O'Neill v. City of Newark

701 A.2d 717, 304 N.J. Super. 543, 1997 N.J. Super. LEXIS 402
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 14, 1997
StatusPublished
Cited by46 cases

This text of 701 A.2d 717 (O'Neill v. City of Newark) 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
O'Neill v. City of Newark, 701 A.2d 717, 304 N.J. Super. 543, 1997 N.J. Super. LEXIS 402 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

On June 18, 1996, plaintiff, Daniel J. O’Neill, filed a Notice of Motion in the Law Division for Leave to File Late Notices of Claim under the Tort Claims Act against the defendants, City of Newark (“Newark”), New Jersey Transit (“Transit”), and the University of Medicine and Dentistry of New Jersey (“UMDNJ”).1 The motion was opposed and on August 12,1996, the Law Division judge entered an order denying plaintiffs motion. The motion [546]*546was decided without oral argument, even though plaintiff had requested it. On August 27,1996, plaintiff moved for reconsideration. On September 27, 1996, oral argument was held and thereafter the judge denied plaintiffs motion. Plaintiff appeals.

Plaintiff was a Transit Police Officer. On August 3, 1995 at around 11 p.m., he and another officer were investigating several thefts in Newark when they observed a door slightly ajar at the side entrance to an auto body shop located at 335 Orange Street, the site of prior thefts. The locks on the door had been cut off. They entered the building and observed two vehicles and several car parts. Hearing noises coming from the upper level, they went up the stairs and entered a room where they observed additional vehicle parts.

The officers believed that they had discovered a “chop shop” and were going to report it when they saw another door and decided to investigate. Entering the room, they saw more auto parts. Suddenly, a barking dog ran at them. They retreated, and as they ran down the staircase with their weapons drawn the staircase collapsed. As a result, plaintiff was hit in the back of his right thigh by a round discharged from one of the weapons. Plaintiff was unable to walk, so the other officer carried him to their vehicle.

Numerous Transit officers, Newark police officers, EMS personnel, and investigators from the Essex County Prosecutor’s Office converged upon the scene. During the investigation at the scene, Marcel Saucedo was identified as the owner of the property and the dog. News accounts of the accident appeared in the August 4 and 5,1995 editions of The Star-Ledger.

Plaintiff was brought to the trauma unit of UMDNJ, where he was admitted for a gun shot wound of his right thigh. He was diagnosed with a right common peroneal nerve injury. He lost neurological function in his leg as a result of the nerve damage. The only treatment he received at UMDNJ was the cleaning and dressing of his wound, and he was discharged within hours. The bullet remained lodged against his pelvis.

[547]*547Plaintiffs follow-up appointment at UMDNJ was canceled by the Transit’s rehabilitation nurse overseeing his treatment, who scheduled another appointment with a different doctor. As his specialty was proctology, this doctor instructed plaintiff to have Transit schedule an appointment with a neurologist.

On August 22, 1995, nineteen days after the accident, plaintiff was examined by a neurologist who noted there was no response or motor activity in plaintiff’s right leg. The neurologist concluded there was evidence of a right distal sciatic nerve injury and recommended that a follow-up study be conducted in six to eight weeks. On September 12, 1995, the neurologist noted that there was no change in plaintiffs condition and that exploratory surgery and an MRI scan of the right thigh might be needed. On September 19, 1995, an instructor in clinical neurological surgery at Columbia University School of Medicine also recommended surgery.

Plaintiff next had a consultation with a neurosurgeon in New Jersey who agreed that there was damage to the common peroneal nerve and that the recommended nerve repair be performed by microsurgery. On October 9,1995, plaintiff underwent surgery at Morristown Memorial Hospital. The surgeon discovered that the peroneal nerve was divided high in the thigh just beneath the lower margins of the gluteus. The damage was repaired and plaintiff was released from the hospital on October 13, 1995. He was fitted with a leg brace to wear 24 hours a day. Additionally, he was not allowed to shower and for three months was required to use a portable commode.

On December 26, 1995, plaintiff had a follow-up appointment with his surgeon who noted no change in his neurological condition and that none could be expected so soon after the surgery. The surgeon recommended that the brace be adjusted periodically to increase the leg’s mobility and that physical therapy be started to build up plaintiffs quadricep muscle. He was confined to his home until January 1996, with the exception of visits for medical treatment.

[548]*548On January 15,1996, plaintiff contacted a law firm seeking legal-representation. On January 17,1996, plaintiff was interviewed by the firm. However, the 90-day statutory period to file a Notice of Claim against the public entities under the Tort Claims Act had already expired.

During the first week of February 1996, plaintiff returned to a “light duty” desk job at New Jersey Transit. A psychological examination of plaintiff took place on February 12, 1996. The consulting psychologist diagnosed him as suffering from Post-Traumatic Stress Disorder and Adjustment Disorder. The psychologist concluded that plaintiff should have undergone critical incident debriefing protocol and follow-up psychological interventions immediately after the accident.

On January 22,1996, the law firm forwarded record requests to Morristown Memorial Hospital and the two neurologists. On January 25, 1996, a request for medical records and authorization was forwarded to UMDNJ. Between January 31, 1996 and April 8, 1996 medical records and reports were received. Plaintiff’s attorneys became aware of a potential claim against UMDNJ and New Jersey Transit after receiving the medical records.

The law firm mailed a request to Transit on February 27, 1996, requesting photographs and records of the investigation. A follow-up request was forwarded on April 4, 1996. That same day a request was sent to Transit’s Medical Director in an attempt to obtain plaintiffs medical records. On April 19, 1996, plaintiffs counsel requested assistance from the Attorney General to compel Transit to release the information, but on April 30, 1996, the Attorney General declined assistance.

On April 4, 1996, the law firm requested a report from the consulting psychologist. The psychologist, on April 12, 1996, requested an advanced fee for the service. This was forwarded, and the report was received on May 3,1996.

On February 8, 1996, the law firm had written to Saucedo, the alleged owner of the building. The correspondence was returned [549]*549on February 20, 1996 marked “undeliverable as addressed.” Counsel conducted a Motor Vehicle search on Saucedo as well as a Secretary of State search. In a phone interview with Saucedo on April 8, 1996, counsel discovered that Newark was the owner of the building. This information was confirmed in a Dun & Bradstreet report. As noted, on June 18,1996, the Notice of Motion to file Late Notices of Claim was filed.

I

In 1972 the Legislature passed the Tort Claims Act (“Act”), N.J.S.A. 59:1-1 to 12-3, which created a statutory scheme for claims to be brought against public entities. No such action may be brought unless it is in accord with the procedure established under the Act. N.J.S.A. 59:8-3.

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Cite This Page — Counsel Stack

Bluebook (online)
701 A.2d 717, 304 N.J. Super. 543, 1997 N.J. Super. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneill-v-city-of-newark-njsuperctappdiv-1997.