Owens v. Feigin

925 A.2d 106, 394 N.J. Super. 85, 2007 N.J. Super. LEXIS 188
CourtNew Jersey Superior Court Appellate Division
DecidedJune 21, 2007
StatusPublished
Cited by2 cases

This text of 925 A.2d 106 (Owens v. Feigin) 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
Owens v. Feigin, 925 A.2d 106, 394 N.J. Super. 85, 2007 N.J. Super. LEXIS 188 (N.J. Ct. App. 2007).

Opinion

The opinion of the court was delivered by

WEISSBARD, J.AD.

This interlocutory appeal presents the narrow, but important, question of whether the notice requirements of the Tort Claims [87]*87Act (TCA), N.J.S.A. 59:1-1, apply to claims asserted under the New Jersey Constitution and the New Jersey Civil Rights Act of 2004(CRA), N.J.S.A. 10:6-2. We conclude that the TCA does not apply. As a result, the dismissal of plaintiffs’ action must be reversed.

The limited nature of the issue before us makes it unnecessary to set out the details of plaintiffs’ complaint, in which the “facts” underlying the several causes of action were set out in ninety-eight numbered paragraphs. It suffices for our purposes to note that plaintiffs’ claims arose out of the tragic and untimely death of thirteen-year-old Matthew Owens on February 9, 2005. Defendant, Dr. Feigin was the medical examiner in Salem County and performed an autopsy on Matthew’s body the day following his death. He concluded that the manner of death was “natural,” caused by “cardiac arrhythmia” resulting from “congenital malformation of the left anterior descending coronary artery.” Plaintiffs contend, however, that defendant “unilaterally botched the autopsy to help cover for a state trooper who was allegedly trying to avoid liability in connection with the decedent’s death.” In fact, Matthew collapsed while at the home of a friend whose father was the state trooper in question.

On January 22, 2006, slightly less than a year after Matthew’s death, his parents, plaintiffs Brian and Shannon Owens, filed a Notice of Tort Claim (Notice) directed to the “New Jersey Department of Law and Public Safety, Division of State Police,” and the “New Jersey Department of Law and Public Safety, Division of Consumer Affairs, New Jersey State Board of Medical Examiners.” The Notice contained considerable detail, and with respect to defendant Feigin, stated the following:

Furthermore, based upon the conclusions reached by independent experts, information and belief, Brian and Shannon Owens believe that Gerald Feigin, M.D. conducted a deficient autopsy, lacking in detail and specificity; failing to search for all possible causes of Matthew Owens’ death. Upon information and belief, Claimants believe that Dr. Feigin knew or should have known that Matthew Owens did not die of a congenital heart defect but of a separate and identifiable cause which demonstrated that he had suffered an injury at the home of, or while under the supervision of [State Trooper] Bolletino. Upon information and belief, Claim[88]*88ants believe that, for reasons unknown to Claimants at this tune, Dr. Feigin acted to protect those who were potentially responsible for that death by issuing a false opinion and/or disposing of the brain stem, cerebellum and a part of the cerebrum. Whether acting alone or in concert with Trooper Bolletino and/or others, these acts and omissions resulted in preventing Mr. and Mrs. Owens from ascertaining the actual cause of the death of their son. Furthermore, this false and misleading finding has caused them additional distress, as they have been greatly concerned about the health of their three surviving sons and the possibility of them suffering the same fate as Matthew’s, had Matthew actually had a congenital heart defect.

Plaintiffs’ complaint was filed on February 9, 2006. It contained eight counts asserting the following claims: “negligence, recklessness, willful, wanton, intentional and malicious conduct’’ by all defendants except Honda Corporation (count one); defective product liability against Honda (count two); violation of plaintiffs civil rights under the CRA (count three); violation of the Consumer Fraud Act by certain defendants (count four); “emotional distress under circumstances of outrage” against all defendants other than Honda (count five); “suppression and spoliation” of evidence by defendants other than Honda (count six); loss of companionship (count seven); wrongful death (count eight).

Feigin moved to dismiss the complaint based upon plaintiffs having failed to file a Notice against him. That motion was granted by order of May 12, 2006, which also dismissed the wrongful death claims of all plaintiffs except the named administrator ad prosequendum. In granting the motion, the judge rendered a thoughtful and lengthy oral opinion, relying primarily on Velez v. City of Jersey City, 180 N.J. 284, 850 A.2d 1238 (2004). Plaintiffs sought leave to appeal, which we denied on June 28, 2006. However, on September 21, 2006, the Supreme Court granted plaintiffs’ motion for leave to appeal and summarily remanded the matter for us “to consider the appeal on the merits.”

As we noted, plaintiffs’ Notice was filed well beyond the ninety days allowed by the statute. N.J.S.A. 59:8-8. Further, plaintiffs never moved within the time allowed to file a late Notice. N.J.S.A. 59:8-9. Most importantly, the Notice was not directed to or served upon Feigin, the Salem County Medical Examiner’s Office [89]*89or Salem County. Thus, if the TCA notice requirements were applicable, plaintiffs’ complaint was properly dismissed, including the count alleging violation of the CRA.

On appeal, plaintiffs argue that the TCA notice provisions do not apply to claims under our State Constitution or the CRA, while defendant contends that those time strictures do apply. No New Jersey decision has directly addressed this issue.

We begin our analysis by quoting the CRA, in relevant part:

e. Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.
d. An action brought pursuant to this act may be tiled in Superior Court. Upon application of any party, a jury trial shall be directed.
[N.J.S.A 10:6-2.]

Three Supreme Court cases are relevant to our inquiry, the most pertinent of which is Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652, cert. denied sub nom., Univ. of Med. and Dentistry v. Fuchilla, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). There, the Court affirmed our determination that the notice provision of the TCA does not apply to the New Jersey Law Against Discrimination (LAD). The Court’s analysis began with the recognition that there is a clear, strong “public policy of this State[,] [which] is to abolish discrimination in the work place.” Id. at 334, 537 A.2d 652.

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Related

Ingram v. Township of Deptford
911 F. Supp. 2d 289 (D. New Jersey, 2012)
Owens v. Feigin
947 A.2d 653 (Supreme Court of New Jersey, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
925 A.2d 106, 394 N.J. Super. 85, 2007 N.J. Super. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-feigin-njsuperctappdiv-2007.