SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3084-95T1
A-5211-95T1
ROBERTA DUNN,
Plaintiff-Appellant,
v.
BOROUGH OF MOUNTAINSIDE
and THOMAS McCARTNEY,
Defendants-Respondents,
-and-
MOUNTAINSIDE POLICE
DEPARTMENT,
Defendant.
ANN L. RENAUD, ESQ. and
RAMP & RENAUD,
Intervenors-Appellants.
_________________________________________________________________
A-3084-95 Argued: February 13, 1997
Decided: May 27, 1997
A-5211-95 Submitted: February 13, 1997 -
Decided: May 27, 1997
Before Judges Shebell, Baime and Braithwaite.
On appeal from the Superior Court of New
Jersey, Law Division, Union County.
Richard F. Connors, Jr. argued the cause for
plaintiff-appellant and intervenors-appellants in A-3084-95 (Tompkins, McGuire &
Wachenfeld, attorneys; Christopher J. Carey
of Ramp & Renaud, of counsel; Mr. Connors and
David M. Blackwell, on the brief).
Matthew R. Pomo, Jr. argued the cause for
respondent Thomas McCartney in A-3084-95
(Doyle & Brady, attorneys; Mr. Pomo, on the
brief).
David M. Epstein argued the cause for
respondent Borough of Mountainside in A-3084-95 (Post, Polak, Goodsell & MacNeill,
attorneys; Mr. Epstein and Loretta B.
Critchley, on the brief).
McCarthy and Schatzman, attorneys for
plaintiff-appellant in A-5211-95 (W. Scott
Stoner, of counsel; James A. Endicott, on the
brief).
Tompkins, McGuire & Wachenfeld, attorneys for
intervenors-appellants in A-5211-95
(Christopher J. Carey, of counsel; Richard F.
Connors and David M. Blackwell, on the
brief).
The opinion of the court was delivered by
BRAITHWAITE, J.A.D.
Plaintiff, Roberta Dunn, appeals from orders granting
summary judgment to defendants Borough of Mountainside
(Mountainside) and Thomas McCartney, dismissing her personal
injury claims. She also appeals from an order denying her motion
to amend her complaint to assert a legal malpractice claim
against intervenors Ann L. Renaud and Ramp & Renaud (Renaud).See footnote 1
On the appeal from orders granting summary judgment,
plaintiff and Renaud contend:
POINT I
AS THIS MATTER INVOLVES THE APPEAL FROM FINAL
SUMMARY JUDGMENT ORDERS, THE STANDARD OF
REVIEW IS PLENARY.
POINT II
PLAINTIFF'S NOTICE OF CLAIM AND COMPLAINT
WERE FILED WITHIN TWO YEARS OF HER DISCOVERY
THAT A BOROUGH OF MOUNTAINSIDE POLICE OFFICER
HAD SEXUALLY ASSAULTED HER AND, THEREFORE,
THE ORDERS GRANTING SUMMARY JUDGMENT TO
DEFENDANTS BOROUGH OF MOUNTAINSIDE AND THOMAS
McCARTNEY SHOULD BE REVERSED.
a. The Discovery Rule Is An Equitable
Principle Which, Under Special
circumstances and in the Interests
of Justice, Will Toll the
Expiration of Statutes of
Limitations.
b. Application of the Discovery Rule
to the Within Matter Warrants
Reversal of the Orders Granting
Summary Judgment to Defendants
Borough of Mountainside and Thomas
McCartney.
POINT III
PLAINTIFF'S FAILURE TO FILE A FICTITIOUS NAME
COMPLAINT DOES NOT CONSTITUTE A LACK OF
REASONABLE DILIGENCE.
On the appeal denying her motion to amend her complaint,
plaintiff asserts:
POINT I
THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S
MOTION TO AMEND BECAUSE THE ENTIRE
CONTROVERSY DOCTRINE REQUIRED THAT THE MOTION
BE GRANTED, THE LAW DIVISION CASE WAS STILL
IN EXISTENCE AT THE TIME THE MOTION TO AMEND
WAS FILED, AND SUCH MOTIONS SHOULD BE FREELY
GRANTED IN THE INTEREST OF JUSTICE.
We affirm the summary judgment granted to Mountainside,
reverse the summary judgment granted to McCartney, and reverse
and remand for reconsideration of the order denying plaintiff's
motion to amend in light of this opinion.
Plaintiff's version of events are set forth as follows. At or about midnight on May 17, 1991, plaintiff left her workplace, the Dancing Lady's Lounge, which is located on Route 22 in Green Brook, and drove east on Route 22 in her car. She stopped at a Dunkin' Donuts restaurant for approximately five minutes. Thereafter, she continued to drive east on Route 22 at "highway speed" for eight minutes when she was stopped by a police officer, who told her that she had been speeding. In 1994, McCartney was identified as the police officer.
McCartney asked plaintiff for her motor vehicle registration card. She produced an expired registration card and a temporary Florida driver's license and told McCartney that she did not have a New Jersey driver's license. McCartney told plaintiff that her Florida license was invalid and that she could not drive on that license without someone accompanying her. McCartney further stated that her car would have to be towed, and she would be stranded.
McCartney also told plaintiff that it was his duty either to take her to a motel or to the police station. She chose to go to the police station, but McCartney told her that "they wouldn't have any sympathy for [her] there." Plaintiff then asked if she could drive back to her place of employment and leave her car
there. McCartney said he could not let her drive the car and
again offered to drive her to a motel.
Plaintiff then asked McCartney to write the ticket, and she
would prove in court that her Florida driver's license was valid.
McCartney declined and said that plaintiff "would have to walk."
Plaintiff began to cry.
As plaintiff was crying, two other officers drove up and
asked McCartney if he needed any help. The two officers were
driving the same type of patrol car as the one McCartney was
driving. McCartney advised the officers that he did not need any
assistance. Plaintiff believed that the officers referred to
McCartney as "John."
McCartney asked plaintiff whether she was a barmaid or a
dancer at the Dancing Lady's Lounge, and she told him that she
was a dancer. McCartney then asked her if the dancers at that
lounge still danced in the nude. She replied, "yes," and
McCartney told plaintiff that he would like to see her dance.
McCartney then told plaintiff to follow him in her car,
which she did. She thought about trying to get away, but she
continued to follow McCartney because she was scared that he was
a "maniac." She followed McCartney to a deserted parking lot
behind a square, plain-looking building with a wooded area on one
side of the lot. Plaintiff got out of her car in the parking lot
and said to McCartney "please don't hurt me." McCartney
responded angrily, "you think I'm some kind of weirdo, don't you?
He later stated, "if you won't do this, I'll write you the
summonses right now and take your car." Because she was alone
with McCartney and felt that she had no other choice, plaintiff
then said "no, I'll do it."
McCartney directed plaintiff to dance nude like she does at
work. She did so for about three minutes but held her clothes so
they covered her body while she danced. While she was dancing,
McCartney asked her if dancing turned her on and commented that
she was "in good shape for [her] age."
After she finished dancing, McCartney asked plaintiff if she
ever thought about having sex with a police officer, and she told
him that she had not. McCartney then asked her if she would have
sex with him, and she again answered "no." McCartney told her
that she should be grateful to him. Plaintiff replied that she
was. Then McCartney asked, "well just a hand job?" Plaintiff
again replied "no."
After imploring plaintiff to engage in sexual relations,
McCartney took off his belt, took out his penis, and then
sexually assaulted plaintiff. Thereafter, McCartney returned
plaintiff's registration card and told her "you didn't have to do
that, you know that." Finally, McCartney told her that "anytime
you're in Green Brook you have carte blanche." Plaintiff got
back in her car, and McCartney led her back to Route 22 east.
McCartney then headed west on Route 22.
Plaintiff told her employer at the Dancing Lady's Lounge
about the incident. Her employer reported the incident to the
Green Brook Police. The next morning, plaintiff called a rape
crisis center. At the suggestion of the Union County Rape Crisis
Center, she contacted the Somerset County Prosecutor's Office to
report the incident. She was subsequently interviewed by the
Somerset County Prosecutor's Office and the Union County
Prosecutor's Office.
Plaintiff described McCartney as a six-foot tall white male
with a clean-shaven, boyish face; full lips; light complexion,
light, sandy-colored hair; and a medium build. Plaintiff
recalled that he had told her that he was twenty-five years old.
