ESTATE OF JENIFER S. TOWLE VS. HUDSON COUNTY (L-3091-18, WARREN AND HUDSON COUNTIES 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NOT FOR PUBLICATION WITHOUT THE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-1434-18T4
ESTATE OF JENIFER S. TOWLE,
Plaintiff-Appellant,
v.
HUDSON COUNTY and HUDSON
COUNTY DEPARTMENT OF
CORRECTIONS,
Defendants-Respondents,
and
CFG HEALTH SYSTEMS, LLC,
Defendant.
_______________________________
Argued December 4, 2019 - Decided December 17, 2019
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County and Hudson County, Docket
No. L-3091-18.
Daniel G. Marchese argued the cause for appellant
(Daniel G. Marchese, and Kaplan Williams Graffeo &
Stern, LLC, attorneys; Daniel G. Marchese, of counsel;
Kashif Taraq Chand, on the briefs).
Thomas Anthony Morrone argued the cause for
respondents (Chasan Lamparello Mallon & Cappuzzo,
PC, attorneys; Thomas Anthony Morrone, of counsel;
Thomas N. Zuppa, Jr. and Cindy N. Vogelman, on the
briefs).
PER CURIAM
Plaintiff Estate of Jennifer S. Towle appeals from an October 12, 2018
order denying its motion to file a late notice of tort claim against defendant
Hudson County. We affirm.
Towle was confined to the Hudson County Correctional Facility, serving
a six-month sentence on a driving while intoxicated conviction. On July 14,
2017, she was found dead in her cell. On July 17, 2017, Towle's family met
with jail staff, who informed them her body was transported to the state medical
examiner for an autopsy. The State Registrar issued a death certificate on July
18, 2017, which stated the manner of death was "Pending Investigation." The
medical examiner informed Towle's family it would be months before an
autopsy report was issued.
Prior to her death, Towle was diagnosed with depression and placed on
suicide watch while serving her sentence. The autopsy report was completed on
September 19, 2017. Defendant did not mail the report to the family until
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December 15, 2017. The report concluded Towle's death was a suicide. It noted
"an abundant amount of foreign material including Styrofoam, plastic,
condiment packets, milk cartons, drink cartons, paper, a Band-Aid, a plastic bag,
a cookie wrapper, an exam glove, and a nail clipper" were found in Towle's
stomach. Separately, the Hudson County Board of Chosen Freeholders
appointed a medical review panel to examine the circumstances surrounding
Towle's and other inmate deaths. The Freeholder Board report was published
on January 12, 2018.
One of Towle's sons was appointed administrator of her estate on April
16, 2018. The estate retained counsel the following day. Counsel served
defendant with a notice of tort claim on July 12, 2018. On July 16, 2018,
plaintiff filed a motion for leave to file a late notice of tort claim against
defendant pursuant to N.J.S.A. 59:8-9. One of Towle's sons certified that when
he received the autopsy report was the first time he received notice of any
potential wrongdoing involving his mother's death. He asserted defendant
instituted an "information blackout" regarding his mother's death from July 14,
2017 to December 15, 2017, when defendant mailed the family a copy of the
autopsy report.
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The motion judge denied plaintiff's motion. The judge rejected plaintiff's
argument that it had an entire year from the day of Towle's death to move to file
a late notice of tort claim. He concluded once plaintiff was on notice of a cause
of action after it received the autopsy report, it should have moved to file a late
notice by March 2018. The judge also found the Freeholder Board report issued
in January 2018, was another opportunity for plaintiff to file its motion by April
2018. He concluded plaintiff offered no explanation of the extraordinary
circumstances justifying the delay in filing until July 2018.
We review an order granting or denying a motion for leave to file a late
notice of claim under the Tort Claims Act (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
conclusions 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, 208 N.J. at 473-74). In all cases, "a reviewing court should not
substitute its judgment if the trial court's ruling was within 'a range of acceptable
decisions.'" In re Kollman, 210 N.J. 557, 577 (2012) (citing Parish v. Parish,
412 N.J. Super. 39, 73 (App. Div. 2010)).
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"'The [TCA] modifies the doctrine of sovereign immunity' and sets forth
the parameters within which an aggrieved party may recover for the tortious acts
of public entities." O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344-45 (2019)
(quoting Feinberg v. State Dep't of Envtl. Prot., 137 N.J. 126, 133 (1994)).
Under the TCA, "immunity from tort liability is the general rule and liability is
the exception;" it "imposes strict requirements upon litigants seeking to file
claims against public entities." Id. at 345 (citations omitted).
The TCA requires a claimant to serve a notice of claim upon a public
entity "not 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
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).]
Plaintiff argues defendant's "information blackout" "undoubtably
constitutes extraordinary circumstances under N.J.S.A. 59:8-9." It contends the
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Supreme Court's holding in O'Donnell, which allowed a late claim to proceed
because a plaintiff "submit[ted] proofs beyond her attorney's error that, when
considered in their totality, demonstrate extraordinary circumstances," mandates
a reversal here. 236 N.J. at 350. Plaintiff argues the motion judge erroneously
interpreted N.J.S.A. 59:8-9 to require "show[ing] extraordinary circumstances
at all time[s] prior to its filing of the subject motion." Plaintiff asserts that once
a claimant makes the requisite showing to file a late notice, there is no
requirement it move quickly or reasonably soon after ninety days, other than to
file within one-year of the claim accrual.
We do not reach plaintiff's arguments pursuant to N.J.S.A. 59:8-9 because
the issue before us is the statutory interpretation of N.J.S.A. 59:8-8 related to
the accrual of its cause of action. Plaintiff's cause of action accrued when it
received the autopsy report on December 15, 2017; at best, it accrued on January
12, 2018. It failed to explain why it did not file its notice within the prescribed
statutory ninety-day time period of either date. Plaintiff's remaining arguments
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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