DOUGLAS BATES VS. TOWNSHIP OF JACKSON (L-1994-17, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0588-17T3
A-0667-17T3
DOUGLAS BATES,
Plaintiff-Respondent,
v.
TOWNSHIP OF JACKSON,
Defendant-Appellant,
and
COUNTY OF OCEAN,
Defendant-Respondent,
and
STATE OF NEW JERSEY,
SCOTT W. ALLERTON,
and LORI ALLERTON,
Defendants.
_______________________________
DOUGLAS BATES,
Plaintiff-Respondent,
v.
TOWNSHIP OF JACKSON,
Defendant-Respondent,
and
COUNTY OF OCEAN,
Defendant-Appellant,
and
STATE OF NEW JERSEY,
SCOTT W. ALLERTON,
and LORI ALLERTON,
Defendants.
_______________________________
Argued October 11, 2018 – Decided October 26, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1994-17.
Michael S. Nagurka argued the cause for appellant
Township of Jackson in A-0588-17 and respondent
Township of Jackson in A-0667-17 (Gilmore &
Monahan, PA, attorneys; Michael S. Nagurka, of
counsel and on the briefs).
Christopher A. Khatami argued the cause for appellant
County of Ocean in A-0667-17 and respondent County
of Ocean in A-0588-17 (Berry Sahradnik Kotzas &
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Benson, attorneys; Christopher A. Khatami, on the
briefs).
Robert R. Fuggi, Jr., argued the cause for respondent
Douglas Bates (Fuggi Law Firm, PC, attorneys; Robert
R. Fuggi, Jr., on the briefs).
PER CURIAM
In these consolidated matters, defendants the County of Ocean and
Township of Jackson appeal from a September 15, 2017 order granting
plaintiff's motion to file a Notice of Late Claim pursuant to the New Jersey Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.
On the morning of September 14, 2016, plaintiff Douglas Bates was riding
his motorcycle, on North New Prospect Road, near Andover Road, in Jackson
Township. According to plaintiff, he encountered a "dangerous, slippery, and
extremely slick surface," which caused him to lose control of the motorcycle
and collide with another vehicle traveling in the opposite direction. Plaintiff
was transported by ambulance and admitted to Jersey Shore University Medical
Center.
According to plaintiff's medical records, his injuries included: multiple
fractures of ribs; a dislocated right shoulder; a right knee laceration; first and
second left rib fractures; a right comminuted scapula fracture; two mediastinal
nematomas; C2 dens and posterior ring fracture; stable burst fracture of TS-T6
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vertebra; traumatic pneumothorax; anterior displaced type II dens fracture;
multiple bilateral rib fractures; a displaced associated transv/postfc right
acetabulum; a displaced fracture of seventh cervical vertebra; a displaced
fracture genoid cavity of scapula, right shoulder; a laceration without foreign
body, right knee; an injury of unspecified ithrathoracic organ; multiple spine
fractures, C2, C4, C7, T2, T3, TS; bilateral rib fractures with right
pneumothorax; concussion with a loss of consciousness; and significant
fractures extending from C2 – Cs.
The motion judge noted plaintiff had several surgeries including:
Open reduction and internal fixation of a right
comminuted scapula fracture on September 19; chest
tube insertion, trauma bay on September 14; posterior
cervical and thoracic instrumentation on September 16;
open treatment of fractures, subluxation, multiple
cervical and thoracic fractures; posterior segmental
spinal instrumentation C3-4, 5, 6, Tl-2, 3, 4, 6, 7;
posterior cervical thoracic infusion at C3-4, C4-5, C5-
6, C6-7, C7-Tl, Tl-T2, T2-T3, T3-T4, T4-T5, T5-T6,
T6-T7 with allograph.
Plaintiff was discharged from the hospital on September 22, 2016, and
transferred to Meridian Rehabilitation Center for a short period of time. He was
readmitted to the hospital to treat a surgical wound infection on October 3, 2016,
and had surgical procedures on October 3, 6, and 13, 2016, to treat the infection.
