Opinion
DOCKET NO. A-6366-11T4
02-25-2013
SONYA A. VALENTIN, Plaintiff-Respondent, v. TOWNSHIP OF PEMBERTON, TOWNSHIP OF PEMBERTON BOARD OF EDUCATION and HELEN FORT MIDDLE SCHOOL, jointly, severally, individually or in the alternative, Defendants-Appellants.
Cherylee O. Melcher argued the cause for appellants (Hill Wallack LLP, attorneys; Jeffrey L. Shanaberger, of counsel; Mr. Shanaberger and Ms. Melcher, on the brief). Louis G. Hasner argued the cause for respondent (Hasner and Hasner, attorneys; Mr. Hasner, of counsel; Mr. Hasner and David L. Hasner, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1980-12.
Cherylee O. Melcher argued the cause for appellants (Hill Wallack LLP, attorneys; Jeffrey L. Shanaberger, of counsel; Mr. Shanaberger and Ms. Melcher, on the brief).
Louis G. Hasner argued the cause for respondent (Hasner and Hasner, attorneys; Mr. Hasner, of counsel; Mr. Hasner and David L. Hasner, on the brief). PER CURIAM
Defendant Pemberton Township Board of Education appeals an order granting plaintiff's motion, pursuant to N.J.S.A. 59:8-9, for leave to file a late tort claim notice. We find no abuse in the trial judge's exercise of discretion and affirm.
Plaintiff was involved in a two-car automobile accident in Mansfield Township on December 22, 2011. Five days later, she retained counsel, who immediately sought and obtained a copy of the police accident report; nothing in that report suggested the direct or indirect involvement of a public entity in the occurrence. Later, in June 2012, counsel received what has been referred to as "the DWI report," learning for the first time that the other driver had been drinking at a Christmas party at her place of employment, the Helen Fort Middle School in Pemberton. A few days later, plaintiff moved for leave to file a late tort claim notice that was granted over defendant's vigorous opposition. Defendant appeals.
We affirm substantially for the reasons set forth by Judge Marc M. Baldwin in his oral opinion. As the judge correctly observed, there was no reason to believe from the nature of the accident or the accident report that a public entity may have played a role in the occurrence. The judge also correctly recognized that, upon receiving information suggesting a potential claim against defendant in light of the other driver's alleged consumption of alcohol at a nearby school, plaintiff's counsel immediately sought leave to file the late notice of claim.
Leave to file a late notice of claim may be granted within one year of the accrual of the action upon a showing of "sufficient reasons constituting extraordinary circumstances" for the plaintiff's failure to file a timely notice of claim, so long as the public entity is not "substantially prejudiced." N.J.S.A. 59:8-9. The matter is entrusted to the trial court's sound discretion. McDade v. Siazon, 208 N.J. 463, 476-77 (2011); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). We are satisfied the circumstances warranted the relief granted by Judge Baldwin.
To hold otherwise would essentially place an obligation of utmost diligence on claimants, forcing them to thoroughly investigate, within N.J.S.A. 59:8-8's ninety-day window, on the off chance that a public entity might have played a role in the occurrence in question, no matter how unlikely or unthinkable that may appear from the occurrence itself. Although the 1994 amendment to N.J.S.A. 59:8-9, as the Court observed in Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)), was intended to "raise the bar for the filing of late notice from a 'fairly permissive' standard to a 'more demanding' one," it does not impose a burden on a claimant to investigate to the maximum degree possible. It is unreasonable to believe the Legislature intended to saddle claimants with the burden of scouring all potential sources of liability when nothing about an occurrence suggested the liability of a public entity.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION