Newberry v. Township of Pemberton

726 A.2d 321, 726 A.2d 261, 319 N.J. Super. 671
CourtNew Jersey Superior Court Appellate Division
DecidedApril 7, 1999
StatusPublished
Cited by10 cases

This text of 726 A.2d 321 (Newberry v. Township of Pemberton) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newberry v. Township of Pemberton, 726 A.2d 321, 726 A.2d 261, 319 N.J. Super. 671 (N.J. Ct. App. 1999).

Opinion

726 A.2d 321 (1999)
319 N.J. Super. 671

Desmond NEWBERRY and Kristina Newberry, Plaintiffs-Appellants,
v.
TOWNSHIP OF PEMBERTON, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued March 23, 1999.
Decided April 7, 1999.

*322 Anne P. Cataline, Marlton, for plaintiffs-appellants (Flynn Austin & Associates, attorneys; Ms. Cataline, on the brief).

John C. Gillespie, Moorestown, for defendant-respondent (Barron & Gillespie, attorneys; Mr. Gillespie, on the brief).

Before Judges PRESSLER, KLEINER and STEINBERG.

The opinion of the court was delivered by PRESSLER, P.J.A.D.

This is a tort claims case in which we are required once again to consider the relationship between N.J.S.A. 59:8-4, which prescribes the required contents of a notice of claim, and N.J.S.A. 59:8-6, which permits public entities to adopt their own tort claim forms. Disagreeing with Wood v. County of Burlington, 302 N.J.Super. 371, 695 A.2d 377 (App.Div.1997), we hold that the notice of claim must be deemed to have been timely filed within the ninety-day period prescribed by N.J.S.A. 59:8-8 if the claimant provides the public entity with notice substantially complying with N.J.S.A. 59:8-4 whether or not the public entity has adopted its own claim form pursuant to N.J.S.A. 59:8-6, provided that the completed adopted form is filed within a reasonable time thereafter.

The issue before us arises out of the joint appeal by plaintiffs Desmond Newberry and Kristina Newberry from separate orders of the Law Division denying their separate motions for leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9.[1] We affirm, not for the reasons relied on by the trial court or urged by defendant Township of Pemberton, but because we are persuaded the plaintiffs' notice failed to substantially comply with N.J.S.A. 59:8-4 and that that failure was unattended by any extraordinary circumstances within the intendment of N.J.S.A. 59:8-9.

The facts are not in substantial dispute. On June 8, 1997, plaintiffs, husband and wife, were injured when their automobile, driven by plaintiff Desmond Newberry and in which plaintiff Kristina Newberry was a passenger, was struck by an automobile operated by Keith D. Lightcap. The accident occurred at the intersection of Hanover Boulevard and West Lakeshore Drive in the Township of Pemberton. Plaintiffs alleged that the accident was caused by Lightcap having run a *323 stop sign, and he was indeed issued a summons on the scene by the investigating officer charging him with failure to stop.

On August 26, 1997, plaintiffs' attorney sent the Township a separate notice of claim for each purportedly complying with N.J.S.A. 59:8-4, which specifies the required contents of the claim. In apparent response to the requirement of subsection c that the claimant provide a statement of the "circumstances of the occurrence or transaction which gave rise to the claim asserted," both claim notices stated that "[c]laimant driving on West Lakeshore Drive when vehicle ran stop sign at Hanover Blvd. striking claimant's vehicle." By letter dated September 2, the Township acknowledged receipt of the notices but advised that the Township had adopted its own tort claim notice form pursuant to N.J.S.A. 59:8-6. The letter further advised of the Township's position that until its adopted form was completed and returned, it would not consider a claim to have been properly filed. The appropriate forms were enclosed for the claimants' convenience. The letter was stamped "received" by plaintiffs' attorney on September 9, just after expiration of the ninety-day period prescribed by N.J.S.A. 59:8-8 for filing the claim notice.

Plaintiffs did not complete and return the Township's adopted form until late December 1997. In their respective and identical responses to the question in the form asking for a specification of the "act or omission alleged to have caused the injury," both plaintiffs asserted that the Township and its employees were negligent "in failing to properly remove and trim the tree branches from covering the stop sign at the intersection where said accident occurred." Insofar as we are able to determine from this record, that was the first indication given by plaintiffs to the Township of the asserted basis of its liability.

In any event, the Township declined to accept the December claim notices on the ground that they were filed beyond the ninety-day limit and declined to accept the prior August notices on the ground that only notices given by way of its adopted notice of claim form were acceptable. Plaintiffs then filed these motions pursuant to N.J.S.A. 59:8-9 in January 1998 seeking leave to file a late notice. The trial judge denied the motions, reasoning that upon their receipt of the Township's adopted claim form, plaintiffs had an additional ninety-day period in which to complete and return them and had failed to do so. Plaintiffs appealed.

In affirming the denial of the late-claim motions, we reject the thesis of the trial court that claimants are accorded an additional but mandatory ninety days in which to respond to a municipality's adopted claim form. We also reject, however, the Township's claim that if a public entity has adopted its own claim form pursuant to N.J.S.A. 59:8-6, the notice of claim cannot be deemed timely filed within the prescribed ninety-day period unless the adopted claim form is used. Thus, while we recognize the right of a public entity to obtain reasonably prompt answers to the set of extensive interrogatories that the adopted form constitutes, we do not agree that the right of a claimant who has complied with N.J.S.A. 59:8-4 to proceed with the action requires completion and return of the adopted form within ninety days after accrual of the cause. In our view, the Legislature, by its adoption of N.J.S.A. 59:8-6, did not intend so impractical, burdensome and hence draconian a result.

N.J.S.A. 59:8-8 requires a claimant to give the public entity notice of the claim within ninety days after accrual of the cause of action. The mandated contents of the notice are prescribed by N.J.S.A. 59:8-4, which is designed to provide the public entity with sufficient information to enable it promptly to evaluate its liability and potential exposure and, if it chooses, to correct a defective condition and also to engage in settlement negotiations prior to the commencement of suit.[2]See, e.g., O'Neill v. City *324 of Newark, 304 N.J.Super. 543, 549, 701 A.2d 717 (App.Div.1997); Lutz v. Township of Gloucester, 153 N.J.Super. 461, 466, 380 A.2d 280 (App.Div.1977); Department of Transp. v. PSC Resources, Inc., 159 N.J.Super. 154, 160, 387 A.2d 393 (Law Div.1978). While a public entity may certainly seek additional information from the claimant pursuant to N.J.S.A. 59:8-6, we nevertheless read N.J.S.A. 59:8-4 as a legislative determination that the information it requires constitutes an adequate, even if minimal, fulfillment of the purposes of notice.

N.J.S.A. 59:8-6, entitled "Claims forms; additional evidence and information; examinations," authorizes a public entity by rule or regulation, to adopt its own claim form. That form, which must also include the information mandated by N.J.S.A.

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Cite This Page — Counsel Stack

Bluebook (online)
726 A.2d 321, 726 A.2d 261, 319 N.J. Super. 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newberry-v-township-of-pemberton-njsuperctappdiv-1999.