Opinion
DOCKET NO. A-3024-10T1 DOCKET NO. A-3619-10T1
07-25-2012
ESTATE OF FREDERICK M. JOHNSON, JR., DECEASED, by DOROTHY JOHNSON, ADMINISTRATRIX AD PROSEQUENDUM, Plaintiff-Respondent, v. CITY OF NEWARK and COUNTY OF ESSEX, Defendants-Appellants.
Anna P. Pereira, Corporation Counsel, City of Newark, attorney for appellant City of Newark in Docket No. A-3024-10 (Gary S. Lipshutz, Assistant Corporation Counsel, on the brief). James R. Paganelli, Essex County Counsel, attorney for appellant County of Essex in Docket No. A-3619-10 (Joseph Catenaro, Jr., Assistant County Counsel, on the brief). William J. Ewing, P.C., attorneys for respondent (Anthony T. Losardo, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
On Appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9864-10.
Anna P. Pereira, Corporation Counsel, City of Newark, attorney for appellant City of Newark in Docket No. A-3024-10 (Gary S. Lipshutz, Assistant Corporation Counsel, on the brief).
James R. Paganelli, Essex County Counsel, attorney for appellant County of Essex in Docket No. A-3619-10 (Joseph Catenaro, Jr., Assistant County Counsel, on the brief).
William J. Ewing, P.C., attorneys for respondent (Anthony T. Losardo, on the briefs). PER CURIAM
The City of Newark (Newark) and the County of Essex (the County) appeal from orders that granted plaintiff Dorothy Johnson leave to file late notices of tort claim against them. See N.J.S.A. 59:8-9. We have consolidated these back-to-back appeals for the purpose of this opinion and affirm.
Because plaintiff and her decedent share the same surname, we refer to them by their first names for clarity and intend no disrespect.
Frederick M. Johnson, Jr. (Frederick) was arrested by officers of the Newark Police Department (Newark PD) on May 7, 2010 for outstanding traffic warrants issued by East Orange. He remained incarcerated and was transferred to the Essex County Correctional Facility (ECCF) on May 9, 2010. On the following day, Frederick complained of abdominal pain and missed dialysis treatments and was admitted to East Orange General Hospital (EOGH).
Frederick's mother, plaintiff Dorothy Johnson, attempted to file a missing person's report with Newark PD on May 10. She was informed that her son had been arrested and was being held at ECCF in lieu of $250 bail. She was not told what department arrested him or what the charges were. Dorothy posted bail for her son and received a New Jersey Bail Recognizance form, which stated that Frederick's offense occurred in East Orange.
Meanwhile, Frederick received dialysis treatments at the hospital and was discharged on May 12, 2010. He was returned to ECCF, where he was released on the same day. Dorothy spoke briefly to her son after his release but did not question him about what had occurred. Frederick died the next day from septic shock.
Under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, a party has ninety days from the accrual of his/her cause of action to file a claim against a public entity. N.J.S.A. 59:8-8(a). As an exception to this rule, N.J.S.A. 59:8-9, 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.
[(Emphasis Added).]
Approximately three weeks after her son's death, Dorothy retained counsel to investigate her son's death and to determine what parties, if any, may have been responsible. On November 18, 2012, Dorothy filed a motion seeking leave to file a late notice of claim against Newark and the County. Romain D. Walker, Esq., submitted a certification in support of Dorothy's motion for leave to file a late notice. He acknowledged that the ninety-day period for the filing of claims against the public entities expired on August 11, 2010. However, in his certification, he provided facts and documents, which we summarize here, to support the argument that extraordinary circumstances existed to permit a late notice of claim.
The New Jersey Bail Recognizance Form that Dorothy gave to counsel stated that Frederick was arraigned in East Orange Municipal Court on May 7, 2010 on a traffic offense. Bail was set at $250.
On June 3, 2010, counsel submitted a demand for discovery upon the court administrator, the municipal prosecutor and the police records officer of the East Orange Municipal Court, using the caption for the complaint listed in the Uniform Jail Commitment Form. The demand sought the production of police reports and other documents. Walker certified that no information was provided in response, despite repeated calls to the municipal court asking for information about Frederick's arrest.
On August 10, 2010, counsel sent a demand for production of documents to the Essex County Counsel (County Counsel). Among the documents requested were:
1. All documents relating to the arrest/incarceration of Frederick Johnson, Jr., D.O.B. 3/29/1958, at the Essex County Correctional Facility which occurred, upon information and belief, between May 7, 2010 and May 12, 2010[.]
2. All arrest records and police records as they relate to Frederick Johnson, Jr. occurring on the date of his arrest, on or around May 7, 2010. Such documents should include the names of the arresting officers, date and time of arrest, and the circumstances of defendant's arrest.
3. All medical records as they relate to Frederick Johnson, Jr. dated on or after May 7, 2010.
County Counsel sent a response on September 22, 2010, consisting of documents concerning Frederick's incarceration at ECCF. The documents did not identify the location where Frederick was arrested. After further repeated inquiries and requests, counsel received commitment documents from County Counsel that revealed Frederick had been arrested by Newark PD on or about May 7, 2010. These documents were not received until October 22, 2010. As a result, Dorothy's counsel learned then, for the first time, that Frederick had been in the custody of Newark PD from May 7 to May 9, 2010.
Records from ECCF show that during Frederick's initial intake medical screening on May 9, 2010, the following was noted: "ESRD [End Stage Renal Disease], REQUIRES DIALYSIS, DIALYSIS SCHEDULE T-TH-SAT, LAST DIALYSED 5/4/10[.]" The records for the same date indicate that Frederick complained of chest pain and difficulty breathing. As reflected in the records, the practitioner's plan was to send Frederick to EOGH for dialysis and for him to be admitted to the infirmary upon his return from the hospital.
Records received from EOGH on October 21, 2010, revealed that Frederick was admitted on May 10, 2010, and received dialysis treatments that day and on May 11. He was discharged to ECCF on May 12, 2010. The discharge summary states that he was admitted via the emergency room with a history of two missed dialysis treatments.
Counsel submitted the certificate of death and the pertinent records from EOGH, ECCF and Newark to Jose Gomez-Rivera, M.D., for review. Dr. Gomez-Rivera noted the cause of death, septic shock, and stated that when a three-times a week dialysis patient misses dialysis for one week, the failure to get such treatment will, within reasonable medical probability, result in septic shock and death.
In opposing the motion, Newark stated that Dorothy had failed to demonstrate the "extraordinary circumstances" necessary to file a late claim. Defendant argued that the absence of any evidence from Dorothy as to what she knew, when she knew it and what she did or failed to do, was fatal to her motion.
In her reply, Dorothy submitted an affidavit in which she stated that, after a week passed without hearing from her son, she became worried and contacted local hospitals to determine if he had been admitted. When this proved unsuccessful, she went to Newark PD on May 10, 2010 to file a missing person's report because her son resided in Newark. She was told that her son was incarcerated at ECCF and that bail was set at $250 but she was not told what police department arrested him or what the charge was.
Dorothy stated she went to ECCF to post bail at approximately 1:00 p.m. on May 11. She informed the officer at the front desk that her son required dialysis and asked if he was receiving treatment. The officer assured her that there was a facility on the premises and that Frederick would receive treatment. He did not inform her that her son was hospitalized at EOGH. At approximately 4:00 p.m., she was told that Frederick would not be released until 11:00 p.m., so she arranged for her niece to pick him up.
Dorothy spoke to her son briefly after he returned home at approximately 3:00 a.m. on May 12. Because he sounded tired and weak, she did not question him about what had occurred. She received a call from Frederick's friend at about 11:50 p.m. on May 12, telling her that her son was very ill. Dorothy told her to take him to the hospital. He died at the hospital on the morning of May 13. A certificate of death was issued on June 4, 2010, listing the cause of death as septic shock.
Dorothy stated that she had no information as to what happened to her son in the days preceding his death. The only information available to her at the time was the bail recognizance form that listed East Orange as the location where the offense occurred and that bail had been set by an East Orange municipal court judge. She had also been assured - falsely, as it turned out - that her son would receive dialysis treatment while at ECCF. She hired an attorney to investigate the facts and stated that she had learned only recently that her son had been held in custody by Newark PD and that he did not receive dialysis treatment as scheduled.
In their appeals, both Newark and the County argue that the motion judge abused his discretion in granting plaintiff leave to file a late notice of claim. In addition, Newark argues that plaintiff's motion was procedurally defective because the initial motion relied upon inadmissible hearsay and plaintiff did not provide any factual support based upon personal knowledge until her reply brief. After reviewing the record and arguments in light of the applicable legal principles, we are satisfied that these arguments lack merit.
Counsel's certification does, in fact, set forth facts regarding his efforts based upon personal knowledge and also relies upon attached documents that included business records of ECCF. We are satisfied this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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The notice provisions of the TCA were not intended as "a trap for the unwary." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)). N.J.S.A. 59:8-9 authorizes a court to exercise its discretion to permit a claimant to file a notice of claim within one year after the claim has accrued if the public entity "has not been substantially prejudiced" by the delay and if the claimant can show "sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim" on a timely basis. See Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 455 (App. Div. 2008); see also R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006). The grant or denial of a motion for leave to file a late notice is a matter "left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." McDade v. Siazon, 208 N.J. 463, 476-77 (2011) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988) (internal quotation marks omitted)).
