SHEILA BRYANT v. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE) ( 2022 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0726-20
    SHEILA BRYANT and LARRY
    BRYANT, wife and husband,
    Plaintiffs-Appellants,               APPROVED FOR PUBLICATION
    June 16, 2022
    v.                                               APPELLATE DIVISION
    COUNTY OF CUMBERLAND,
    Defendant-Respondent.
    _____________________________
    Submitted June 7, 2022 – Decided June 16, 2022
    Before Judges Fisher, Currier, and DeAlmeida.
    On appeal from the Superior Court of New Jersey, Law
    Division, Cumberland County, Docket No. L-0084-20.
    Jarve Kaplan Granato Starr, LLC, attorneys for
    appellants (Mati Jarve and Katherine M. Jarve, on the
    briefs).
    The Garty Law Firm, LLC, attorneys for respondent
    (M. Lou Garty, on the brief).
    The opinion of the court was delivered by
    FISHER, P.J.A.D.
    In a matter of first impression, we hold that service of a Tort Claims Act1
    notice of claim on a county is sufficient when sent to the county clerk rather
    than the board of county commissioners.
    Plaintiff Sheila Bryant and her husband filed this personal injury action in
    February 2020, alleging Cumberland County's negligence caused her to slip and
    fall in the county courthouse parking lot nearly two years earlier. Rather than
    answer the complaint, the County moved to dismiss or, in the alternative, for
    summary judgment, asserting that plaintiffs failed to comply with the Tort
    Claims Act's notice requirements. The County did not claim some infirmity in
    the notice's form or content; it argued instead that the notice was not properly
    served because plaintiffs sent it to the County Clerk instead of the Clerk of the
    Board of County Commissioners.2
    In her written opinion, the trial judge correctly focused on those parts of
    the Tort Claims Act that govern the manner of service of a notice of claim.
    N.J.S.A. 59:8-7 is specific about how to serve the State, calling for its
    submission to either the Attorney General or "the department or agency involved
    1
    N.J.S.A. 59:1-1 to 12-3.
    2
    The entities once known as boards of chosen freeholders are now known as
    boards of county commissioners. See L. 2020, c. 67 (effective Jan. 1, 2021).
    A-0726-20
    2
    in the alleged wrongful act or omission." But, as for "local public entit[ies],"
    defined as including all public bodies except the State, N.J.S.A. 59:8-2, the Act
    requires only that the notice of claim be filed with "that entity," N.J.S.A. 59:8-
    7, or "the entity," N.J.S.A. 59:8-10, without further elaboration. And so, there is
    nothing in the Tort Claims Act that would identify for a claimant the particular
    county office or officer to be served with the required notice of claim; in fact,
    the Act does not even suggest there is just one county office or officer that fits
    the bill.
    In her thorough opinion, the trial judge considered the various roles
    performed by county clerks and boards of county commissioners. The judge
    concluded that because it is the governing body and would "oversee litigation
    against the County," it was Cumberland's Board of County Commissioners and
    not its County Clerk that had to be served, even though the judge also recognized
    the County Clerk "is an entity within the County that acts on behalf of the
    County for some functions[.]"
    There is some logic in the trial judge's approach and in her conclusion that
    the Board of County Commissioners is the office within the County that would
    bear the responsibility for overseeing the litigation, and we would agree that the
    Board of County Commissioners was an appropriate entity upon which to serve
    A-0726-20
    3
    a notice of claim. But we also cannot overlook that a litigant's failure to draw
    the same conclusion – without any guidance from the Tort Claims Act – would
    lead to the barring of a meritorious claim.
    We find nothing in the broad phrasing of N.J.S.A. 59:8-7 and -10 to
    suggest, as the County argues, that it is only the clerk of the board of county
    commissioners that a plaintiff must serve with a notice of claim. If that is what
    the Act intended, then it could have said so. We also find nothing in these
    provisions to foreclose the possibility that the Legislature may have intended
    that more than one county office or officer could represent the county for
    purposes of receiving a notice of claim. This is suggested as well by Rule 4:4-
    4(a)(8), which allows for service of process on public bodies other than the State
    by personally serving the summons and complaint on "the presiding officer or
    on the clerk or secretary thereof." Our courts have not previously considered or
    construed Rule 4:4-4(a)(8), but its plain language plausibly supports the notion
    that there is, in fact, more than one person who may accept service of a summons
    and complaint for a county and that one of those persons would be "the clerk
    . . . thereof," a phrase that may reasonably be understood as connoting the county
    clerk. We have not been provided with a principled reason for concluding that
    the Tort Claims Act's requirements for service of a notice of claim on a county
    A-0726-20
    4
    are more exacting than Rule 4:4-4's requirements, which have constitutional
    underpinnings, for serving a summons and complaint on a county.
    In short, the Tort Claims Act failed to identify who it is a claimant must
    serve with a notice of claim when suing a county. And, to be sure, it is a matter
    best cleared up by the Legislature. See Plastic Surgery Ctr., P.A. v. Malouf
    Chevrolet-Cadillac, Inc., 
    241 N.J. 112
    , 113 (2020); E.C. v. Inglima-Donaldson,
    
    470 N.J. Super. 41
    , 56 (App. Div. 2021). Until then, however, we believe the
    question should be answered in a way that promotes fairness to all parties. In
    the final analysis, the notice provisions of the Tort Claims Act were not intended
    "as 'a trap for the unwary.'" H.C. Equities, L.P. v. County of Union, 
    247 N.J. 366
    , 383 (2021) (quoting Murray v. Brown, 
    259 N.J. Super. 360
    , 365 (Law Div.
    1991)). When plaintiffs mailed their notice of claim, all they had for guidance
    were the Act's provisions that the notice had to be sent to the "entity" they
    intended to sue.3 See N.J.S.A. 59:8-7 and -10. Because there is a certain logic to
    serving a county by serving its county clerk – just as service of a notice on a
    municipality would logically be forwarded to the municipal clerk – we conclude
    3
    In her written opinion, the judge referred to the county website as a source of
    information about where to serve a notice of claim. But, even assuming a county
    may decide on its own where a notice of claim must be sent, even now, after the
    trial court's decision in this matter, Cumberland County's website gives no
    direction to the public as to where it believes a notice of claim should be sent.
    A-0726-20
    5
    that plaintiffs' service of the notice of claim on Cumberland's County Clerk was
    sufficient.4 In addition, it is difficult to imagine how a county could be
    prejudiced since, on receipt of a notice of claim, the county clerk would
    undoubtedly understand that it should be forwarded to the official the particular
    county charged with opening a file, contacting county counsel, and starting an
    investigation.5
    The order under review is reversed and the matter remanded for further
    proceedings. We do not retain jurisdiction.
    4
    We neither consider nor opine on what would be valid service of a notice of
    claim on a county that has adopted the "county executive plan" prescribed in
    N.J.S.A. 40:41A-31 to -44.
    5
    Although unnecessary to our decision, we observe that the record does not
    permit an assumption that the notice plaintiffs sent to the County Clerk did not
    inform the County of the claim. The County offered only the hearsay
    certification of its attorney about whether county officers were aware of the
    claim. This type of hearsay does not move the needle one way or the other on a
    motion for summary judgment. See Higgins v. Thurber, 
    413 N.J. Super. 1
    , 21
    n.19 (App. Div. 2010), aff’d, 
    205 N.J. 227
     (2011).
    A-0726-20
    6
    

Document Info

Docket Number: A-0726-20

Filed Date: 6/16/2022

Precedential Status: Precedential

Modified Date: 6/29/2022