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Plaintiff was discharged again from the hospital on October 13, 2016, and then
returned to the rehabilitation center where he was treated until December 2016.
According to plaintiff's certification, in October 2016, his girlfriend "of
her own accord" contacted a law firm to represent him regarding the accident.
On October 24, 2016, the firm informed plaintiff's girlfriend it would not
represent plaintiff. The ninety-day accrual period to file plaintiff's TCA notice
expired on December 14, 2016. Plaintiff was unaware of the deadline.
Plaintiff continued his search for representation. In early 2017, he
contacted a second attorney seeking representation. In March 2017, the attorney
referred plaintiff to a third law firm. Plaintiff remained unaware of the TCA
notice requirement.
Plaintiff then contacted his present counsel on June 28, 2017. Counsel
filed a motion for leave to file a late notice of claim on July 12, 2017. In support
of his motion, plaintiff provided his medical records and a certification detailing
the facts we have recited.
Following oral argument, the motion judge granted plaintiff's motion. The
judge found defendants failed to show they would be substantially prejudiced
by the filing of a late notice of tort claim. The judge concluded plaintiff's
"severe disabling and debilitating injuries" constituted extraordinary
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circumstances and justified the filing of a late notice of claim. This appeal
followed.
I.
We review an order granting or denying a motion for leave to file a late
notice of claim under the TCA for an abuse of discretion. McDade v. Siazon,
208 N.J. 463, 476–77 (2011) (citing Lamb v. Glob. Landfill Reclaiming, 111
N.J. 134, 146 (1988)). "Although deference will ordinarily be given to the
factual findings that undergird the trial court's decision, the court's conc lusions
will be overturned if they were reached under a misconception of the law." D.D.
v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) (citing McDade
v. Siazon, 208 N.J. 463, 473-74 (2011)).
II.
The TCA requires a claimant to serve a notice of claim upon a public
entity "[no] later than the [ninetieth] day after accrual of the cause of action."
N.J.S.A. 59:8-8. "In determining whether a notice of claim under N.J.S.A. 59:8-
8 has been timely filed, a sequential analysis must be undertaken." Beauchamp
v. Amedio, 164 N.J. 111, 118 (2000).
The first task is always to determine when the claim
accrued. The discovery rule is part and parcel of such
an inquiry because it can toll the date of accrual. Once
the date of accrual is ascertained, the next task is to
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determine whether a notice of claim was filed within
ninety days. If not, the third task is to decide whether
extraordinary circumstances exist justifying a late
notice.
[Id. at 118–19 (emphasis added).]
The TCA provides the following procedure allowing claimants to file a notice
of claim beyond the required ninety-day period:
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 one year
after the accrual of his claim provided that the public
entity or the public employee has not been substantially
prejudiced thereby. Application to the court for
permission to file a late notice of claim shall be made
upon motion supported by affidavits based upon
personal knowledge of the affiant showing sufficient
reasons constituting extraordinary circumstances for
his failure to file notice of claim within the period of
time prescribed by section 59:8-8 of this act or to file a
motion seeking leave to file a late notice of claim within
a reasonable time thereafter; provided that in no event
may any suit against a public entity or a public
employee arising under this act be filed later than two
years from the time of the accrual of the claim.
[N.J.S.A. 59:8-9.]
Therefore, in order to file a late notice of claim a plaintiff must
demonstrate: "(1) 'extraordinary circumstances' for the failure to file a notice of
claim within the ninety-day period following the accrual of a cause of action;
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and (2) proof that 'the public entity . . . has not been substantially prejudiced' by
the late propose notice of claim." Blank v. City of Elizabeth, 318 N.J. Super.
106, 120 (App. Div. 1999) (citing Allen v. Krause, 306 N.J. Super. 448, 455
(App. Div. 1997)).
