Reale v. Wayne Tp.

• Citation: 132 N.J.Super. 100,332 A.2d 236
• Parties: Joanne J. REALE, by her Guardian ad Litem, Salvatore J. Reale and Salvatore J. Reale, Individually, Plaintiffs, v. The TOWNSHIP OF WAYNE, a Municipal Corporation of the State of New Jersey, Defendant.
• Decision Date: 10 January 1975
• Court: Superior Court of New Jersey

Page 100

132 N.J.Super. 100

332 A.2d 236

Joanne J. REALE, by her Guardian ad Litem, Salvatore J Reale and Salvatore J. Reale, Individually, Plaintiffs, v. The TOWNSHIP OF WAYNE, a Municipal Corporation of the State of New Jersey, Defendant.

Superior Court of New Jersey Law Division.

Jan. 10, 1975.

Anthony Fiorello, for plaintiffs (Paul Seligman, West Caldwell, attorney).

Jeffrey M. Kadish, Livingston, for defendant (Morgan, Melhuish, Monaghan, McCoid & Spielvogel, Livingston, attorneys).

ROSENBERG, J.S.C.

This action is brought on behalf of infant plaintiff and her father seeking damages for injuries suffered by the infant in a fall from a bicycle. The complaint filed September 14, 1973 alleges that the little girl fell and was injured on July 7, 1973 when her bicycle struck a depression in a street controlled and maintained by defendant municipality. It contains three counts, the first two encompassing claims on behalf of the injured infant and the third on behalf of her father seeking recovery of money expended in having his daughter's injuries treated. In its answer the township denies all allegations of negligence and sets out various separate defenses including a claim that it is immune from suit. The matter is now before the court on defendant's motion for summary judgment dismissing the complaint or, in the alternative, limiting the extent of plaintiffs' potential recovery.

The basis for defendant's motion to dismiss is strictly limited to a question of law and does not involve resolution of any issue of material fact. It is, therefore, ripe for summary judgment. R. 4:46--2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954). Defendant's argument is that plaintiffs have failed to comply with mandatory provisions of the Tort Claims Act, N.J.S.A. 59:1--1 et seq., requiring that timely notice of all claims against a public entity be given else a bar be imposed on action against the entity. It is for the court to determine the applicability of such provisions to the instant facts and the effect thereto.

At the outset it should be noted that defendant has been careless in its pleadings. Under R. 4:5--4 a responsive pleading must specifically set forth the separate defenses raised. In the present motion defendant seeks dismissal on the basis of plaintiffs' alleged noncompliance with provisions of the Tort Claims Act. Such noncompliance is not set out in the answer as a separate defense. Rather, defendant makes the broader claim of immunity from suit, a defense which was effectively abrogated with the effective date of the act (July 1, 1972, N.J.S.A. 59:14--4) and, therefore, not available at any time instant to this lawsuit. Thus defendant pleads a defense no longer viable and moves for judgment under a defense which it fails to affirmatively plead.

In Jackson v. Hankinson, 94 N.J.Super. 505, 514, 229 A.2d 267 (App.Div.1967), aff'd. 51 N.J. 230, 238 A.2d 685 (1968), the court determined that under R.R. 4:8--3, the source rule of R. 4:5--4, the defense of qualified immunity of a municipality had to be specifically pleaded in order to avoid surprise, which purpose it identified as 'the spirit of the rule.' However, it went on to qualify this pleading requirement where public policy compelled having the defense before the court and the other party was not prejudiced, citing Douglas v. Harris, 35 N.J. 270, 173 A.2d 1 (1961), as authority. This same rationale is directly applicable to the present case. The public policy in having the Tort Claims Act applied here is as compelling as that in Jackson, supra. Although not pleaded, invocation of the act should come as no surprise to plaintiffs in view of the pleading of sovereign immunity, a defense which is at least of the same genre as those encompassed by the act. Plaintiffs have complained of no surprise or prejudice and the court perceives none. While it is clear that an affirmative defense under the act should properly be pleaded under R. 4:5--4, failure to do so may be excused by the court under appropriate circumstances. Such circumstances are extant here.

