Opinion
DOCKET NO. A-2861-12T3
07-28-2014
NATASHA RAMIREZ, Plaintiff-Appellant, v. MATAWAN BOROUGH, Defendant-Respondent.
Natasha Ramirez, appellant pro se (Chiara Zannino, limited guardian, on the brief). Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for respondent (Paul L. LaSalle, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Carroll and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3673-12.
Natasha Ramirez, appellant pro se (Chiara Zannino, limited guardian, on the brief).
Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for respondent (Paul L. LaSalle, of counsel and on the brief). PER CURIAM
Plaintiff Natasha Ramirez, an incapacitated person, through her guardian Chiara Zannino (Zannino), appeals the November 28, 2012 Law Division order denying her motion for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, against defendant Matawan Borough. We reverse.
On March 7, 2008, the Monmouth County Surrogate's Court issued a "Limited Guardian Short Certificate Incapacitated Person," naming Zannino, Severino G. Zannino, and Patricia A. Zannino as the limited guardians of the person appointed to act on behalf of Ramirez with respect to, among other things, "legal matters." Zannino is Ramirez's mother. Severino G. Zannino and Patricia A. Zannino have not joined in this proceeding.
Zannino is self-represented on the appeal, as she was when she filed the motion. Ramirez is significantly disabled from a number of conditions, including cerebral palsy. Zannino is not only Ramirez's mother, but is also her full-time caretaker. On September 3, 2011, Zannino was pushing Ramirez, who was seated in a wheelchair, across a parking lot allegedly owned and maintained by Matawan Borough. The wheelchair "hit a crack in the pavement [causing Ramirez to] f[a]ll out of her wheelchair."
Prior to this event, Ramirez was able to do some limited walking, including to use the bathroom in her home. The injury, Zannino claims, has led to other physical problems, including that Ramirez is now essentially confined permanently to her wheelchair. As a result, the ramp in front of the home that accommodated Ramirez's walker had to be replaced with a lift.
Zannino, who herself suffers from seizures, has been unable to secure legal representation since learning the extent of Ramirez's injuries. Included in Zannino's appendix is a letter dated May 31, 2012, from an attorney who refused the case, recommended that she contact another attorney immediately, and advised that because of time limitations, the TCA might bar the claim.
The Law Division judge's written decision relied upon N.J.S.A. 59:8-9, which states:
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 . . . .
In the judge's opinion, Zannino did not demonstrate extraordinary circumstances because there was no showing that she, as Ramirez's guardian, was herself "incapacitated and incapable of pursuing the claim." The opinion notes that Zannino contacted her local Congressmen and an attorney with regard to her claim, but that she "did not even attempt to pursue her rights until at minimum the calendar year of 2012, which is beyond the 90 day deadline." Accordingly, the judge concluded that no showing of extraordinary circumstances had been made.
The statutory framework governing the "extraordinary circumstances" exception to the ninety-day requirement has been extensively and definitively detailed elsewhere, and need not be repeated here. See, e.g., D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 146-49 (2013). Clearly, the decision to grant permission is one "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." Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010) (internal quotation marks omitted). Decisions denying an application to file a late claim are "examine[d] more carefully . . . to the end that whenever possible cases may be heard on their merits, and any doubts resolved in favor of [permitting] the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (internal quotation marks omitted). In making that determination, all of the circumstances in combination are to be considered. See ibid.
In Unkert v. General Motors Corp., 301 N.J. Super. 583, 586-88 (App. Div.), certif. denied, 152 N.J. 10 (1997), we addressed the issue of whether incapacity tolled the statute of limitations where a guardian had been appointed to represent the interests of an incapacitated person. The accident in that case caused the plaintiff head injuries so severe that he was no longer able to manage his own affairs, requiring his parents to obtain letters of guardianship. Id. at 586-87. When they filed suit, one of the defendants, General Motors Corporation, moved for summary judgment on the basis that the cause of action accrued more than two years prior, and was therefore barred by N.J.S.A. 2A:14-2, the two-year statute of limitations. Unkert, supra, 301 N.J. Super. at 587. A similar argument was made in that case to the one being raised by defendant Matawan Borough on this appeal. See id. at 591. It mirrors the judge's analysis — if the guardian is competent, the standard for deciding an application to proceed out of time should be no different than that applied to any other litigant. He opined that because Zannino was herself not incapacitated, she did not demonstrate any facts constituting "extraordinary circumstances" which would permit the late filing.
In Unkert, the court relied on its interpretation of a former version of N.J.S.A. 2A:14-21, which excepted the application of statutes of limitations for those who were legally incapacitated:
If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A:14-16 to 2A:14-20 of this title or to a right or title of entry under section 2A:14-6 of this title is or shall be, at the time of any such cause of action or right to title accruing, under the age of 21 years, orWe found that the section meant that so long as the incompetency of the claimant persisted, the status of the guardian was incidental, and did not trigger the running of the limitations period. Id. at 588-90. When the incapacity accrues on the same date as the events that caused it, the statute that created the exception was to be applied literally; this, because "[t]he statute d[id] not provide that the appointment of a guardian for an insane person trigger[ed] the running of the limitations period." Id. at 590.
insane, such person may commence such action or make such entry, within such time as limited by said sections, after his coming to or being of full age or of sane mind.
[Unkert, supra, 301 N.J. Super. at 587-88 (quotation marks omitted).]
[S]o long as the injured party remains incompetent, he is unable to assist in the preparation and presentation of his case. We conclude, therefore, that the continued application of section 21 despite the appointment of a guardian does not violate standards of reasonableness or common sense, or lead to an absurd or anomalous result.The TCA does not include a similar statute, but, as we have said, it contains its own exception addressing the potentially harsh outcomes which result from the ninety-day limitation.
[Id. at 592 (citation and quotation marks omitted).]
In this case, Ramirez was incapacitated on the day the injury occurred. Her caretaker, who is also a guardian, suffers from significant medical issues. The injury allegedly resulted in the complete loss of Ramirez's limited mobility, exponentially increasing the physical labor required to care for her. For this reason, Ramirez's home had to be modified to allow her access.
Although we defer to a trial judge's factual findings on these applications, we need not defer to legal rulings if based on a mistaken application of the law. McDade v. Siazon, 208 N.J. 463, 473-74 (2011). We conclude that exceptional circumstances do exist in this unique case, where an incapacitated person was the injured party, the injuries developed into potentially life altering difficulties for her as well as her caretaker, and that person is unable to obtain representation. This decision serves the statute's essential purpose — of allowing claims to be judged on their merit without doing violence to the doctrine of governmental immunity — because these circumstances are truly extraordinary. See D.D., supra, 213 N.J. at 149.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION