SHEILA BRYANT v. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0726-20
SHEILA BRYANT and LARRY
BRYANT, wife and husband,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
June 16, 2022
v. APPELLATE DIVISION
COUNTY OF CUMBERLAND,
Defendant-Respondent.
_____________________________
Submitted June 7, 2022 – Decided June 16, 2022
Before Judges Fisher, Currier, and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0084-20.
Jarve Kaplan Granato Starr, LLC, attorneys for
appellants (Mati Jarve and Katherine M. Jarve, on the
briefs).
The Garty Law Firm, LLC, attorneys for respondent
(M. Lou Garty, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In a matter of first impression, we hold that service of a Tort Claims Act1
notice of claim on a county is sufficient when sent to the county clerk rather
than the board of county commissioners.
Plaintiff Sheila Bryant and her husband filed this personal injury action in
February 2020, alleging Cumberland County's negligence caused her to slip and
fall in the county courthouse parking lot nearly two years earlier. Rather than
answer the complaint, the County moved to dismiss or, in the alternative, for
summary judgment, asserting that plaintiffs failed to comply with the Tort
Claims Act's notice requirements. The County did not claim some infirmity in
the notice's form or content; it argued instead that the notice was not properly
served because plaintiffs sent it to the County Clerk instead of the Clerk of the
Board of County Commissioners.2
In her written opinion, the trial judge correctly focused on those parts of
the Tort Claims Act that govern the manner of service of a notice of claim.
N.J.S.A. 59:8-7 is specific about how to serve the State, calling for its
submission to either the Attorney General or "the department or agency involved
1
N.J.S.A. 59:1-1 to 12-3.
2
The entities once known as boards of chosen freeholders are now known as
boards of county commissioners. See L. 2020, c. 67 (effective Jan. 1, 2021).
A-0726-20
2
in the alleged wrongful act or omission." But, as for "local public entit[ies],"
defined as including all public bodies except the State, N.J.S.A. 59:8-2, the Act
requires only that the notice of claim be filed with "that entity," N.J.S.A. 59:8-
7, or "the entity," N.J.S.A. 59:8-10, without further elaboration. And so, there is
nothing in the Tort Claims Act that would identify for a claimant the particular
county office or officer to be served with the required notice of claim; in fact,
the Act does not even suggest there is just one county office or officer that fits
the bill.
In her thorough opinion, the trial judge considered the various roles
performed by county clerks and boards of county commissioners. The judge
concluded that because it is the governing body and would "oversee litigation
against the County," it was Cumberland's Board of County Commissioners and
not its County Clerk that had to be served, even though the judge also recognized
the County Clerk "is an entity within the County that acts on behalf of the
County for some functions[.]"
There is some logic in the trial judge's approach and in her conclusion that
the Board of County Commissioners is the office within the County that would
bear the responsibility for overseeing the litigation, and we would agree that the
Board of County Commissioners was an appropriate entity upon which to serve
A-0726-20
3
a notice of claim. But we also cannot overlook that a litigant's failure to draw
the same conclusion – without any guidance from the Tort Claims Act – would
lead to the barring of a meritorious claim.
We find nothing in the broad phrasing of N.J.S.A. 59:8-7 and -10 to
suggest, as the County argues, that it is only the clerk of the board of county
commissioners that a plaintiff must serve with a notice of claim. If that is what
the Act intended, then it could have said so. We also find nothing in these
provisions to foreclose the possibility that the Legislature may have intended
that more than one county office or officer could represent the county for
purposes of receiving a notice of claim. This is suggested as well by Rule 4:4-
4(a)(8), which allows for service of process on public bodies other than the State
by personally serving the summons and complaint on "the presiding officer or
on the clerk or secretary thereof." Our courts have not previously considered or
construed Rule 4:4-4(a)(8), but its plain language plausibly supports the notion
that there is, in fact, more than one person who may accept service of a summons
and complaint for a county and that one of those persons would be "the clerk
. . . thereof," a phrase that may reasonably be understood as connoting the county
clerk. We have not been provided with a principled reason for concluding that
the Tort Claims Act's requirements for service of a notice of claim on a county
A-0726-20
4
are more exacting than Rule 4:4-4's requirements, which have constitutional
underpinnings, for serving a summons and complaint on a county.
In short, the Tort Claims Act failed to identify who it is a claimant must
serve with a notice of claim when suing a county. And, to be sure, it is a matter
best cleared up by the Legislature. See Plastic Surgery Ctr., P.A. v. Malouf
Chevrolet-Cadillac, Inc., 241 N.J. 112, 113 (2020); E.C. v. Inglima-Donaldson,
470 N.J. Super. 41, 56 (App. Div. 2021). Until then, however, we believe the
question should be answered in a way that promotes fairness to all parties. In
the final analysis, the notice provisions of the Tort Claims Act were not intended
"as 'a trap for the unwary.'" H.C. Equities, L.P. v. County of Union, 247 N.J.
366, 383 (2021) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div.
1991)). When plaintiffs mailed their notice of claim, all they had for guidance
were the Act's provisions that the notice had to be sent to the "entity" they
intended to sue.3 See N.J.S.A. 59:8-7 and -10. Because there is a certain logic to
serving a county by serving its county clerk – just as service of a notice on a
municipality would logically be forwarded to the municipal clerk – we conclude
3
In her written opinion, the judge referred to the county website as a source of
information about where to serve a notice of claim. But, even assuming a county
may decide on its own where a notice of claim must be sent, even now, after the
trial court's decision in this matter, Cumberland County's website gives no
direction to the public as to where it believes a notice of claim should be sent.
A-0726-20
5
that plaintiffs' service of the notice of claim on Cumberland's County Clerk was
sufficient.4 In addition, it is difficult to imagine how a county could be
prejudiced since, on receipt of a notice of claim, the county clerk would
undoubtedly understand that it should be forwarded to the official the particular
county charged with opening a file, contacting county counsel, and starting an
investigation.5
The order under review is reversed and the matter remanded for further
proceedings. We do not retain jurisdiction.
4
We neither consider nor opine on what would be valid service of a notice of
claim on a county that has adopted the "county executive plan" prescribed in
N.J.S.A. 40:41A-31 to -44.
5
Although unnecessary to our decision, we observe that the record does not
permit an assumption that the notice plaintiffs sent to the County Clerk did not
inform the County of the claim. The County offered only the hearsay
certification of its attorney about whether county officers were aware of the
claim. This type of hearsay does not move the needle one way or the other on a
motion for summary judgment. See Higgins v. Thurber, 413 N.J. Super. 1, 21
n.19 (App. Div. 2010), aff’d, 205 N.J. 227 (2011).
A-0726-20
6