The purpose of the Tort Claims Act is to modity the doctrine of sovereign immunity and create limited situations in which individuals may bring tort claims against public entities. N.J.S.A. 59:1--2. In keeping with this purpose the act provides certain procedures which must be followed in instituting and pursuing such claims. Among them is provision for notification of the entity of any claim against it. N.J.S.A. 59:8--1 et seq. lays out the manner in which claims are to be presented. Included within the presentment scheme is a time provision encompassed in N.J.S.A. 59:8--8:

59:8--8. Time for presentation of claims 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 ninetieth day after accrual of the cause of action. After the expiration of 6 months from the date note of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8--9; or

b. Two years have elapsed since the accrual of the claim; or

c. The claimant or his authorized representative entered into a settlement agreement with respect to the claim.

Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations contained herein, after his coming to or being of full age or sane mind.

N.J.S.A. 59:8--9 modifies the bar to action created in the above cited section by permitting filing of notice within one year of accrual of a claim on application to and with approval of the superior court. The effect of these sections is to create an absolute bar to action under the act if notice of claim is not filed within 90 days or one year, as the case may be, or if failure to file such notice is not excused.

On the instant facts plaintiffs fail to comply with either the 90 day or one year requirements. A cause of action accrued on behalf of the infant on July 7, 1973, the date of her injury. The record does not show that a formal notice of claim was ever filed or that judicial leave was sought to file a late claim. It is on this ground that defendant seeks to invoke the bar in N.J.S.A. 59:8--8. Plaintiffs argue that the last sentence of the section tolls the notice requirement and therefore avoids a bar to their action. Since it is clear that the notice requirements have not been observed the question is the extent to which the language of the last sentence excuses such noncompliance.

In Rost v. Bd. of Ed. Fair Lawn, 130 N.J.Super. 187, 325 A.2d 863 (Law Div.1974) the court was faced with facts substantially the same as those in this case. There as here an action for injuries allegedly suffered by an infant was brought against a public entity without the proper filing of a notice of claim. On argument defendant conceded that the time limitations for filing notice were tolled as they affected the infant's action, and the court in its opinion dealt exclusively with the viability of the father's claim for consequential damages. Here defendant does not concede that the infant's claim is viable. Rather it asserts that the language of the last sentence of N.J.S.A. 59:8--8 tolls only the limitations period for commencing an action and not the condition precedent of complying with the notice requirements. The argument is that if the notice provisions are observed within the time periods set out in N.J.S.A. 59:8--8, the child's action may be commenced within the limitation period provided by the section after she reaches majority, but that if such provisions are not met the bar to action is mandatorily invoked. To support this contention defendant relies heavily on California case law on the ground that the California Tort Claims Act of 1963, Cal.Gov't.Code § 810 et seq. closely parallels the New Jersey act and the case law under it is entitled to considerable weight by our courts. Because of the absence of case law construing our act defendant argues its position by analogy to the California experience.

In the preparation and drafting of the New Jersey act consideration was given to the California act and its background and impact. See Report of the Attorney General's Task Force on Sovereign Immunity (1972) Chapter 4. However the New Jersey act does not reflect all the provisions contained in the California act. The California statute includes a fairly elaborate scheme for granting leave to file an untimely notice to claim. Cal.Gov't.Code § 946.6(c) (2) extends relief from the notice provisions to the case of minors but such relief is limited by the terms of that and other sections. See Cal.Gov't.Code §§ 911.2, 911.4, 911.6 and 945.4. Nowhere in the California act does there appear language comparable to that in the last sentence of N.J.S.A. 59:8--8. This indicates an intention by our Legislature to depart from the scheme adopted in California. When an act is adopted in this State which is a substantial reproduction of an act of another state on the same subject the interpretation given that act by the courts of that state is presumed to have been adopted by our Legislature as indicating its purpose and effect. Williams v. Knox, 10 N.J.Super. 384, 76 A.2d 712 (Law Div.1950); Ford Motor Co. v. N.J. Dept. of Labor & Industry, 7 N.J.Super. 30, 71 A.2d 727 (App.Div.1950); Rutkowsky v. Bozza, 77 N.J.L. 724, 73 A. 502 (E. & A.1909). Since the last sentence of N.J.S.A. 59:8--8 is not such a reproduction the interpretation by the California courts is not on point and therefore is not given effect.

In the official comment to N.J.S.A. 59:8--3 the purpose of the entire claim notification requirement under Chapter 8 of the...