According to plaintiff, he looked "all-American." Plaintiff did
not recall whether McCartney was wearing a hat, but he was not
wearing glasses or any jewelry and did not have any
distinguishing features such as scars, marks, or tattoos. His
uniform was a light "grayish blue," and he wore a belt with a
gun. McCartney also told her his name, but she could not
remember it. Plaintiff thought that his name was either John or
Tom. Plaintiff had previously stated that she was "ninety-five
percent sure" that she would recognize him again.
On May 20, 1991, plaintiff retained Renaud to represent her
in this matter. Plaintiff "relied at all times upon public
agencies to determine the identity of her assailant." She did,
however, periodically contact the Union County Prosecutor's
Office to check on the status of the investigation. Furthermore,
when asked for input into the investigation, she cooperated with
the authorities.
On July 2, 1993, plaintiff reviewed an array of one hundred
and four photographs. She picked out two photographs, one of
which was of McCartney. She could not make a positive
identification, however, because McCartney had a mustache in that
photograph. Plaintiff stated that McCartney did not have a
mustache at the time of the incident. At plaintiff's suggestion,
a lineup was arranged with McCartney as one of the participants.
She did not positively identify him at the lineup.
Plaintiff also drove on Route 22 "countless times" or
"twenty times" and underwent hypnosis, but not with a medical
professional, in an effort to recall more details about the
incident so that she could help find her assailant. She did not
positively identify McCartney as the officer who assaulted her
until she saw his picture in the Newark Star-Ledger accompanying
an article dated May 7, 1994, which indicated that McCartney had
been indicted for similar incidents with other women. She then
promptly contacted her attorney, Renaud, and told Renaud that
McCartney was the officer who had assaulted her.
On July 1, 1994, Renaud advised Mountainside and the
Mountainside Police Department (Mountainside Police) of plaintiff's intention to file a claim against them pursuant to the
Tort Claims Act, N.J.S.A. 59:1-1 to -12-3 (TCA), based on
McCartney's sexual assault of plaintiff.
On December 15, 1994, plaintiff filed a six-count complaint
against Mountainside, Mountainside Police, McCartney, and the
fictitious defendants John Doe (1-10) and ABC Corp. alleging the
following: (1) McCartney forced her to engage in various sexual
acts against her will; (2) Mountainside's negligent hiring,
training, and supervision of McCartney; (3) intentional and negligent infliction of emotional distress; (4) willful and wanton
conduct, gross negligence, and recklessness; (5) assault and battery; and (6) the tort of outrage, which duplicates the portion
of the third count alleging intentional infliction of emotional
distress. The complaint sought compensatory and exemplary
damages.
After filing an answer, Mountainside and Mountainside Police
moved to dismiss count one and counts three through six of the
complaint and plaintiff's claims for exemplary damages asserting
that the counts failed to state a claim upon which relief could
be granted. On June 23, 1995, Mountainside's motion was granted.
The judge also dismissed count two against Mountainside Police,
sua sponte, because he determined that Mountainside Police was
not a separate and distinct entity from Mountainside.
In August 1995, Mountainside moved for summary judgment on
count two based on the notice of claim provisions and the statute
of limitations contained in N.J.S.A. 59:8-8. On September 29,
1995, Mountainside's motion was granted.
In December 1995, McCartney moved for summary judgment
asserting plaintiff's failure to comply with the applicable
statute of limitations and the notice of claim provisions of the
TCA. The motion was granted on January 19, 1996, but the order
was not signed until February 20, 1996.
On February 7, 1996, plaintiff filed a notice of appeal from
the motion judge's decisions granting summary judgment to
Mountainside and McCartney. Technically, the notice of appeal
was filed prematurely because the motion judge had not signed the
order dismissing the complaint against McCartney.
On February 15, 1996, after filing this appeal, but before
the motion judge signed the order dismissing the complaint
against McCartney, plaintiff moved to amend her complaint to
include a claim for malpractice against her attorney Renaud.
On March 29, 1996, plaintiff's motion to amend the complaint was
denied. On May 13, 1996, plaintiff filed a separate appeal from
the March 29, 1996, denial. This separate appeal is docketed as
A-5211-95.
On April 8, 1996, Renaud filed a motion with this court to
intervene in the appeal dismissing plaintiff's claims against
Mountainside and McCartney, which was granted on June 20, 1996.
On the same day, we also granted Renaud's motion to be relieved
as plaintiff's counsel. By order dated August 27, 1996, we
permitted plaintiff to rely on the brief filed on behalf of
intervenors. Counsel for intervenors argued the cause for both
plaintiff and intervenors because of their common interest.
We first address the propriety of granting summary judgment to Mountainside and the application of the discovery rule to plaintiff's claims against Mountainside and McCartney. Plaintiff
and Renaud argue that the TCA's requirement that an injured
person timely file suit, pursuant to N.J.S.A. 59:8-8, should have
been tolled by the discovery rule. The motion judge found that
"plaintiff did not act diligently in attempting to discover the
identity of this defendant," and therefore, the discovery rule
did not toll the statute of limitations or the time period during
which plaintiff was required to file a notice of claim.
Accordingly, the judge granted summary judgment to Mountainside
and McCartney. Mountainside and McCartney argue that the trial
court properly dismissed the complaint because plaintiff failed
to meet the requirements of the discovery rule.
N.J.S.A. 59:8-8 provides, in pertinent part, as follows:
A claim relating to a cause of action
for death or for injury or damage 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 six 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 or public employee 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 . .
. .
[Ibid. (footnote omitted).]
The accrual date of the cause of action under the TCA is "the
date on which the claim accrued and shall not be affected by the
notice provisions contained [in the TCA]." N.J.S.A. 59:8-1.
It is undisputed that plaintiff knew that she had been
sexually assaulted at about midnight on May 17, 1991, by a
municipal police officer. Yet, plaintiff did not file suit until
December 15, 1994, more than three years later. Generally, a
tort claim accrues when a person is injured due to another
person's fault. See Rosenau v. City of New Brunswick,
51 N.J. 130, 138 (1968). Therefore, plaintiff's action against
Mountainside is barred by N.J.S.A. 59:8-8b, which requires a
complaint to be filed within two years after plaintiff's cause of
action accrued.See footnote 2 Moreover, plaintiff also failed to comply with
the notice of claim provision of the TCA. See N.J.S.A. 59:8-4;
N.J.S.A. 59:8-8.
Plaintiff and Renaud argue that this claim is saved by the
discovery rule. We disagree. The discovery rule is an equitable
doctrine created by the courts to protect unsuspecting persons
from statutory limitations periods during which a claim must be
brought or forever lost. See Lopez v. Swyer,
62 N.J. 267, 272-74
(1973). A cause of action does not accrue under the discovery
rule "until the injured party discovers, or by an exercise of
reasonable diligence and intelligence should have discovered,
that he may have a basis for an actionable claim." Id. at 272.
Plaintiff's and Renaud's reliance on O'Keeffe v. Snyder,
83 N.J. 478 (1980), is misplaced. In O'Keeffe, the plaintiff, an
artist, did not have a viable replevin action until she knew or
should have known that her paintings were in another person's
possession. Prior to that time, the paintings were just missing.
The Court in O'Keeffe based its ruling on the common law
principles surrounding replevin actions and the acquisition of
title to the personal property. See id. at 497-500. Replevin,
however, is not the cause of action in this case. Under the
general principles of the discovery rule, it is the discovery of
the injury that is important, not the discovery of the injurer.
The present case is distinguishable from O'Keeffe.
We conclude that the discovery rule does not apply. The
discovery rule suspends the statute of limitations "when the
plaintiff is unaware of his or her injuries or of the culpability
of another." Viviano v. CBS, Inc.,
101 N.J. 538, 547 (1986).
The rule does not delay the accrual of the cause of action when
the plaintiff knows about the injury but cannot determine the
tortfeasor's identity. Id. at 546-47. Here, plaintiff knew that
she had been sexually assaulted and therefore had a cause of
action, but she had difficulty ascertaining the identity of the
tortfeasors. The protection of the discovery rule is therefore
not available to plaintiff with respect to her claims against
Mountainside or McCartney. Although we hold that the discovery
rule is not available to plaintiff with respect to her claims
against Mountainside and McCartney, we conclude, infra, that
plaintiff's claims against McCartney should not be barred by the
statute of limitations. Because plaintiff failed to file her
complaint against Mountainside within two years of May 17, 1991,
her claim is barred. See N.J.S.A. 59:8-8b.
Plaintiff and Renaud raise two additional points that only
merit brief discussion. First, they argue that the motion judge
should have held a hearing pursuant to Lopez, supra, prior to
determining the application of the discovery rule. We conclude,
however, that such a hearing was not required. The material
facts regarding plaintiff's efforts to identify the tortfeasors
were not in dispute, and credibility was not an issue. Under
such circumstances, a hearing was not necessary. See Lopez,
supra, 62 N.J. at 275-76.
Second, plaintiff and Renaud argue that Brill v. Guardian
Life Insurance Co. of America,
142 N.J. 520 (1995), does not
apply to this case because Brill was decided after summary
judgment was granted to Mountainside. This argument is without
merit. R. 2:11-3(e)(1)(E). There were still "unresolved issues
concerning summary judgment" at the time of the Brill decision,
thereby making it applicable to this case. Brill, supra, 142
N.J. at 545-46.
We conclude that the motion judge was correct in refusing to
apply the discovery rule but for the wrong reason. He decided
that, as a matter of law, plaintiff's efforts to determine the
identity of the tortfeasors were unreasonable and inadequate, and
therefore, the discovery rule did not apply.
We are satisfied, however, that the discovery rule does not
apply in this case because plaintiff knew at the time of the
assault that she had been injured due to the fault of another.
"From the moment the accident occurred, plaintiff knew of facts
that equated with a cause of action. Thus . . . plaintiff is not
entitled to the protection of the discovery rule, and the statute
of limitations began to run on the date of her injury." Viviano,
supra, 101 N.J. at 547 (citation omitted). The fictitious
pleading rule is the correct way for a litigant to preserve a
cause of action when the litigant knows the nature of the claim
but does not know the tortfeasor's identity. See R. 4:26-4.
"[A]n order or judgment will be affirmed on appeal if it is
correct, even though the judge gave the wrong reasons for it."
Ellison v. Evergreen Cemetery,
266 N.J. Super. 74, 78 (App. Div.
1993). We therefore affirm the grant of summary judgment to
Mountainside.
We now address the propriety of granting summary judgment to McCartney. We note at the outset that under current law, a
failure to comply with the procedures of the TCA bars an action
"against a public entity or public employee." N.J.S.A. 59:8-3.See footnote 3
At the time of the accrual of plaintiff's claim, May 17,
1991, the TCA "applie[d] to actions against public entities, but
not public employees. Any failure to adhere to the Act's
provisions would only affect plaintiff's claims against [the
public entity]." Morgan v. Union County Board of Chosen
Freeholders,
268 N.J. Super. 337, 356-57 (App. Div.
1993)(citations omitted), certif. denied,
135 N.J. 468 (1994);
see also Chatman v. Hall,
128 N.J. 394, 402-03 (1992).
Accordingly, McCartney cannot successfully argue that plaintiff
failed to comply with the provisions of the TCA. Although
McCartney cannot rely on the provisions of the TCA, he can rely
on N.J.S.A. 2A:14-2, which provides that "[e]very action at law
for an injury to the person caused by the wrongful act, neglect
or default of any person within this state shall be commenced
within 2 years next after the cause of any such action shall have
accrued." Ibid.
An examination of the circumstances of this case leads us to
the conclusion that the statute of limitations should not bar
plaintiff's claims against McCartney.
In determining whether the statute of limitations was tolled while plaintiff attempted to learn her assailant's identity, it
is first necessary to discuss McCartney's duties to the public as
a police officer. At the time of the sexual assault, McCartney
was a police officer who "must not himself violate the laws he is
sworn to enforce." State v. Cohen,
32 N.J. 1, 10 (1960). "A
police officer has the recognized duty to use all reasonable
means to enforce the laws applicable in his jurisdiction, and to
apprehend violators." Id. at 9. See also State v. McFeeley,
136 N.J.L. 102, 108 (Sup. Ct. 1947); State v. Donovan,
132 N.J.L. 319, 321 (Sup. Ct. 1945); Henderson v. State,
7 N.J. Misc. 520,
522 (Sup. Ct. 1929).
