Opinion
DOCKET NO. A-4180-14T2
04-25-2016
MATTHEW WISSEMANN, Administrator ad prosequendum for the ESTATE OF VERONICA WISSEMANN, Plaintiff-Respondent, v. JULIAN A. RENGIFO, GLADYS R. KEIZER, TOWNSHIP OF WOODBRIDGE, COUNTY OF MIDDLESEX and MIDDLESEX COUNTY TRANSPORTATION MANAGEMENT ASSOCIATION, Defendants-Respondents, and STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
Gregory J. Sullivan, Deputy Attorney General, argued the cause for appellant State of New Jersey Department of Transportation (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Sullivan, on the brief). Patricia M. Love argued the cause for respondent Matthew Wissemann (Hendricks & Hendricks, attorneys; George F. Hendricks and Ms. Love, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1613-15. Gregory J. Sullivan, Deputy Attorney General, argued the cause for appellant State of New Jersey Department of Transportation (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Sullivan, on the brief). Patricia M. Love argued the cause for respondent Matthew Wissemann (Hendricks & Hendricks, attorneys; George F. Hendricks and Ms. Love, on the brief). PER CURIAM
Defendant State of New Jersey Department of Transportation appeals from an April 24, 2015 order granting the motion of plaintiff Matthew Wissemann, Administrator ad prosequendum for the Estate of Veronica Wissemann, for leave to file a late notice of tort claim. Because plaintiff's proofs failed to meet the statutory standard requiring that there be extraordinary circumstances to excuse the late filing, we reverse.
This case arises out of the tragic death of Veronica Wissemann, who perished in a head-on collision on State Route 27 in Woodbridge on November 26, 2014. The Estate retained counsel, who on January 7, 2015 requested a copy of the accident investigation report from the Woodbridge Township Police Department. The police department advised the matter was under investigation by the Middlesex County Prosecutor's Office and was not yet available. The report was not released until March 3, 2015. Counsel served tort claims notices on the State, the County and the City of Woodbridge the following day. The State received its notice on March 9, 2015, six days after release of the police investigation report and 103 days after the accident.
Two weeks later, plaintiff filed a motion for leave to file a late notice of tort claim. He argued it was not until the report was released and counsel saw pictures of the accident scene showing substantial snow and slush on the roadway that he had a reasonable basis for filing a claim against the public entities. Prior to that time, he did not possess any information indicating that snow and ice conditions on the road were so severe as to have been a likely contributing factor in the accident.
The public entity defendants argued that there were no extraordinary circumstances to justify the late filing. Included in the Township's opposition was a newspaper article from the day of the accident reporting on the snow and resulting road conditions. The Township relied on the article to demonstrate the ready availability of information about road conditions on the day of the accident well before release of the report.
The judge granted the motion, stating he was "satisfied that a criminal investigation by the Prosecutor's Office and a criminal investigation by other governmental entities is sufficient to constitute extraordinary circumstances in this case." The judge added that he "fail[ed] to see how an 8 day lapse between the mandatory stricture of the Tort Claims Act and the filing of the notice profoundly prejudices anybody." This appeal as of right followed. See R. 2:2-3(a)(3).
N.J.S.A. 59:8-8 requires that claims for damages against public entities must be filed within ninety days of their accrual. See Beauchamp v. Amedio, 164 N.J. 111, 116 (2000) (discussing the procedural requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3). Although the period for filing is short, any harshness is alleviated by N.J.S.A. 59:8-9, which allows for the filing of late claims. Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011). That statute provides in pertinent part:
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 . . . .
[N. J.S.A. 59:8-9.]
We review a decision granting or denying a motion for leave to file a notice of late claim for abuse of discretion. McDade v. Siazon, 208 N.J. 463, 476-77 (2011). We undertake that review, however, mindful that
[t]he Legislature's grant of authority to trial courts to permit a late notice in the exercise of their discretion does not equate with a grant of authority to override the statute's declaration of purpose or to substitute a lesser standard of proofs for the extraordinary circumstances demanded by the 1994 amendment to the statute itself.The Supreme Court has commanded that "[t]rial courts, in exercising their statutory authority, and appellate courts, in reviewing those decisions, must ensure that their decisions are faithful to the overall legislative framework in order that the statute's essential purposes be preserved and not eroded through excessive or inappropriate exceptions." Id. at 148-49.
