Discovery Rule Applies to Notice Provisions of the NJ Tort Claims Act.

As a prerequisite to proceeding with a tort claim against a public entity, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of the cause of action.  Under “extraordinary circumstances” accompanied by a showing that the public entity had not been substantially prejudiced, a plaintiff may file a late notice of claim within one year of the accrual of the claim.  Failure to file in accordance with these statutory provisions bars a plaintiff from bringing a tort claim against the public entity.

The New Jersey Supreme Court in Elazar v. Macrietta Cleaners, Inc. held that the common law discovery rule applies to determine the date on which a claim against a public entity begins to accrue.  Plaintiffs owned an electronics repair store adjacent to a dry cleaning store.  Township owned property behind the dry cleaning store.  In the late 1980s, plaintiffs noticed a chemical odor emanating from the dry cleaning store, and began having medical problems in the early 1990s.  In 1998, the dry cleaning store arranged for the removal of underground storage tanks.  In 2010, the dry cleaning store retained an environmental consultant who sampled air quality.  In 2011, plaintiffs received two letters from the consultant, which advised that soil located on the dry cleaning store and the Townships’ properties was going to be excavated due to evidence of soil contamination emanating from the underground storage tanks.  In January 2012, plaintiffs were advised by their doctors that their medical conditions were connected to the air contaminant reported by the consultant.  In March, 2012 plaintiffs retained an attorney who filed an OPRA request with the New Jersey Department of Environmental Protection that resulted in the production of documents in July 2012 indicating that the leaking underground storage tanks had been on Township property.  In September 2012, plaintiffs filed suit against the dry cleaning store, and a notice of claim against the Township.  One year later, plaintiffs amended their complaint to join the Township.

The Township moved for summary judgment, arguing that plaintiffs should have been aware in 2011 (i.e. when they received the letters from the environmental consultant), that they had a potential claim against the Township.  Accordingly, the Township argued that plaintiffs’ claims were barred since they failed to file a notice of claim within 90 days of receipt of those letters.  In opposition, the plaintiffs argued that their claim was timely because it was filed within ninety days of July 2012, the date on which they received documents from the NJDEP that revealed the tanks were located on Township property.  The Supreme Court agreed with the plaintiffs, and  held that the common law discovery rule applied to the notice of claim procedure in the Tort Claims Act.  The standard was whether plaintiffs knew or should have known of sufficient facts to support their claim against the Township.

In the context of multi-defendant cases, it is possible for a plaintiff to be reasonably unaware that a third party may also be responsible when it is clear that another party is responsible.  Therefore, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals the other party’s responsibility.

Thanks to Michael Noblett for his contribution to this post.

 

 

 

NJ Tort Claims Act Defeats Contractor’s Catastrophic Injury Claim

Plaintiff William Muha became paralyzed from the waist down when he fell off a ladder after accepting a job from Fast Signs to install signs on a column at Kean University.  Muha filed a worker’s compensation claim against FastSigns and a notice of claim against the University.  The worker’s compensation Judge dismissed plaintiff’s petition holding that plaintiff was an independent contractor and not an employee.  The case was arbitrated resulting in a $6 million award with 50% of the comparative fault attributed to plaintiff.  The defendants filed a trial de novo and moved for summary judgment on plaintiff’s claims.  The Trial Court granted defendants’ motions.  Plaintiff appealed.  On February 8, 2017, the Appellate Division affirmed summary judgment in favor of defendants.   The facts in Muha v. Kean University are not complex:

The first day of the sign installation was uneventful.  Although plaintiff requested a lift, the parties eventually settled on a 40’ foot ladder provided by one of the defendants.  Plaintiff’s father held the ladder for some of the installation.

On Day Two, the ladder plaintiff used on the day before was not available.  Plaintiff did not tell the University that he needed a ladder.  Instead, plaintiff decided to borrow his father’s ladder.  But this time his father did not help plaintiff. As Muha was cleaning the column to install the sign, the ladder “kicked out” and began leaning toward the left.  Plaintiff fell, hitting the ground and became paralyzed from the waist down.

The Court held that plaintiff failed to establish a prima facie case against the University under the Tort Claims Act (“TCA”). See N.J.S.A. § 59:4-2.  The Act provides that a public entity can be liable for an injury caused by a condition of its property if plaintiff establishes a “dangerous condition” existed on the property that proximately caused the injury and that the injury was “foreseeable.”  In this case, plaintiff was using his father’s ladder –not one provided by the University.  Therefore, the defendant did not create a dangerous condition as required by the statute.  Also, the Court noted that Plaintiff did not argue that the building or the column, where the signs were to be hung, was a dangerous condition.  Finally, plaintiff’s decision not to advise the University of the issue with the ladder and to solve the problem himself by using his father’s ladder, eliminated plaintiff’s ability to prove actual or constructive notice.

The Court also provided a helpful analysis of whether the plaintiff was an independent contractor or an employee.  “FastSigns did not retain control of the manner or means of the work that was to be performed.  FastSigns was not present at the location on the day of the accident, did not provide plaintiff with the tools needed to install the vinyl signs other than the actual signs themselves, and … plaintiff [and not FastSigns had] direct communication with Kean [the client].”  The Court also determined that plaintiff was not “incompetent,” in other words he was experienced with sign installation and skilled using a ladder at least three times per week. The Court also did not find that the sign installation was an inherently dangerous job or “nuisance per se.”  Therefore, the Court concluded plaintiff was an independent contractor.

The Court’s practical approach is notable: “[R]outine precautions such as someone hold the ladder could have decreased plaintiff’s chances of injury.”  Plaintiff’s serious injuries did not override the fact-sensitive analysis of the employment relationship and the events leading up to the accident.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.