703 A.2d 993 | N.J. Super. Ct. App. Div. | 1997
The opinion of the court was delivered by
These appeals were separately docketed, briefed, and argued. Although the factual patterns of the appeals differ somewhat, the appeals parallel each other with respect to the applicable legal principles. We have therefore elected to consolidate the cases for the purpose of decision. Both appeals involve the same legal questions: Whether defendant physicians were each acting as private practitioners when performing surgery on plaintiffs, or acting as public employees of defendant hospital and, if the latter, whether there were “extraordinary circumstances” entitling plaintiffs to file a late notice of claim under N.J.S.A. 59:8-9 of the New Jersey Tort Claims Act, N.J.S.A 59:1-1 to 12-3.
Initially, in each matter, the trial judge refused to grant plaintiffs’ applications for leave to file a late notice of claim. But, on June 5, 1997, the trial judge, relying on our decision in Dunn v. Borough of Mountainside, 301 N.J.Super. 262, 693 A.2d 1248 (App.Div.1997), entered, sua sponte, orders reversing his initial decision. Plaintiffs were then permitted to file a late notice of claim in each case. After the denials of their motions for reconsideration, defendants made applications to this court for leave to file interlocutory appeals. On August 14, 1997, we granted leave to file the interlocutory appeals.
I
In A-7057-96, plaintiff Richard Allen
From the time 1 first came under the care and treatment of Dr. Krause and the physicians at Robert Wood Johnson University Hospital, 1 have always been under the impression that Dr. Krause was a private physician and that the people who eared for me at Robert Wood Johnson were employees of that Hospital. None of my health care providers have ever informed me that they were not private doctors or employees of Robert Wood Johnson University Hospital, and I have never received any information from any other source to that effect.
In opposition, it was certified that defendant Krause was an employee of the University of Medicine and Dentistry of New Jersey (UMDNJ). Defendants in Allen argued the following facts in their brief to the trial court:
Plaintiffs surgery was performed at Robert Wood Johnson University Hospital (“RWJUH”) by the defendant Tyrone J. Krause, M.D., an employee of the University of Medicine and Dentistry of New Jersey (“UMDNJ”).
RWJUH is a hospital affiliated with UMDNJ. Certain physicians who work at RWJUH may claim public employee status by virtue of their affiliation with the Robert Wood Johnson Medical School, which is affiliated with UMDNJ. Plaintiffs counsel, the law firm of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, P.C. was aware of this relationship at all relevant times.
UMDNJ is a public entity under Chapter 8 of Title 59 under the New Jersey Tort Claims Act (“The Act”) and Tyrone J. Krause, M.D. is an employee of a public entity. Pursuant to the Act, Dr. Krause is entitled to receive a notice of tort claim within ninety days from accrual of the alleged injury before a suit can be filed.
Defendants contended that plaintiff Allen’s application for leave to file a late notice of claim should be denied because Dr. Krause was an employee of a public entity and that there had been no showing of “extraordinary circumstances,” as required by N.J.S.A.
As we have indicated, after an initial denial, leave to file a late notice of claim was granted by the trial court. We granted leave to appeal the trial court’s interlocutory order.
II
In A-7061-96, plaintiff Christine Smith
Plaintiff Smith certified, in part, as follows:
It was my understanding that Dr. Frankel was a private physician and that he was treating me as his private patient. My insurance company, HIP/Rutger’s [siej Health Plan has paid all of his bills. At no time did Dr. Frankel or anyone else ever advise me that Dr. Frankel was an employee of the University of Medicine and Dentistry of New Jersey.
In opposition to plaintiff Smith’s application for leave to file a late notice of claim, defendants advanced substantially the same arguments made in plaintiff Allen’s case and again urged that “extraordinary circumstances” could not be shown, because plaintiff Smith’s counsel knew, from unrelated but similar cases, that defendants Frankel and D’Amelio may well have been acting as public employees at the time of plaintiff Smith’s surgery. Defendants also contend that plaintiffs counsel was made aware of the likelihood that the physicians would claim public employee status when he received the September 25, 1996, letter from defendant Krause.
Ill
Initially, we point out that the trial judge’s reliance upon Dunn as authority to permit the filing of a late notice of claim in each matter was misplaced. In Dunn, plaintiff was sexually assaulted by an on-duty police officer who had pulled her over for a putative traffic violation. She did not bring suit against the Borough and the deviant police officer until three years later. Dunn, supra, 301 N.J.Super, at 270-71, 693 A.2d 1248. We affirmed the summary judgment granted in favor of the Borough, because plaintiff was aware of her injuries the moment they occurred, and more than two years had elapsed from the accrual of her claims, thereby barring her action under N.J.S.A. 59:8-8b. Id. at 275, 693 A.2d 1248. However, we allowed the claim against the police officer to proceed, because the assault took place in 1991, before the Tort Claims Act was amended to provide limited tort claim immunity to public employees by requiring a notice of claim to be filed with respect to their alleged torts. Consequently, the police officer was not covered by the Tort Claims Act. Id. at 276, 693 A.2d 1248. Since the police officer had done his best from the time of the incident to conceal his identity and had failed to fulfill his statutory duty to report all criminal activity, including his own, we held that the two-year statute of limitations was tolled for equitable reasons. Id. at 280, 693 A.2d 1248. Adherence to the notice requirements of the Tort Claims Act was not an issue with respect to the police officer; and the extension of the ninety-day filing rule for “extraordinary circumstances” was not an issue with respect to either the Borough or the police officer.
IV
Permission to file a late notice of claim requires a showing (1) that the public entity or public employee will not be “substantially prejudiced” by the granting of such permission; and (2) that there are sufficient reasons, based upon the personal knowledge of the affiant, constituting “extraordinary circumstances” for the failure to file a notice of claim within the ninety-day window prescribed by N.J.S.A. 59:8-8. See N.J.S.A 59:8-9; Ohlweiler v. Township of Chatham, 290 N.J.Super. 399, 404, 675 A.2d 1176 (App.Div.1996). The term “extraordinary circumstances” has not been defined by the Legislature. It is for the courts to determine, on a case-by-case basis, what circumstances, in the context presented, will satisfy the statutory requirement. O’Neill v. City of Newark, 304 N.J.Super. 543, 551, 701 A.2d 717 (App.Div.1997) (quoting Ohlweiler, supra, at 404, 675 A.2d 1176).
Here, the trial court made no findings of fact or conclusions of law, in either of the eases now under appeal, to support the required statutory findings of the lack of “substantial prejudice”
By reason of the foregoing, the sua sponte orders of June 5, 1997, entered in each case under appeal are reversed. The matters are remanded for further proceedings. We do not retain jurisdiction.
Plaintiff Allen’s wife, Barbara Allen, sues per quod.
The defendants acknowledge before us that the one-year time period did not begin to run until June 18, 1996.
Plaintiff Smith's husband, James' Smith, sues per quod.