true cause of her paralysis. In reversing, the Supreme Court said that plaintiff's uncontradicted...