Because the statute does not define "extraordinary circumstances," a court must consider the totality of the circumstances in deciding whether to permit a late filing. Lowe, supra, 158 N.J. at 629; see also Lamb, supra, 111 N.J. at 149. Among the factors relevant to such a determination are: whether "a plaintiff had been thwarted in his or her diligent efforts to determine the responsible party or [whether] the tortfeasor's identity had been actively obscured by the original defendants[,]" Leidy, supra, 398 N.J. Super. at 457; whether a plaintiff promptly contacted and retained counsel, see Lowe, supra, 158 N.J. at 626-30; Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 405 (App. Div. 1996), overruled on other grounds by Beauchamp v. Amedio, 164 N.J. 111, 120 (2000); whether a plaintiff, through no fault of his or her own, is unable to obtain relevant discovery, see Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533-35 (App. Div. 2010); and the nature of a plaintiff's claim, see Leidy, supra, 398 N.J. Super. at 460. A court's review of the circumstances should be informed by the principle that, "'wherever possible[,] cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Lowe, supra, 158 N.J. at 629 (quoting Feinberg v. State, D.E.P., 137 N.J. 126, 135 (1994)).
Our review of the circumstances here shows ample support for the motion judge's conclusion that plaintiff showed the existence of extraordinary circumstances.
Plaintiff promptly retained counsel to investigate the facts of her son's death and determine the identity of responsible parties, approximately three weeks after her son's death. See Lowe, 158 N.J. at 626-30. At the time, the information she had was that he had been arrested and arraigned on charges in East Orange and the assurance of the officer at ECCF that he would receive dialysis treatment while incarcerated at ECCF. The diligence of counsel's efforts is at once apparent by the fact that, before the death certificate was even issued on June 4, a demand for discovery was submitted to East Orange. See Leidy, supra, 398 N.J. Super. at 457. East Orange did not respond to this demand until November 19, 2010, when the Office of the City Clerk wrote counsel a letter, stating,
As per the Police Department, the search for records involving [Frederick] revealed there was no such incident resulting in him being detained or incarcerated by the East Orange Police Department.
Thus, there was no response to counsel's demand for discovery until more than two months after the ninety-day period expired.
When it was apparent his efforts to obtain information from East Orange were unavailing, counsel served a demand for documents with the County on August 10, 2010, a date still within the ninety-day period. County Counsel sent a letter with responsive documents on September 22.
The documents provided included the medical records from ECCF. It was only upon receipt and review of these documents that plaintiff and her counsel became aware that the assurance Dorothy received that Frederick would receive necessary medical treatment at ECCF was false. The records, received approximately six weeks after the ninety-day period expired, revealed the medical information Frederick provided at the time of his intake at ECCF on Sunday, May 9. He advised that: he had End Stage Renal Disease; he required dialysis three times a week on Tuesday, Thursday and Saturday; and he had missed the Thursday and Saturday treatments as a result of his arrest. At intake, he complained of chest pain and difficulty breathing. The record referred to him as a "Priority Patient[.]"
Still, as of the September 22 response, none of the documents provided revealed that Frederick had been arrested by the Newark PD. Despite counsel's continuing efforts, he did not learn of Newark PD's involvement until October 22, 2010, when County Counsel sent him decedent's Uniform Jail Commitment Form.
In short, the limited information available to plaintiff immediately after her son's death strongly indicated that the public entity that had potential liability was East Orange. Both plaintiff and her attorney acted promptly and diligently to determine if this was the case. This information proved to be a red herring which, combined with East Orange's failure to respond, substantially impeded plaintiff's efforts to determine the identity of the actual public entities with potential liability. We are satisfied that the facts demonstrate that both plaintiff and counsel were "diligent and made reasonable efforts" to investigate the potential claims, see Leidy, supra, 398 N.J. Super. at 457, and further, that the delay in identifying Newark and the County as potential wrongful parties was through no fault of theirs. See Mendez, supra, 416 N.J. Super. at 534-35.
The motion to seek leave for filing a late notice claim was filed on November 18, 2010. This was less than two weeks after receiving a physician's assessment that there was potential negligence on the party of the public entities; less than one month after receiving the information that implicated Newark; and approximately two months after receiving information that showed the assurance given to Dorothy that Frederick would receive dialysis treatments while at ECCF was false. We note that the nature of the claim here, the failure to provide necessary medical treatment resulting in death, involves a complex issue of causation, which favors a less stringent approach to enforcing the ninety-day period. See Leidy, supra, 398 N.J. Super. at 460. Under the circumstances, we are satisfied that plaintiff did not unreasonably delay the filing of her motion after learning the facts necessary to a determination of the public entities' potential liability.
Significantly, neither defendant has identified any prejudice suffered by the delay in plaintiff's notice to them of a potential claim. The focus in determining whether such prejudice exists is "on the entity's interest in expediting investigation with the hope of reaching nonjudicial settlement and its interest in protecting its access to current information about the alleged incident." McDade, supra, 208 N.J. at 478 (quoting Lamb, supra, 111 N.J. at 152) (internal quotation marks omitted). The records regarding Frederick's treatment would appear to be within defendants' control. Therefore, the existence of prejudice is not apparent and cannot be assumed based solely upon the delay in providing notice. Leidy, supra, 398 N.J. Super. at 463.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION