SANDRA POTOSI v. UNION CITY BOARD OF EDUCATION (2011)

Defendant, the Union City Board of Education (Board), appeals from a September 16, 2010 Law Division order granting the motion of plaintiff, Sandra Potosi, for permission to file a late notice of tort claim under the Tort Claims Act (the Act).   We agree with the Board's argument that a reasonable investigation by plaintiff would have disclosed that the grammar school at which plaintiff was injured was owned and operated by the Board, which is a separate entity from the City of Union City;  and therefore plaintiff's failure to serve the required notice on the Board in a timely manner did not constitute the extraordinary circumstances required for the relaxation of the ninety-day time frame for the service of notice under the Act. We reverse.

I.

On December 22, 2009, plaintiff slipped and fell in a stairway at the Jefferson Elementary School in Union City. The school nurse completed a written report noting the location of plaintiff's fall, how the accident occurred, the injuries plaintiff claimed and the name of the only witness, plaintiff's six year-old son.   The bottom of the form stated:

Send form to:

Kathy Guareno

Union City Board of Education

“Insurance Department”

On January 22, 2010, plaintiff's attorney sent a notice of tort claim to the Clerk of the City of Union City (City) by certified mail, which notice was received by the City Clerk on January 25, 2010.   Nearly seven months later, on August 16, 2010, the City's third-party claims administrator, INSERVCO Insurance Services Co., Inc., advised plaintiff's attorney that the “City of Union City does not own, maintain and or control the Jefferson Elementary School․  [T]he City of Union City and the Union City Board of Education are two separate and distinct entities.   As such, your claim has been misdirected.”

Two days after receiving the letter from INSERVCO, plaintiff filed the motion that is the subject of this appeal, requesting leave to file a late notice of claim against the Board.   At oral argument, plaintiff maintained that nothing about the name “Board of Education” would have suggested that the Board was a separate entity, distinct from the City. She maintained that her “confusion [,] or ․ reasonable belief that the ․ Board of Education ․ belonged to the City of Union City, was reasonable.”   The Board urged the judge to deny the motion, contending that the Board was a separate entity, and that any reasonable investigation undertaken by plaintiff would have so revealed.

At the conclusion of oral argument, the judge granted plaintiff's motion for leave to file a late notice of claim under the Act. He stated:

In my opinion, the motion should be granted.   I will concede that this is a close case.   However, our case law suggests any ambiguity should be resolved in favor of granting such a motion.

The plaintiff filed a timely notice of claim on the incorrect defendant [,][a]nd upon notification that they had the incorrect defendant, quickly filed this motion.   I don't know why the City of Union City waited from January of 2010 to August 2010 to notify the plaintiff.   However, as soon as the plaintiff's attorney became aware of this, they filed this motion.

The case is very similar to the Blank [v. City of Elizabeth, 162 N.J. 150 (1999) ] case where the plaintiff's negligence and failure to investigate were responsible for the incorrect notice.   The defendant is not responsible for the late notice.   However, as an incident report was also filed by the nurse, it doesn't seem that the defendant would in any way be prejudiced by the fact that [the Board] didn't get notice within 90 days.

So given the fact that the [c]ourt in its discretion may permit the filing of a late notice up to a year of the actual accrual of the claim, I am granting this motion[.]

Defendant filed an appeal as of right.   See N.J.S.A. 59:8–9.   On appeal, the Board maintains that plaintiff's motion for leave to file a late notice of claim approximately eight months after the incident in question should not have been granted because “the identity of the Board of Education as the owner and operator of the public school where plaintiff allegedly fell was readily available and as such, ․ plaintiff failed to demonstrate the requisite extraordinary circumstances mandated by N.J.S.A. 59:8–9 of the Tort Claims Act.” The Board further maintains that the incident report prepared by the nurse does not establish that an investigation of the incident was undertaken by the Board, and does not excuse plaintiff from the responsibility to serve a proper and timely notice of claim.   Finally, the Board argues that “plaintiff has offered no explanation [for] why she was unable to determine within 90 days of the accrual of her cause of action that the school building in which she fell was owned, controlled and maintained by the Union City Board of Education” and therefore, “no extraordinary circumstances exist.”

II.

No claim may be brought against a public entity or a public

employee under the Tort Claims Act, N.J.S.A. 59:1–1 to 14–4, unless the claim is presented in accordance with the procedures set forth in the Act. N.J.S.A. 59:8–3.   Another section of the Act, N.J.S.A. 59:8–8, specifies that a claimant shall be “forever barred from recovering against a public entity or public employee” unless such person provides the public entity or public employee with notice of such claim within ninety days of accrual, “except as otherwise provided in [N.J.S.A.] 59:8–9.”   In turn, N.J.S.A. 59:8–9 authorizes a judge to extend the time for the filing of a notice of claim for an additional nine months, provided the public entity or public employee has not been prejudiced, and the plaintiff demonstrates “sufficient reasons constituting extraordinary circumstances” for the failure to file the notice of claim within the ninety days required by N.J.S.A. 59:8–8.

The “extraordinary circumstances” language contained in N.J.S.A. 59:8–9 was the result of a 1994 amendment that substituted “extraordinary circumstances” for the Act's prior “sufficient reasons” standard;  and such change “ ‘may have signaled the end to a rule of liberality.’ ”  Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (quoting Zois v. N.J. Sports & Expo. Auth., 286 N.J.Super. 670, 675 (App.Div.1996)).

As the Court observed in Lowe, the new language does not define “extraordinary circumstances” any more than the prior language defined “sufficient reasons,” and therefore, the former rule, that “each case [must] be determined on [the] basis of its own facts,” is still the operative rule.   Ibid. “ ‘Generally, we examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits․' ”  Id. at 629 (quoting Feinberg v. N.J. Dep't of Envtl.   Prot., 137 N.J. 126, 135 (1994)).   Indeed, in a close case, courts are obliged to resolve the doubt in favor of a plaintiff seeking permission to file a late claim.   Ibid. A trial judge's decision granting or denying such permission is reviewed for an abuse of discretion, and will be sustained on appeal in the absence of such a showing.  O'Neill v. City of Newark, 304 N.J.Super. 543, 550 (App.Div.1997).

A number of published opinions have identified what does not constitute “exceptional circumstances.”   See Beauchamp v. Amedio, 164 N.J. 111, 121 (2000) (plaintiff not aware of the seriousness of injuries until the ninety days had elapsed);  Leidy v. Cnty. of Ocean, 398 N.J.Super. 449, 460–61 (App.Div.2008) (the incorrect public entity named in the suit made no effort to correct the mistake);  S.P. v. Collier High Sch., 319 N.J.Super. 452, 465–66 (App.Div.1999) (ignorance of filing requirements and youth not sufficient, and while plaintiff had learning disabilities, nothing in the record suggested she was incompetent or psychologically or physically unable to file a timely notice);  Blank v. City of Elizabeth, 318 N.J.Super. 106, 110–11 (App.Div.) (plaintiff did not know that the pipe projecting from the sidewalk belonged to the City), aff'd as mod., 162 N.J. 150 (1999);  O'Neill, supra, 304 N.J.Super. at 552–53 (although plaintiff was hospitalized eight of the ninety days after the accrual of his cause of action, he failed to demonstrate that he was so incapacitated by a gunshot injury to his leg as to prevent him from consulting an attorney and filing the notice of claim, especially where his psychologist's report was limited to a finding that the plaintiff should have received counseling after his injury);  and Zois, supra, 286 N.J.Super. at 674 (attorney's forgetfulness coupled with his secretary's misfiling of paperwork).

The cases finding the existence of “extraordinary circumstances” demonstrate the strong showing a plaintiff must make to satisfy the extraordinary circumstances requirement of N.J.S.A. 59:8–9.   See Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74, 82–83 (2000) (finding that because it is generally believed that any services provided to veterans are provided under the auspices of the federal government, the plaintiff's failure to so realize, and to serve notice upon the state agency that administered the veterans' home, was reasonable);  Lowe, supra, 158 N.J. at 630 (defendants unintentionally obscured their status as public employees);  R.L. v. State–Operated Sch. Dist., 387 N.J.Super. 331, 341 (App.Div.2006) (high school student's delay in filing suit against the teacher who had infected him with HIV was excusable in light of the social stigma of the disease and the plaintiff's preoccupation with thoughts of death);  Maher v. Cnty. of Mercer, 384 N.J.Super. 182, 189–90 (App.Div.2006) (plaintiff's repeated hospitalizations, one of which was so severe that she was in an induced coma and not expected to survive constituted extraordinary circumstances).

Having considered the record in light of the applicable law, we agree with the Board's contention that the circumstances presented here are most akin to those confronting the Supreme Court in Blank, supra, where the plaintiff “tripped over a pipe protruding from the sidewalk abutting residential premises owned by [the] defendants.”  162 N.J. at 151.   Five weeks after the plaintiff's fall, her attorney sent a pre-suit notice to the homeowners, advising them of the plaintiff's intention to institute suit.  Id. at 152.   The homeowners turned the notice over to their homeowners' insurance carrier, Allstate Insurance Company (Allstate), which nearly nine months after the incident in question, finally notified plaintiff's counsel that the offending pipe belonged to the City of Elizabeth, and not to the homeowners.  Ibid.

The Court held that the description of the pipe provided by the plaintiff's counsel at oral argument demonstrated that an “inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants” that were responsible for installing and maintaining the pipe.  Id. at 152–53.   The Court held that the trial court erred when it concluded that these facts justified the late filing of the notice of claim, and affirmed our reversal of the trial judge's order.  Id. at 153.

Here, as in Blank, a reasonable investigation undertaken shortly after plaintiff's fall would have disclosed that the entity responsible for the conditions at the Jefferson Elementary School was the Board, and not the City of Union City. Indeed, as we have noted, plaintiff was provided with the report prepared by the school nurse, which clearly indicated that a copy of the form should be sent to the Insurance Department of the Union City Board of Education.   Thus, plaintiff was on notice from the outset that the school was operated by the Board.

Even without that document, a reasonable investigation would have disclosed that the Board of Education was not operated and controlled by the City, but was a separate entity entitled to sue and be sued in its own name.   In particular, N.J.S.A. 18A:11–1(d) specifies that among the mandatory powers and duties of local boards of education is the authority to “[p]erform all acts and do all things ․ necessary for the lawful and proper conduct, equipment and maintenance of the public schools of the district.”   Another statute, N.J.S.A. 18A:11–2, confers upon a local board of education the power to “[s]ue or be sued [in] its corporate name and likewise submit to [the] arbitration and determination [of] disputes and controversies in the manner provided by law[.]”

Unquestionably, as in Blank, the most minimal investigation would have disclosed that it was the Board, not the City, that operated the school.   Plaintiff's failure to conduct such an investigation does not constitute the “extraordinary circumstances” necessary to enable plaintiff to file a late notice of tort claim.  Blank, supra, 162 N.J. at 153.   Nor does the delay by the City's third-party administrator, INSERVCO, in notifying plaintiff that she had served the notice on the wrong entity in any way constitute extraordinary circumstances.  Leidy, supra, 398 N.J.Super. at 460–61.

We are not persuaded by plaintiff's argument that “[t]he City of Union City, like other municipalities in New Jersey, conducts its functions through a number of Boards and Departments[,] ․ all prefaced with the designation of “Union City.” As examples, plaintiff points to the Union City Zoning Board of Adjustment, the Union City Board of Commissioners, the Union City Department of Public Safety, the Union City Fire Department, the Union City Department of Revenue and Finance, the Union City Department of Public Works and the Union City Department of Public Affairs.   Plaintiff maintains that “[t]he Union City Board of Education has nothing in its name that distinguishes it as an independent, separate entity different from the other Union City Boards and Departments.”   According to plaintiff, “[i]ts very name bespeaks of being part of the City of Union City.” Thus, according to plaintiff, it was reasonable for her to serve the notice of claim upon the Union City Clerk because nothing in the name of the Board of Education provided “any clear display of its [status as a] separate and independent legal entity[.]”

As we have noted, Title 18A makes it abundantly clear that a board of education is a separate entity that must be sued in its own name.   Indeed, a telephone call to the Superintendent's Office or a perusal of the nurse's report, would have demonstrated that it was the Board, and not the City, that operated the school.

Plaintiff's failure to undertake the simple investigation that would have easily revealed the identity of the responsible defendant does not constitute extraordinary circumstances.  Blank, supra, 318 N.J.Super. at 110–11.   The judge's reliance on our decision in Blank was misplaced.   We thus reverse the order granting leave to file a late notice of tort claim against the Board.

Reversed and remanded.

PER CURIAM