(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
JOAN H. FEINBERG V. STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, ET AL. (A-128-93)
Argued March 28, 1994 -- Decided August 3, 1994
POLLOCK, J., writing for a unanimous Court.
The issue on appeal is whether service of a notice of claim on the Attorney General and the
Department of Environmental Protection and Energy (DEPE) satisfies the Tort Claims Act's requirement
for service on a local public entity.
On March 29, 1989, groundwater overflowed the Delaware and Raritan Canal (the Canal) causing
approximately $100,000 in damages to property in Trenton owned by Joan Feinberg. On June 23, 1989,
within the ninety days required under the Tort Claims Act, Feinberg's attorney served tort-claim notices on
the State through the Attorney General's (AG) Office, the DEPE, and the Delaware and Raritan Canal
Commission (the Commission). Four days later, her attorney also served supplemental notices on the
appropriate forms on the AG, the DEPE, the Commission, and the State Treasurer, who processes tort
claims for the State.
The State, the DEPE, and the Commission share responsibility for the Canal. Feinberg was not
aware that on June 18, 1986, the DEPE had leased to the New Jersey Water Supply Authority (Authority)
the Delaware and Raritan Canal Transmission Complex for use as a water-supply facility. The lease
provided that the Authority would be responsible for the Canal's operation and maintenance, payment of all
taxes and assessments, repair of buildings and structures, and maintenance of adequate liability and property
damage insurance.
On July 19, 1989, the AG, through the Treasury Department's Bureau of Risk Management
acknowledged receipt of the notice of claim. However, no one informed Feinberg of the Authority's
involvement with the Canal.
On March 9, 1990, Feinberg filed her complaint against the State, the DEPE, and the Commission.
On May 30, 1990, the court entered defaults against each defendant for failure to answer the complaint.
Thereafter, the court vacated the defaults and, on July 31, 1990, the AG filed an answer for all defendants.
In its answer, the AG asserted a separate defense that the accident was caused by the negligence of persons
and entities over whom the defendants had no control. However, the AG did not mention the Authority by
name.
Feinberg propounded interrogatories on the AG. In one interrogatory, Feinberg asked the AG to
identify the entity or persons who operate or maintain the Canal, who are responsible for the operation or
maintenance of the Canal or who own or lease or otherwise has a property interest in the Canal from
January 1, 1980 to the present date. The defendants failed to answer Feinberg's interrogatories.
In June 1991, just prior to the return date of a motion to strike defendants' answer for failure to
answer interrogatories, defendants submitted their answers, including the answer that the action relates solely
to the exclusive supervision and function of the Authority. It was at this time that Feinberg first learned of
the unrecorded lease between the DEPE and the Authority.
On July 10, 1991, more than two years after the cause of action had accrued, she amended her
complaint to add the Authority as a defendant. In its answer, the Authority raised as a separate defense the
lack of proper notice under the Tort Claims Act (Act). The Act requires that prior to filing a complaint, a
notice of claim relating to the cause of action must be presented to the public entity no later than the
ninetieth day after accrual of the cause of action. Thereafter, the claimant may file suit following the
expiration of six months from the date that the notice of claim is received by the public entity. The Act also
provides that, at the discretion of the court, a claimant may be permitted to file a late notice of claim up to
one year after the accrual of the cause of action provided the entity is not substantially prejudiced thereby.
The Authority contends that Feinberg neither presented it with a notice of claim within ninety days of the
accrual of her cause of action nor applied to the court for leave to file a late notice of claim.
Feinberg moved before the trial court to strike the Authority's defense and the Authority cross-moved to dismiss the complaint for failure to file a notice of claim. The trial court granted the Authority's
cross-motion, dismissing the complaint for failure to timely file a notice of claim. The Appellate Division
affirmed, determining that the Authority is a "local public entity" under the Act and that Feinberg could
properly serve the notice of claim only by filing with the Authority. The court held that Feinberg's claim
failed because she had not served the Authority within the time prescribed by the Act.
The Supreme Court granted certification.
HELD: In serving timely notice of claim to the Attorney General and the Department of Environmental
Protection and Energy, Joan Feinberg properly served the New Jersey Water Supply Authority
under the Tort Claims Act.
1. Feinberg's original notice named all parties known to her to be involved in the ownership or an
operation of the Canal. Through timely discovery she sought more specific information that would lead her
to the identification of other responsible parties but the original defendants thwarted Feinberg's diligent
efforts. In addition, the lease between the DEPE and the Authority was unrecorded; therefore, Feinberg
could not have known of the Authority's involvement in the Canal. Moreover, the original defendants failed
to inform counsel of the Authority's role until well after the expiration of the one-year grace period under
the Act and well beyond the two-year statute of limitations. (pp. 10-12)
2. The Legislature did not intend for governmental entities, whether intentionally or unintentionally, to
impale a diligent claimant on the Act's technical requirements for notification. In the context of this case,
notification to the DEPE Commissioner was equivalent to notification to the Authority, especially in light of
defendants' dilatory tactics and the position of the Commissioner of the DEPE as Chairman and CEO of the
Authority. (pp. 12-13)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division.
JUSTICES CLIFFORD, HANDLER, O'HERN, GARIBALDI and STEIN join in JUSTICE
POLLOCK's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
128 September Term 1993
JOAN H. FEINBERG,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION; DELAWARE AND RARITAN
CANAL COMMISSION; and NEW JERSEY
WATER SUPPLY AUTHORITY,
Defendants-Respondents.
Argued March 28, 1994 --- Decided August 3, 1994
On certification to Superior Court, Appellate
Division, whose opinion is reported at
265 N.J. Super. 218 (1993).
Nathan M. Edelstein argued the cause for
appellant (Ridolfi, Friedman, Frank &
Edelstein, attorneys).
Robert M. Anderson argued the cause for
respondent New Jersey Water Supply Authority
(Henry S. Buchanan, attorney).
Robert M. Strang, Deputy Attorney General,
argued the cause for respondents State of New
Jersey, New Jersey Department of
Environmental Protection, and Delaware and
Raritan Canal Commission (Deborah T. Poritz,
Attorney General of New Jersey, attorney;
Mary C. Jacobson, Assistant Attorney General,
of counsel).
The opinion of the Court was delivered by
POLLOCK, J.
This is an appeal from the Appellate Division's affirmance
of the Law Division's dismissal of the complaint of plaintiff,
Joan H. Feinberg (plaintiff or Feinberg), against the New Jersey
Water Supply Authority (NJWSA or the Authority) for failure to
file a timely tort claim notice with the Authority as required by
N.J.S.A. 59:8-3 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act). The issue is whether service of a notice of
claim on the Attorney General and the Department of Environmental
Protection and Energy (DEPE), formerly known as the Department of
Environmental Protection, satisfies the Act's requirement for
service on a local public entity. The Appellate Division held
that the service did not satisfy that requirement. 265 N.J.
Super. 218. We granted Feinberg's petition for certification,
134 N.J. 564 (1993), and now reverse and remand to the Law
Division.
The matter arises on the grant of the Authority's motion to dismiss. Therefore, we assume as true all facts alleged by Feinberg and give her the benefit of all inferences that may be drawn from those facts. Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 79 (1993). According to Feinberg, on March 29, 1989, while she was building a drug store on her property in Trenton, groundwater overflowed the Delaware and Raritan Canal (the Canal) and caused approximately $100,000 in damages to the property. She alleges that all defendants were "negligent in the
operation, maintenance, repair, construction, and/or design of
the Delaware and Raritan Canal . . .," and that
the Canal "constitutes a continuing private nuisance injurious to
the plaintiff."
On June 23, 1989, within the ninety days required by
N.J.S.A. 59:8-8, plaintiff's counsel served tort-claim notices on
the State through the Attorney General's Office, the DEPE, and
the Delaware & Raritan Canal Commission (the Commission). Four
days later, her counsel served supplemental notices on prescribed
forms on these defendants and on the State Treasurer, who
processes tort claims for the State.
The State, DEPE, and the Commission share responsibility for
the Delaware and Raritan Canal. The State took possession of the
Canal from the Pennsylvania Railroad Company in 1934. 1993 NJWSA
Ann. Rep. 4; see N.J.S.A. 13:13A-1 (providing "the state of New
Jersey shall forthwith take possession of the Delaware and
Raritan canal"). N.J.S.A. 13:13-2 empowers and directs the DEPE
"to enter upon and take possession of the canal . . . for and on
behalf of the state of New Jersey." Additionally, N.J.S.A.
13:13A-1 to -15 vests the Commission with the power to "preserve,
maintain, [and] improve" the Canal in its capacity as a State
park. N.J.S.A. 13:13A-2b. Unknown to plaintiff, on June 18,
1986, the DEPE had leased to the Authority the Delaware and
Raritan Canal Transmission Complex for use as a water-supply
facility.
On July 19, 1989, the Attorney General, through the Treasury
Department's Bureau of Risk Management, acknowledged receipt of
the notice of claim and responded that "[t]he matter has been
assigned for investigation and as soon as we have sufficient
information, a representative of this office will contact you."
No one told Feinberg of the Authority's involvement.
On March 9, 1990, Feinberg filed her complaint against the
State, the DEPE, and the Commission. None of the defendants
filed a timely answer. On May 30, 1990, the court entered
defaults against each of them. Thereafter, the court vacated the
defaults, and on July 31, 1990, the Attorney General filed an
answer for all defendants. The answer asserted a separate
defense that "[t]he accident was caused by the negligence of
persons and entities over whom the defendants had no control."
It did not mention the Authority by name.
Feinberg promptly propounded interrogatories, which
requested the Attorney General to
identify the entity or person who:
(b) Operates and/or maintains the D & R
Canal, and/or has been responsible for the
operation and/or maintenance of the D & R
Canal, from January 1, 1980 to the present
date;
(c) Owns and/or leases, or otherwise has a
property interest in, the D & R Canal (from
January 1, 1980 to the present date) . . . .
Defendants failed to answer the interrogatories. On February 8,
1991, the Law Division entered an order striking their answers to
the complaint. Feinberg then moved under Rule 4:23-5 to dismiss
the answers with prejudice. Defendants finally submitted the
answers to the interrogatories shortly before the return date of
the motion in June 1991.
The introduction to defendants' answers stated that:
The State of New Jersey and Department of
Environmental Protection has no independent
or personal knowledge as to the facts
contained in the herein interrogatories
especially in light of the fact that the
subject action relates solely to the
exclusive authority and functions of the NJ
Water Supply Authority, which is a separate
sue and be sued entity pursuant to N.J.S.A.
58:1b-3 et seq.
For the first time, Feinberg learned of the unrecorded lease between DEPE and the Authority. The lease was prepared by a deputy attorney general, who approved it "as to form," and was signed by the commissioner of the DEPE and the executive directors of the Commission and the Authority. It provided that the Authority would be responsible for the Canal's "operation and maintenance," payment of all taxes and assessments, keeping the
buildings and structures in good repair, and maintenance of
adequate liability and property damage insurance.
On June 28, 1991, the Law Division entered a consent order
granting Feinberg leave to name the Authority as a defendant.
Feinberg amended her complaint on July 10, 1991, more than two
years after her cause of action had accrued.
In its answer, filed on August 12, 1991, the Authority
raised as a separate defense lack of proper notice under the Tort
Claims Act. The Authority relied on N.J.S.A. 59:8-3, which
provides that an action may not be brought against a public
entity "unless the claim upon which it is based shall have been
presented in accordance with the procedure set forth in" the Act.
In this regard, N.J.S.A. 59:8-8 requires that:
A claim relating to a cause of action
for death or for injury to person or to
property shall be presented as provided in
this chapter not later than the ninetieth day
after accrual of the cause of action. After
the expiration of 6 months from the date
notice of claim is received, the claimant may
file suit in an appropriate court of law.
The claimant shall be forever barred from
recovering against a public entity if:
a. He failed to file his claim with
the public entity within 90 days of accrual
of his claim except as otherwise provided in
section 59:8-9; or
b. Two years have elapsed since the
accrual of the claim . . . .
Further, N.J.S.A. 59:8-9 provides:
A claimant who fails to file notice of
his claim within 90 days as provided in
section 59:8-8 of this act, may, in the
discretion of a judge of the superior court,
be permitted to file such notice at any time
within 1 year after the accrual of his claim
provided that the public entity has not been
substantially prejudiced thereby.
Application to the court for permission to
file a late notice of claim shall be made
upon motion based upon affidavits showing
sufficient reasons for his failure to file
notice of claim within the period of time
prescribed by section 59:8-8 of this act;
provided that in no event may any suit
against a public entity arising under this
act be filed later than 2 years from the time
of the accrual of the claim.
The Authority contends that plaintiff neither presented it
with a notice of claim within ninety days of the accrual of her
cause of action nor applied to the Superior Court for leave to
file such a claim within one year of accrual.
Feinberg moved to strike the Authority's defense. The
Authority filed a cross-motion to dismiss the complaint for
failure to file a notice of claim pursuant to N.J.S.A. 59:8-3.
The Law Division dismissed the complaint against the Authority for failure to file timely notice under N.J.S.A. 59:8-3. In affirming, the Appellate Division determined that the NJWSA is a "local public entity" under N.J.S.A. 59:8-2. The court concluded that under N.J.S.A. 59:8-7 plaintiff could
properly serve the notice of claim only by filing with the
Authority.
The Appellate Division referred to N.J.S.A. 59:8-10a, which
provides:
A claim shall be presented to the public
entity by delivering it to or mailing it
certified mail to the office of the Attorney
General or the office of the State agency
allegedly involved in the action. A claim
may be presented to a local public entity by
delivering it or mailing it certified mail to
the entity.
It also referred to the Act's definitions of "public entity,"
"State," and "local entity":
"Public entity" includes the State, and
any county, municipality, district, public
authority, public agency, and any other
political subdivision or public body in the
State.
"State" shall mean the State and any
office, department, division, bureau, board,
commission or agency of the State, but shall
not include any such entity which is
statutorily authorized to sue and be sued.
The court interpreted "local public entity" by referring to
N.J.S.A. 59:8-2, which defined it as "a public entity other than
the State." 265 N.J. Super. at 222.
Thus, the court perceived a "public entity" as comprised of
the "State" and "local public entities." Because the Authority
could sue and be sued, the court regarded it as a local public
entity.
The court then found that under N.J.S.A. 59:8-7 claims
against local public entities must be filed with those entities.
265 N.J. Super. at 223. In reaching this conclusion, the court
relied on N.J.S.A. 59:8-7, which provides:
A claim for damage or injury arising
under this act against the State shall be
filed either with (1) the Attorney General or
(2) the department or agency involved in the
alleged wrongful act or omission. A claim
for injury or damages arising under this act
against a local public entity shall be filed
with that entity.
The court concluded that plaintiff's claim failed because she had
not served the Authority within the time prescribed by the Act.
Both the Law Division and the Appellate Division were troubled by the dismissal of the complaint. The Law Division focused on the "dilatory conduct of the State." Similarly, the Appellate Division recognized that "the harsh result here could have been avoided by the Attorney General promptly advising plaintiff that the Authority was the responsible public entity to be given notice." 265 N.J. Super. at 224. It recognized,
moreover, "that N.J.S.A. 59:8-10a as drafted is a trap for the
unwary." Ibid.
The Tort Claims Act modifies the doctrine of sovereign immunity and creates limited situations in which parties may assert tort claims against public entities. Reale v. Township of Wayne, 132 N.J. Super. 100, 106 (Law Div. 1975). Before the Act, sovereign immunity had been the general rule in New Jersey. S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 113 n.3 (1977). In numerous decisions, however, courts had carved exceptions to avoid harsh results to injured plaintiffs. Ibid.; David J. Klinger and Gene Truncellito, Note, A Review of the New Jersey Tort Claims Act: Notice Provisions, Damages, and Third-Party Claims, 2 Seton Hall Legis. J. 50, 50 (1976). One purpose of the Act was to avoid the "somewhat haphazard and even arbitrary" erosion of sovereign immunity in the judicial decisions. S.E.W. Friel Co., supra, 73 N.J. at 113.
When adopting the Act, the Legislature recognized "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity." N.J.S.A. 59:1-2. It also recognized, however, that "the public policy of this State [is] that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles
established herein." Ibid. To balance the conflicting policies,
the Legislature directed that parties suing public entities must
comply with strict requirements for notifying and suing those
entities. Hence, the Legislature developed the detailed scheme
for notification contained in N.J.S.A. 59:8-1 to -11,
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, and any doubts which may exist should be resolved in favor of the application.'" S.E.W. Friel Co., supra, 73 N.J. at 122 (quoting Viles v. California, 423 P.2d 818, 821 (Cal. 1967)). We find that in serving timely notice to the Attorney General and the DEPE, plaintiff properly served the NJWSA under the Tort Claims Act.
A plaintiff's claim must include specific information,
including "[t]he name or names of the public entity, employee or
employees causing the injury, damage or loss, if known."
N.J.S.A. 59:8-4. Feinberg's original notice named all parties
known to her to be involved in the ownership and operation of the
Canal. Through timely discovery, she sought more specific
information that would lead to the identification of other
defendants. Her problem was not that she failed to make
reasonable efforts to ascertain the identity of such parties, but
that the original defendants thwarted those efforts. See Navarro
v. Rodriguez,
202 N.J. Super. 520, 528 (Law Div. 1984) ("There is
a substantial difference between information not being available
and not making an effort to obtain it.").
Because the lease between the DEPE and the Authority was unrecorded, plaintiff and her counsel could not have known of the Authority's involvement in the Canal. Her counsel prudently served interrogatories to ascertain the identity of other potential defendants. The original defendants failed to inform her counsel of the Authority's role until well after the expiration of the one-year grace period of N.J.S.A. 59:8-9. Worse, through delay in answering the complaint and interrogatories, defendants failed to disclose the identity of the Authority for two years beyond the accrual of the claim. See N.J.S.A. 58:8-9 (providing that "in no event may any suit against
a public entity arising under this act be filed later than 2
years from the time of the accrual of the claim"). Nothing in
the Act evinces the legislative intent that governmental
entities, whether intentionally or unintentionally, should be
able to impale a diligent claimant on the Act's technical
requirements for notification. Murray v. Brown,
259 N.J. Super. 360, 365 (Law Div. 1990) ("A governmental entity should [not]
feel free to ignore the claimant in the hope that within a short
time it might be able to use a technical cavil to avoid fair
litigation.").
In the singular context of this case, notification to the
DEPE commissioner was tantamount to notification to the
Authority. Although an autonomous entity, the Authority is "in
but not of" the DEPE. N.J.S.A. 58:1B-4a. Furthermore, the DEPE
commissioner serves as the chief executive officer and chairman
of the Authority. N.J.S.A. 58:1B-4d. When viewed against the
background of defendants' dilatory tactics, the unique facts of
this case support the conclusion that notification to the
commissioner constituted notification to the Authority.
The Authority argues that Feinberg should have known of its role concerning the Canal because N.J.S.A. 58:1B-5a, part of the Authority's enabling act, specifically includes the Delaware Raritan Canal Transmission Complex in the water-supply facilities
transferred to the Authority. We disagree. Another section of
the enabling act empowers the Authority to "acquire, . . .
maintain, . . . and operate projects . . . pursuant to a lease."
N.J.S.A. 58:1B-6. More persuasive than the reference to the
Canal complex in the Authority's enabling act are the facts that
the lease between the Authority and the DEPE was unrecorded and
that defendants' conduct prevented plaintiff from learning of the
role of the Authority concerning the Canal.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Law Division.
Justices Clifford, Handler, O'Hern, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz did not participate.