NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2366-18T1
GEOFFREY JONES and
VALERIE CARSWELL (H/W),
Plaintiffs-Respondents,
v.
CITY OF JERSEY CITY and
HUDSON COUNTY,
Defendants,
and
JERSEY CITY MUNICIPAL
UTILITIES AUTHORITY,
Defendant-Appellant.
__________________________
Submitted October 15, 2019 – Decided February 18, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2033-18.
Methfessel & Werbel, attorneys for appellant (William
Scott Bloom and Leslie Koch, on the briefs).
Lowenthal & Abrams, PC, attorneys for respondent
(Regina M. Vogelsong and Anthony R. Gruner, on the
brief).
PER CURIAM
In this slip and fall personal injury matter, defendant Jersey City
Municipal Utilities Authority appeals from the Law Division's January 11, 2019
order denying its motion to dismiss plaintiffs Geoffrey Jones's and Valerie
Carswell’s complaint based upon plaintiffs' failure to comply with the Tort
Claims Act, (TCA), N.J.S.A. 59:1-1 to 12-3. The motion judge denied
defendant's application after he found plaintiffs made a reasonable attempt to
serve defendant with the required tort claims notice. On appeal, defendant
argues that the motion judge applied the wrong standard to its motion, plaintiffs
failed to comply with the TCA, and failed to file a motion to file a late claim.
We reverse because plaintiffs never served defendant with a notice of tort claim
or filed a motion to file a late claim as required by N.J.S.A. 59:8-8 and N.J.S.A.
59:8-9.
The facts derived from the motion record are summarized as follows. On
October 13, 2016, at approximately 11:00 p.m., Jones fell after he stepped onto
a street in Jersey City. According to Jones, his foot landed in a hole next to a
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2
storm water grate. The fall caused Jones to sustain various injuries and an
aggravation of a pre-existing condition.
On November 1, 2016, plaintiffs served a notice of tort claim on Jersey
City, Hudson County, and the State of New Jersey. Hudson County responded
that based upon its investigation it found that it bore no liability for Jones's
injuries because it did "not own maintain or control" the area where Jones fell.
A similar letter was sent by the State. After asking for additional documentation
and conducting its own investigation, on July 3, 2017, Jersey City wrote that it
"had no prior notice of any problems or defects with the location of loss,
therefore, [Jersey City] . . . respectfully den[ied plaintiffs'] claim for damages."
Plaintiffs filed a complaint against Jersey City, Hudson County, and the
State on May 23, 2018. In its answer dated June 26, 2018, Jersey City denied it
was negligent, and in its Rule 4:5-1(b)(2) certification stated "the additional
party who should be joined in this action is [defendant], a separate an[d]
autonomous agency." In its September 28, 2018 answers to plaintiffs'
interrogatories, Jersey City stated, "[u]pon information and belief, [defendant],
a separate and autonomous entity from . . . Jersey City may have made repairs
to the hole or broken pavement next to the [storm] water/sewer grate . . .
[p]laintiff alleges he fell."
A-2366-18T1
3
Despite Jersey City's disclosures of defendant's potential liability,
plaintiffs never served defendant with a tort claims notice, nor did they file a
motion seeking to file a late notice of claim. Instead, plaintiffs filed an amended
complaint on October 4, 2018, adding defendant as another responsible party.
Plaintiffs alleged, as they did in their original complaint against the other public
entities, that defendant caused Jones's injuries by failing "to keep and maintain
the public street in question in a reasonable condition," and by defendant
"[i]mproperly plac[ing] a storm water/sewer grate in a portion of the street where
there is pedestrian traffic."
Defendant filed its motion to dismiss plaintiffs' complaint based upon
plaintiffs' failure to comply with the TCA. In response, plaintiffs filed a brief
in which they argued they had "substantially complied" with the TCA's notice
requirements, claiming that once defendant was identified in Jersey City's
answers to interrogatories, plaintiffs "immediately amended their [c]omplaint."
Citing to D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J.
130, 159 (2013), plaintiffs argued they were in substantial compliance with the
TCA's notice requirements. Relying on the Court's opinion in Feinberg v. New
Jersey Department of Environmental Protection, 137 N.J. 126, 135-36 (1994),
they also claimed defendant was "an entity under the Jersey City umbrella," and
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4
therefore its notice to that public entity satisfied plaintiffs' obligation to give
notice to defendant under the TCA.
In his oral decision, on January 11, 2019, the motion judge relied on
plaintiffs' "reasonable good faith attempt" to give defendant timely notice under
the TCA. He stated, "no one would reasonably think that [plaintiffs] would have
to put [defendant] on notice for this accident unless and until [plaintiffs] had
some indication that [defendant] was doing work in the area." The judge noted
that his decision did not depend on whether plaintiffs became aware of
defendant's potential liability through Jersey City's answer or its response to
plaintiffs' interrogatories.1 The judge stated that plaintiffs learned of defendant's
involvement only a year and a half after Jersey City was given proper notice
under the TCA.
The motion judge made note of the importance of hearing cases on the
merits and on the assumption that "any doubts which may exist should be
resolved in favor of the application or the tort claim application." The judge
relied on Feinberg and found that the facts were similar to this case. He further
found no importance as to whether Jersey City had authority over defendant.
1
The judge admitted he did not read Jersey City's Rule 4:5-1(b)(2) certification
prior to oral argument. During oral argument, the judge reviewed the statement;
but stated that it did not change his decision.
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5
The motion judge concluded that plaintiffs made a "reasonable good faith
attempt to comply with the notice requirements," and, on that basis, denied
defendant's motion. This appeal followed.
Our review of an order denying a motion to dismiss is de novo, "applying
the same standard as the trial court." See Cona v. Twp. of Wash., 456 N.J.
Super. 197, 214 (App. Div. 2018); see also Gomes v. Cty. of Monmouth, 444
N.J. Super. 479, 486 (App. Div. 2016). Before granting the motion and
dismissing a civil complaint with prejudice, a court "must 'search[] the
complaint in depth and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure statement of claim,
opportunity being given to amend if necessary.'" Gomes, 444 N.J. Super. at 486
(alteration in original) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989)). "Nevertheless, a purely legal question of whether a
defendant is insulated from liability because of an immunity or some other
statutory provision ideally should be resolved, if possible, at an early stage of
the litigation." Ibid.; see also Rivera v. Gerner, 89 N.J. 526, 536 (1982) (noting
that resolving issues involving the TCA through the pretrial process "is to be
encouraged").
A-2366-18T1
6
We focus our review on the crux of the matter, namely whether plaintiffs
were entitled to amend their complaint to name defendant without first serving
defendant with a notice of tort claim or filing a motion to serve a late notice.
We conclude they were not permitted to do so.
We begin our analysis with an overview of the TCA that governs tort
claims against public entities and public employees. Rogers v. Cape May Cty.
Office of the Pub. Def., 208 N.J. 414, 420 (2011). "'Public entity' includes the
State, and any county, municipality, district, public authority, public agency,
and any other political subdivision or public body in the State." N.J.S.A. 59:1-3.
The TCA "is the statutory mechanism through which our Legislature effected a
waiver of sovereign immunity." D.D., 213 N.J. at 133. "The guiding principle
of the [TCA] is that 'immunity from tort liability is the general rule and liability
is the exception . . . .'" Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488 (2005)
(quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).
The TCA "establishes the procedures by which claims may be brought."
Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). One of the procedures it
imposes on a party seeking to bring a tort claim is a requirement to file a tort
claim notice. D.D., 213 N.J. at 134; see also N.J.S.A. 59:8-1 to -11. The notice
has a number of required components including: (1) when it has to be served,
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N.J.S.A. 59:8-8; (2) what information it must contain, N.J.S.A. 59:8-4; and (3)
where it has to be served, N.J.S.A. 59:8-7.
The TCA requires that the notice must be served within ninety days of the
claim's accrual. N.J.S.A. 59:8-8. "[T]he first task [therefore] is always to
determine when the claim accrued." Beauchamp, 164 N.J. at 118. Generally,
"a claim accrues on the date on which the underlying tortious act occurred." Ben
Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 134 (2017) (citing Beauchamp,
164 N.J. at 117). However, "where the victim either is unaware that he has been
injured or, although aware of an injury, does not know that a third party is
responsible," the date of accrual is tolled to until when the victim should have
reasonably known of the injury or the responsible party. Beauchamp, 164 N.J.
at 117-18.
"Whether the discovery rule applies depends on 'whether the facts
presented would alert a reasonable person, exercising ordinary diligence, that he
or she was injured due to the fault of another.'" Ben Elazar, 230 N.J. at 134
(quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). Therefore, the
discovery rule only applies where the victim is "reasonably unaware that a third
party may also be responsible." Id. at 135. "Once the accrual date is"
determined, "public-policy reasons" require the injured party to comply with the
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TCA's "short period for service of a notice of claim on the responsible public
entity." Ibid.
Where the injured party does not comply with the TCA's requirement
within the ninety-day period, the TCA identifies the procedure through which
the court can grant permission to file a late notice of tort claim, but only under
"extraordinary circumstances." N.J.S.A. 59:8-9. Specifically, the TCA grants
the court "discretion" to permit the filing of a late tort claim notice "at any time
within one year after the accrual of his [or her] claim provided that the public
entity or the public employee has not been substantially prejudiced thereby."
Ibid. However, that permission is contingent upon the claimant filing a motion
with the court seeking
permission to file a late notice of claim[, which is] . . .
supported by affidavits based upon personal knowledge
of the affiant showing sufficient reasons constituting
extraordinary circumstances for his [or her] 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.
[Ibid. (emphasis added).]
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9
The requirement to file a motion seeking permission to file a late tort claim
notice applies whether the date of accrual is established by the date of the injury
or through application of the discovery rule. See McDade v. Siazon, 208 N.J.
463, 475 (2011). In either event, a plaintiff must file the motion and establish
"extraordinary circumstances" that excuse the delay and that the public entity
would not be "substantially prejudiced." Lowe v. Zarghami, 158 N.J. 606, 624-
25 (1999); see also O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 345-46 (2019).
Whether extraordinary circumstances exist, must be determined on a case-by-
case basis. O'Donnell, 236 N.J. at 346-47, 352 (holding that when "the totality
of facts and circumstances are extraordinary," a claimant should be able to
"pursue his or her claims against the public entity"). Allowing an exception
based on no or limited proof would contravene the legislature's intent to heighten
the level of proof needed to justify excusing a late filing. See D.D. 213 N.J. at
149-52.
As the Court has observed, "the [TCA] is 'strictly construed to permit
lawsuits only where specifically delineated,'" McDade, 208 N.J. at 474 (quoting
Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App.
Div. 2000)) and its "notice requirements are an important component of the
statutory scheme," ibid. For that reason, "the filing of a[n amended] complaint
A-2366-18T1
10
would not be a substitute for the notice required by statute . . . ." Guzman v.
Perth Amboy, 214 N.J. Super. 167, 171-72 (App. Div. 1986).
Here, plaintiffs never complied with any of the TCA's requirements as to
its claim against defendant. There was no motion filed, no certifications setting
forth any facts about plaintiffs' efforts to identify defendant as a responsible
entity, or why no notice was served after Jersey City identified defendant as a
responsible party in its answer to the complaint in June 2018. Under these
circumstances, the motion judge should have granted defendant's motion to
dismiss.
Plaintiffs' reliance on its service of notice to Jersey City is misguided.
Defendant, a municipal utility corporation, was created under the "Municipal
and County Utilities Authorities Law," N.J.S.A. 40:14B-1 to -78, and is a
municipal corporation and public entity separate and distinct from Jersey City.
See N.J.S.A. 40:14B-4(a); see also McDade, 208 N.J. at 469 (stating that a
township municipal utility authority is a "separate and distinct entit[y]" from the
township). Plaintiffs' service of their tort claim notice upon Jersey City, the
wrong public entity, does "not absolve plaintiffs of the obligation to promptly
identify the [proper public entity] and serve a timely notice of claim." McDade,
208 N.J. at 479. Moreover, the TCA "imposes no obligation on [a served public
A-2366-18T1
11
entity] to forward the notice of claim to the [responsible non-party] or to notify"
plaintiffs of the non-party's involvement. O'Donnell, 236 N.J. at 350.
Plaintiffs' reliance on the Court's holding in Feinberg is equally
unsupported by the difference in the relationship between the entities involved
in that case, the New Jersey Department of Environmental Protection, the Office
of the Attorney General, and the New Jersey Water Supply Authority, as
compared to the distinct public entities in this case. See Feinberg, 137 N.J. at
128, 135.
Similarly, plaintiffs' argument and the motion judge's reliance upon the
discovery rule and plaintiffs reasonably being unaware of defendant's
involvement until Jersey City answered interrogatories is also misplaced. In
Ben Elazar, the Court considered the application of the discovery rule and the
TCA to an accident in which no "circumstances . . . appear[ed] to implicate a
third-party public-entity defendant." Ben Alazar, 230 N.J. at 127. Prior to
holding that the discovery rule applied to those circumstances, the Court
discussed its earlier holdings in Beauchamp and McDade. The Ben Alazar Court
noted that in Beauchamp, the Court "adher[ed] . . . to essential considerations in
stating that '[t]he date of accrual of her cause of action was the date of the
accident in which she knew she was injured and that a public entity was
A-2366-18T1
12
responsible.'" Ben Alazar, 230 N.J. at 138 (quoting Beauchamp, 164 N.J. at
119). It also explained that once a plaintiff knows he or she is injured and that
"a public entity was responsible," the cause of action accrued, and if the plaintiff
failed to timely identify the responsible public entity, the onus was on the
plaintiff to move for leave to file a late tort claim and establish extraordinary
circumstances. See id. at 137-39.
The Ben Alazar Court also stated while discussing McDade and
distinguishing the facts in Ben Alazar from that case and Beauchamp that,
[a]lthough 'not immediately aware of the true identity
of the [cause of the fall],' the plaintiff was responsible
under the discovery rule to exercise reasonable
diligence to determine the correct public entity to sue.
The plaintiff in McDade, like the plaintiff in
Beauchamp knew immediately that public entities were
involved, but did not look diligently enough to identify
all public entities. The McDade opinion notes that the
plaintiff had failed to conduct an inspection of [the
cause of the fall], investigate its owner, or search the
public record.
[Id. at 138-39 (citations omitted).]
Here, plaintiffs never established through any evidence that they took any
action, diligent or otherwise, after Jones's fall to establish which public entities
were responsible at any time prior to receiving Jersey City's answers to
interrogatories. By not filing the required motion and not submitting any
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13
evidence of their efforts, if any, the motion judge could not determine whether
plaintiff established extraordinary circumstances warranting the service of a late
notice of tort claim.
Reversed and remanded for entry of an order granting defendant's motion
and dismissing plaintiffs' complaint against defendant with prejudice. We do
not retain jurisdiction.
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