[D .D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 148 (2013).]
Applying the Court's command here requires a reversal of the trial court's decision to grant the late claim motion. The trial court accepted plaintiff's claim that he was without a good faith basis to file a tort claims notice against the State until the police department released its investigation report of the accident, which did not occur until after the ninety-day notice period had expired. The judge did not explain, however, what information he found plaintiff garnered from the report, and why it was not available to him within the ninety-day notice period.
The only information from the report on which plaintiff relies are the attached photographs of the scene after the accident. Plaintiff claims those photos "depict[] the weather and severe road conditions at the time of the accident." He argues because "the driver of the other vehicle had been under investigation and a potential criminal defendant, there was no way to obtain information regarding the state of the roadway at the time of the accident in order to ascertain whether there was a possibility for a potential Tort Claim action." He asserts that makes this case nearly identical to Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010), a case in which the late provision of a police report was held to present extraordinary circumstances.
We disagree. The plaintiffs in Mendez were seriously injured in a car accident in snowy conditions when Mendez's car struck a snow removal truck owned by the South Jersey Transportation Authority and parked on the shoulder in the Atlantic City Expressway/Brigantine Connector Tunnel. Id. at 529. Plaintiffs' injuries left them without memory of the accident and there were no witnesses. Id. at 530. Plaintiffs filed timely tort claims notices against the Authority, Atlantic City, Atlantic County, and the State of New Jersey based on the Authority's ownership of the vehicle and its and the other entities' ownership or responsibility for the road and the tunnel. Id. at 529.
The accident report, released shortly after the accident, revealed the existence of cameras in the tunnel, which captured plaintiffs' car and a municipal ambulance entering the tunnel seconds before the crash. Id. at 530. Although the report included a narrative of the video footage, it did not suggest the ambulance played any part in the accident. Notwithstanding, plaintiffs diligently pursued obtaining the videotape, which was not provided to them until after the notice period had run. Id. at 534.
When plaintiffs finally were able to review the tape, they discovered that the ambulance, which had been traveling ahead and to the left of their car, moved to the right directly in front of them as it approached the snow plows parked on the left shoulder. Ibid. Theorizing that the ambulance's sudden move into plaintiffs' lane could have caused plaintiffs to take evasive action resulting in the accident, plaintiffs' counsel contended the videotape provided the first basis for a potential claim against Brigantine, the owner of the ambulance. Ibid. We agreed and affirmed the trial court's finding that extraordinary circumstances excused the late filing.
Mendez provides no support for plaintiff's position in this case. Unlike the camera footage in Mendez, which was available only from the defendant Authority and depicted something nowhere else revealed despite diligent efforts, the photos contained in the investigation report here reveal only that there was snow and slush on the roadway at the time of the accident.
Notwithstanding plaintiff's claims, there is no proof that such information was not readily available elsewhere within the ninety-day notice period, and likely from several different sources. Newspaper reports of the storm and of the accident attest to the availability of alternate sources for the information. There is no dispute that the accident occurred on a snowy day. Indeed, we can take judicial notice of the fact that the Governor had declared a state of emergency on the morning of the accident. See Executive Order No. 167, 47 N.J.R. 3(c) (Jan. 5, 2015), http://nj.gov/infobank/circular/eocc167.pdf.
As the Supreme Court has recently reiterated, "[t]he Legislature has commanded that relief be granted only in circumstances that are extraordinary." D.D., supra, 213 N.J. at 158. Plaintiff's failure to detail any efforts he made to ascertain the condition of the roadway during the ninety-day notice period, and the absence of any proof that the photographs contained in the belatedly provided investigation report depicted information not elsewhere available, precluded the grant of his motion to file a late notice of tort claim. Ibid. ("The Legislature's waiver of sovereign immunity remains a limited one and we are not free to expand that waiver beyond its statutorily-established boundaries."). Because plaintiff did not demonstrate extraordinary circumstances for the late filing, the alleged lack of prejudice to the State caused by the delay is irrelevant. See Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146-47 (1988). Like the trial court, we do not consider the State's alternate theory that the weather immunity provided by N.J.S.A. 59:4-7 would preclude liability against the State for this accident in any event. See Pico v. State, 116 N.J. 55, 61-62 (1989); Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super. 265, 266 (Law Div. 1994).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION