McDade v. Siazon, 208 N.J. 463 (2011). Under the Tort Claims Act, N.J.S.A. 59:8-8(a), one who wishes to make a tort claim against a public entity must first file a notice of claim within ninety days of the accrual of the cause of action. In this case, plaintiff, who allegedly fell on a sidewalk as a result of a raised pipe, filed notices of tort claim with various public entities, but not with the local municipal utilities authority (“MUA”), the owner of the pipe. After plaintiff filed suit, the MUA moved for summary judgment based on the fact that plaintiff had not submitted a notice of claim to the MUA. Plaintiff opposed the motion on the grounds that he had not known that the MUA owned the pipe, and that the discovery rule tolled his time to file a notice of claim. The Law Division denied the MUA’s motion, agreeing with plaintiff. The MUA was granted leave to appeal by the Appellate Division, and that court reversed, ruling for the MUA. Plaintiff went to the Supreme Court, which unanimously affirmed the Appellate Division, in an opinion by Justice Patterson.
Justice Patterson began by noting the standard of review of summary judgment rulings, which is de novo. Under that standard, affirmance was appropriate.
Quoting Beauchamp v. Amedio, 164 N.J. 111 (2000), the Court stated that the discovery rule “tolls the commencement of the ninety-day notice period only ‘[u]ntil the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained.'” The Legislature did, however, provide a safety valve for plaintiffs who miss the notice deadline. Under N.J.S.A. 59:8-9, a plaintiff may apply for leave to file a late notice of claim. Two criteria must be satisfied on such an application. First, the plaintiff must show “sufficient reasons constituting extraordinary circumstances” for the failure to file notice timely. Second, the public entity must not be “substantially prejudiced.”
Plaintiff here never sought to file a late notice of claim. Had he done so, a court could have evaluated whether the requirements of N.J.S.A. 59:8-9 had been met. Moreover, plaintiff apparently did not make any real efforts within the ninety day notice period to determine who owned or controlled the pipe. Instead, he relied on the discovery rule. But the discovery rule does not extend the ninety day notice period. The position that it does contravenes the Legislature’s intent, manifested throughout the Tort Claims Act, as Justice Patterson described, to restrict claims against public entities. Accordingly, the Court affirmed the summary judgment for the MUA.