NANCY DANCH VS. BOROUGH OF FIELDSBORO (L-0855-18, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 NO. A-5953-17T1
NANCY DANCH,
Plaintiff-Respondent,
v.
BOROUGH OF FIELDSBORO,
Defendant-Appellant,
and
WHITE HILL MANSION
and THE FRIENDS OF
WHITE HILL MANSION,
Defendants.
_____________________________
Submitted September 9, 2019 – Decided September 17, 2019
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-0855-18.
Parker McCay, PA, attorneys for appellant (John C.
Gillespie and Sarah E. Tornetta, on the brief).
Levy Baldante & Finney, PC, attorneys for respondent
(Kyle J. Keller, on the brief).
PER CURIAM
Plaintiff Nancy Danch injured herself on property owned by defendant
Borough of Fieldsboro. On July 26, 2018, Judge John E. Harrington entered an
order, which granted plaintiff's motion to file a late notice under the Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3. Defendant appeals from that order arguing
that the judge abused his discretion. On appeal, defendant maintains that
plaintiff did not substantially comply with the notice requirements under the
TCA and failed to demonstrate extraordinary circumstances. We disagree and
affirm substantially for the reasons given by the judge in his comprehensive
written opinion.
On October 21, 2017, plaintiff tripped near a platform located in
defendant's historic property known as the White Hill Mansion (the property).
Plaintiff had been volunteering that day and interacting with co-defendant, The
Friends of White Hill Mansion (The Friends).1 The Friends worked to restore
and preserve the property.
1
The court previously dismissed plaintiff's complaint against The Friends for
failure to prosecute.
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I.
We begin with defendant's substantial compliance contention. Plaintiff
had ninety days, or by December 21, 2017, to file her claim under the TCA. See
N.J.S.A. 59:8-8(a) (imposing the deadline for filing the notice). The judge
correctly found that plaintiff had substantially complied with N.J.S.A. 59:8 -4,
entitled "Contents of claim," which provides that a claim under the TCA shall
include:
a. The name and post office address of the claimant;
b. The post-office address to which the person
presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the
occurrence or transaction which gave rise to the claim
asserted;
d. A general description of the injury, damage or loss
incurred so far as it may be known at the time of
presentation of the claim;
e. The name or names of the public entity, employee
or employees causing the injury, damage or loss, if
known; and
f. The amount claimed as of the date of presentation
of the claim, including the estimated amount of any
prospective injury, damage, or loss, insofar as it may be
known at the time of the presentation of the claim,
together with the basis of computation of the amount
claimed.
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In his written opinion dated July 24, 2018, the judge made specific
findings to support his conclusion that plaintiff substantially complied with the
notice requirements under the TCA. In part, the judge stated:
[W]ithin nine (9) days of the subject incident,
[President] Loretta Kelly of [The Friends] informed
Patricia Hansell, Clerk of [defendant] via email of an
incident that occurred at [the property] . . . . Ms. Kelly
wrote [to Ms. Hansell] "the wom[an] . . . who fell at
[the property] [is] Nancy Danch[,] [and Ms. Kelly
provided plaintiff's address]. It doesn't look like she's
pursuing anything, not yet." In addition to this, the
email is titled "Pictures," which can reasonably be
inferred that Ms. Kelly previously emailed Ms. Hansell
pictures of either the area where [plaintiff] fell and/or
[plaintiff's] injuries.
Furthermore, by October 22, 2017, the day after
the subject incident, [Ms.] Kelly knew that [p]laintiff
was hurt and hoped that she was "not too badly hurt."
By October 28, 2017, seven (7) days after the subject
incident, [Ms.] Kelly knew that [p]laintiff underwent
jaw surgery for her facial fractures. Presu[mably], this
information relating to [p]laintiff's injuries was
ultimately relayed to Ms. Hansell before [the] email of
October 30, 2017 between Ms. Kelly and Ms. Hansell.
. . . Finally, and most persuasive[ly] . . . as of October
30, 2017, just nine (9) days after the subject incident,
[defendant] was undoubtedly notified of the name and
address of [p]laintiff, the date of the incident, the
location of the incident, the entity causing her injury,
and possibly, [was] provided with photographs
evidencing the incident and/or injuries sustained by
[p]laintiff.
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Thus, there is substantial credible evidence that well within ninety days of when
the accident occurred, defendant had actual knowledge of the incident, including
plaintiff's name and address, the date of the trip and fall, the location of the fall,
photographs of the area of the fall and/or injuries, and a general description of
the injury.
As to the amount of the claim, on December 30, 2017, plaintiff wrote Ms.
Kelly (who had been in communication with Ms. Hansell about the details of
the incident) requesting reimbursement for her medical expenses not paid b y
plaintiff's insurance. But by that time (and within ninety days of the accident),
the full extent of the damages was unknown to plaintiff. That amount was yet
to be calculated.
The notice requirements of the TCA are "not intended as 'a trap for the
unwary.'" Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009)
(quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)). The Supreme Court has
recognized that the TCA notice requirements are "more properly denominated
as a notice of injury or loss." Beauchamp v. Amedio, 164 N.J. 111, 121 (2000).
Therefore, "substantial rather than strict compliance with the notice
requirements of the [TCA] may satisfactorily meet the statute's mandates."
Lebron, 407 N.J. Super. at 215. The doctrine of substantial compliance is an
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alternative to the extraordinary circumstances requirement and can serve to
relieve a claimant, like plaintiff, of the TCA's notice requirements. See D.D. v.
Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 149, 159 (2013). It is an
equitable doctrine that is utilized
"to avoid the harsh consequences that flow from
technically inadequate actions that nonetheless meet a
statute's underlying purpose." Thus, the doctrine
operates "to prevent barring legitimate claims due to
technical defects." In general, it rests on a
demonstration that a party took "a series of steps . . . to
comply with the statute involved," and those steps
achieved the statute's purpose, as for example,
providing notice. Even so, the doctrine can only apply
if there is no prejudice to the other party and if there is
"a reasonable explanation why there was not strict
compliance with the statute."
[Cty. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 21-
22 (2011) (alteration in original) (citations omitted).]
On this record, and recognizing that there exists no prejudice whatsoever to
defendant, we conclude that the judge did not abuse his discretion by invoking
this equitable doctrine. 2
2
Although not determinative, plaintiff's counsel points out in his merits brief
that defendant never provided plaintiff with a claims form, and along those lines,
implies that defendant did not produce such a form because no such form exists
on defendant's website or elsewhere.
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II.
Even if plaintiff failed to comply substantially with the notice
requirements of the TCA, which is not the case, plaintiff demonstrated
extraordinary circumstances warranting the late filing of the claims notice under
N.J.S.A. 59:8-9.
The law governing the filing of a late notice of claim under the TCA is
settled. N.J.S.A. 59:8-9, entitled "Notice of late claim," controls such filings
and provides:
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.
This statute "commits the authority to grant a plaintiff's motion for leave to file
late notice to the sound discretion of the trial court, and [its decision] will be
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sustained on appeal in the absence of a showing of an abuse thereof." D.D., 213
N.J. at 147 (internal quotation marks and citation omitted).
"Courts faced with applications for leave to file a late notice of claim,
therefore, must proceed with their evaluation mindful of the Legislature's
direction that the proofs demonstrate circumstances that are not merely
sufficient, but that they instead be extraordinary." Id. at 149. "[I]n 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[.]" Id. at 151. Although the statute does not define the
term extraordinary circumstances, "the meaning to be ascribed to that term has
been developed on a case-by-case basis." Rogers v. Cape May Cty. Office of
Pub. Def., 208 N.J. 414, 428 (2011).
In enacting N.J.S.A. 59:8-9, "the Legislature recognized that discretionary
judicial relief from the ninety-day [TCA] requirement may be necessary to
ameliorate the consequence of a late filing in appropriate cases." McDade v.
Siazon, 208 N.J. 463, 476 (2011). "Although the ordinary 'abuse of discretion'
standard defies precise definition, it arises when a decision is 'made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis,'" Moraes v. Wesler, 439 N.J. Super. 375, 378 (App.
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Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)),
or when "the discretionary act was not premised upon consideration of all
relevant factors, was based upon consideration of irrelevant or inappropriate
factors, or amounts to a clear error in judgment." Ibid. (quoting Masone v.
Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
When a claimant has filed a motion for leave to file a late notice, as is
pertinent to our case, there must "be a showing of 'sufficient reasons constituting
extraordinary circumstances' for the claimant's failure to timely file, and second,
that the public entity not be 'substantially prejudiced' thereby." McDade, 208
N.J. at 477 (quoting N.J.S.A. 59:8-9). Here, there is no credible showing of
substantial prejudice. We focus, instead, on the sufficiency of the reasons for
the purported late filing. Of course, we do so fully understanding that there was
no need to file the motion because plaintiff substantially complied with the
notice provision of the TCA.
During the ninety days, and thereafter, plaintiff believed her verbal and
written communications with Ms. Kelly constituted filing her TCA notice. From
the day after the accident to the end of the ninety days, Ms. Kelly interacted with
plaintiff not only as the president of The Friends, but also as someone who
operated out of defendant's municipal building. Indeed, at the relevant
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timeframe, the CEO of The Friends was defendant's mayor. And as Ms. Hansell
admits, defendant had actual knowledge of the details of the trip and fall on the
property.
After the ninety days, Ms. Kelly continued responding as if an authorized
representative of defendant. On January 1, 2018, Ms. Kelly responded to
plaintiff's December 30, 2017 email inquiry asking if defendant would
reimburse her for the outstanding medical expenses. Ms. Kelly's response – "I'll
have to check. How much are your expenses?" – reinforced the fact that
defendant had been informed about plaintiff's claim. On January 6, 2018,
plaintiff replied to Ms. Kelly:
I am waiting for my oral surgeon's bill as this surgery
was covered under my medical [insurance] and they
sent it to my insurance company with [an] incorrect
diagnos[is] code. The other expenses (minus surgery)
to date amount to approximately $230. I will let you
know as soon as I receive the surgery bill.
After a follow-up email from plaintiff on February 5, 2018, Ms. Kelly, for the
first time, informed plaintiff to call defendant's clerk. Ms. Kelly, who had
communicated with the clerk about the claim, explained "the last time I talked
to [the clerk] she said you would have to file a lawsuit [and] since you waited
so long to see a doctor[,] they probably won't cover any medical expenses." That
same day, plaintiff replied:
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The fall happened on 10/21 and I went to the medical
express the next morning, 10/22, and was sent to
Capital Health ER for a CT scan and x-rays of my
injuries. I then followed up with my primary care,
orthopedic, and oral surgeons immediately that next
week and had [the] necessary tests completed. I had my
jaw surgery Thursday, 10/26, four days after [the] fall.
In her affidavit, plaintiff certified that she called Ms. Hansell immediately and
that, at that time, Ms. Hansell "never advised me that [defendant] did not have
notice of my claim." On March 26, 2018, for the first time, defendant notified
plaintiff that her claim was untimely under the TCA. On that day, plaintiff
contacted counsel, who then made the motion four weeks later leading to the
order under review.
We are convinced, as was Judge Harrington, that – even if there was no
substantial compliance – plaintiff demonstrated sufficient reasons for the late
filing of her notice under the TCA. In the judge's written opinion, the judge
made multiple additional findings along those lines, which the record credibly
supports, stating:
[T]he May 23, 2018 Certification of Ms. Hansell
provides evidence that both Ms. Hansell and
[defendant] [were] on notice of [p]laintiff's claim prior
to the expiration of the ninety (90) days required by [the
TCA]. . . . In addition to this, [d]efendant attached [to
its papers] a "New Jersey Business Gateway Search"
for [The Friends] [which] reveals that Ms. Kelly . . .
utilizes [defendant's] building . . . as her own
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"agent/service" address. Hence, despite arguing that
Ms. Kelly is not an "employee, agent . . . or otherwise
authorized to act on behalf of [defendant]," it is clear
she is authorized to use [defendant's] Municipal
Building as her own address for purposes of service and
for use by [The Friends].
....
Plaintiff honestly believed that she was, all along, filing
a claim through her various communications with Ms.
Kelly of [The Friends and defendant]. This is supported
by the fact that [defendant's] clerk . . . admits to having
actual knowledge of the incident involving the
[p]laintiff, as well as [p]laintiff's personal information
within nine (9) days of the incident, and the fact [that]
Ms. Kelly's office (and [The Friends]) utilizes the
mailing address of [defendant's] Municipal Building[.]
Affirmed.
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