Defendants argue the motion judge ignored that plaintiff was searching
for an attorney during the ninety-day period he was in rehabilitation. Defendants
also argue the Supreme Court held in D.D. that an attorney's failure to advise a
client regarding the ninety-day filing period under the TCA was not a basis to
toll the time to file a notice of tort claim.
Separately, the County argues plaintiff was not hospitalized for the full
initial forty-four day period. The County asserts there was no detail provided in
plaintiff's certification as to why he could not call an attorney while he was in
the hospital.
As to the second prong, which requires a consideration of the prejudice to
defendants, the Township argues it was prejudiced by the lack of notice of
plaintiff's claim. The County asserts no argument as to the second prong. We
address these arguments in turn.
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A.
The TCA "does not define what circumstances are to be considered
'extraordinary' and necessarily leaves it for a case-by-case determination as to
whether the reasons given rise to the level of 'extraordinary' on the facts
presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citations omitted).
The finding of extraordinary circumstances is "an imprecise standard" and "each
case will depend on its own circumstances." Id. at 629.
Our Supreme Court has stated "[p]ublished authority from our Appellate
Division has generally concluded that medical conditions meet the extraordinary
circumstances standard if they are severe or debilitating." D.D., 213 N.J. at 149
(citations omitted). Cases in which medical conditions have been asserted as
proof of extraordinary circumstances have placed an emphasis on "the severity
of the medical condition and the consequential impact on the claimant's very
ability to pursue redress and attend to the filing of the claim." Id. at 150. "[A]
judge must consider the collective impact of the circumstances offered as
reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331,
341 (App. Div. 2006).
In Maher v. Cty. of Mercer, 384 N.J. Super. 182, 183 (App. Div. 2006), a
plaintiff was hospitalized after receiving a burn, which then caused septic shock,
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a staph infection, pneumonia, and memory loss. The plaintiff was also placed
in an induced coma during her first hospitalization, because she was not
expected to live, and had repeated admissions to the hospital within the ninety-
day filing period. Id. at 189-90. We found the plaintiff's "circumstances that
led to the delay in filing the notice and the motion were truly extraordinary." Id.
at 189.
In R.L., we affirmed a decision to permit the late filing of a claim where
the plaintiff was a student who had contracted HIV from a sexual relationship
with a teacher. 387 N.J. Super. at 334, 341. The delay in filing was due to the
plaintiff's psychological trauma, which we noted caused him emotional distress,
periods of crying, preoccupation with death, and ultimately a hesitancy to reveal
his HIV status. Id. at 336. We held plaintiff had established extraordinary
circumstances justifying the late filing a notice of claim against a school district
because of the "stigma [of HIV] recognized by our courts[.]" Id. at 341.
Not all medical conditions will meet the extraordinary circumstances
standard to justify filing a late tort claim notice. In D.D. a plaintiff claimed to
suffer from shock, stress, anxiety, fatigue, depression, the inability to perform
as a public speaker, and overall deterioration of her physical and mental health
resulting from defendant's disclosure of her confidential health information to
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third parties in a press release. 213 N.J. at 138-39. However, the Court found
"there [was] no evidence that these complaints were of sufficient immediate
concern to her or were so significant in nature that she sought medical care to
address them." Id. at 150. The Court stated there was a lack of "any evidence
in the record that plaintiff was prevented from acting to pursue her complaint or
that her ability to do so was in any way impeded by her medical or emotional
state" and her conditions were "[f]ar from being 'stymied' or even impaired in
her ability to act." Id. at 151.
The Court held when "engaging in the analysis of extraordinary
circumstances, the court's focus must be directed to the evidence that relates to
plaintiff's circumstances as they were during the ninety-day time period, because
that is the time during which the notice should have been filed." Ibid. (emphasis
added). The Court emphasized the vagueness of plaintiff's certification and
doctor's note describing her symptoms were "not tied to the relevant time
frame," referring to the ninety-day period. Ibid.
In O'Neill v. City of Newark, 304 N.J. Super. 543, 554 (App. Div. 1997),
we held a plaintiff preoccupied with recovery and treatment efforts did not
sufficiently demonstrate a showing of extraordinary circumstances to justify a
delay in filing a timely notice. We noted:
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Plaintiff was able to leave his home, as evidenced by
his trips to various doctors in the days after the
accident, and neither plaintiff nor the psychological
examination provides sufficient proof that he did not
have the mental capacity to contact an attorney. The
obvious inference is, therefore, that plaintiff could have
made a trip to an attorney's office or, at least, called one
on the telephone, especially since his own certification
does not state any facts to the contrary. His failure to
contact an attorney cannot in these circumstances be
said to be the result of extraordinary circumstances.
[Ibid.]
Here, the motion judge recited facts from plaintiff's certification, which
included unrebutted assertions regarding the nature and extent of plaintiff's
injuries. Plaintiff's injuries rendered him unconscious and were life threatening.
Plaintiff certified he suffered "a broken neck, a broken back, a broken shoulder,
broken ribs, and broken wrists. [He] also suffered broken hands, a collapsed
lung, several abrasions and bruises, and [an] infection." The judge noted
plaintiff certified he was confined to a bed "virtually around the clock . . . [and
his] injuries were so severe and life threatening that [he] was not capable of
doing much of anything . . . [and] was told by [his] doctors that additional stress
to [his] body could seriously hinder [his] recovery." As the judge noted,
defendant certified his transfer to rehabilitation was to "relearn[] how to do some
of life's most basic tasks such as walking." Therefore, according to plaintiff's
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certification, he was unable to contact an attorney to file his claim even while in
rehabilitation during the ninety days following the accident.
The judge also relied upon plaintiff's medical records and recited the list
of injuries and surgical procedures plaintiff endured, which we have recounted
above. The judge concluded plaintiff had demonstrated "severe[,] disabling and
debilitating injuries and was either in the hospital or in a rehab[ilatation] facility
for a substantial time following the . . . accident that impacted his ability to file
a notice of tort claim by December 13, 2016." The record amply supports the
motion judge's finding of extraordinary circumstances. Plaintiff was in no
condition to seek out counsel himself during the ninety days after the accident.
Finally, the Township contends it would be prejudiced by the filing of a
late notice. Specifically, it argues it would have made a prompt investigation
and assessment of the roadway if served with a timely notice of claim. The
Township did not support its claim with certifications or other legally competent
evidence.
"[I]t is the public entity that has the burden of coming forward and of
persuasion on the question of [substantial] prejudice." Blank, 318 N.J. Super.
at 114. "The fact of delay alone does not give rise to the assumption of
prejudice; the public entity must present a factual basis for the claim of
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substantial prejudice." Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525,
535 (App. Div. 2010) (citing Kleinke v. City of Ocean City, 147 N.J. Super. 575,
581 (App. Div. 1977). "Substantial prejudice must be shown by 'specificity and
not by general allegation[.]'" Id. at 536 (citing Blank, 318 N.J. Super. at 115).
A contention of a defendant being "totally unaware of the accident" and having
"lost a critical opportunity to engage in timely investigation" is insufficient to
constitute the substantial prejudice requirement under N.J.S.A. 59:8-9. Mendez,
416 N.J. Super. at 535. Substantial prejudice "[g]enerally . . . implies the loss
of witnesses, the loss of evidence, fading memories, and the like." Blank, 318
N.J. Super. at 115.
As the motion judge noted, defendants did not assert a substantial
prejudice in the form of missing evidence or information relating to the accident.
Indeed, a contemporaneous police report was prepared, and would have
provided the Township with a recitation of the conditions on the date of the
accident and identified or led to the identification of potential witnesses in aid
of the Township's defense.
Affirmed.
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