Here, McCartney not only breached his duty to enforce the
law, he violated the laws that he was sworn to enforce.
One of the fundamental duties of a police
department, from chief of police to
patrolman, is to be on the lookout for
infractions of the law and to use due
diligence in discovering and reporting them,
and in a proper case arresting the
perpetrator and lodging and prosecuting a
proper complaint.
[McFeeley, supra, 136 N.J.L. at 108 (emphasis
omitted).]
There can be no dispute that had another individual assaulted
plaintiff and had McCartney learned the identity of that person,
he would have had a duty to report and arrest that individual.
Furthermore, McCartney violated the official misconduct
statute when he failed to report his conduct after he sexually
assaulted plaintiff. N.J.S.A. 2C:30-2 states, in relevant part,
as follows:
A public servant is guilty of official
misconduct when, with purpose to obtain a
benefit for himself or another or to injure
or to deprive another of a benefit:
a. He commits an act relating to
his office but constituting an
unauthorized exercise of his
official functions, knowing that
such act is unauthorized or he is
committing such act in an
unauthorized manner; or
b. He knowingly refrains from
performing a duty which is imposed
upon him by law or is clearly
inherent in the nature of his
office.
[Ibid.]
The official misconduct statute clearly applies in this
situation. McCartney used his badge and authority as a police
officer to stop plaintiff's vehicle and later sexually assault
her. See State v. Parker,
124 N.J. 628 (1991), cert. denied,
503 U.S. 939,
112 S. Ct. 1483,
117 L. Ed.2d 625 (1992); State v.
Stevens,
115 N.J. 289 (1989); State v. Lore,
197 N.J. Super. 277
(App. Div. 1984); Kaufman v. Borough of Glassboro,
181 N.J.
Super. 273 (App. Div. 1981). See also T.J.M. v. Police &
Firemen's Retirement Sys.,
218 N.J. Super. 274, 280 (App. Div.
1987) (stating that plaintiff's sexual assaults of his daughter
were unrelated to his duties as a police officer). At the time
of the sexual assault, McCartney was a "public servant," pursuant
to N.J.S.A. 2C:30-2. See N.J.S.A. 2C:27-1g. In addition, from
the evidence presented, not only did McCartney sexually assault
plaintiff, an "unauthorized exercise of his official function,"
N.J.S.A. 2C:30-2(a), he also failed to report his crime to law
enforcement, a violation of his statutory and common-law duties
as a police officer. See ibid; see also McFeeley, supra, 136
N.J.L. at 108.
It is clear from both case law and the official misconduct
statute that McCartney had a duty to disclose his sexual assault
on plaintiff.
McCartney's duty to report his sexual assault on plaintiff, at first glance, seems to violate his Constitutional privilege against self-incrimination. We find that New Jersey's privilege against self-incrimination does not apply to McCartney in this situation.
A criminal defendant's Constitutional right against self-incrimination was first applied to the states in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653 (1964). "[O]ur state-law privilege against self-incrimination is . . . more protective than the fifth amendment." State v. Strong, 110 N.J. 583, 595 (1988). The state-law privilege against self-incrimination is set forth in N.J.R.E. 503, which states, in pertinent part, as follows:
Subject to Rule 37 [Rule 530], every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate, except that under this rule:
(c) no person has a privilege to refuse to disclose any matter which the statutes or regulations governing his office, activity,
occupation, profession or calling,
or governing the corporation or
association of which he is an
officer, agent or employee, require
him to record or report or disclose
except to the extent that such
statutes or regulations provide
that the matter to be recorded,
reported or disclosed shall be
privileged and confidential. . . .
[Ibid. (emphasis added).]
Pursuant to N.J.R.E. 503(c), McCartney could not assert the
privilege against self-incrimination to avoid disclosing his
sexual assault of plaintiff. As previously stated in Section A,
supra, McCartney had a duty, as a police officer, to disclose his
sexual assault on plaintiff. In addition, his failure to
disclose was a violation of the official misconduct statute.
Whether a police officer who has committed a crime will
voluntarily report his or her misdeeds to fellow officers or the
authorities, is not the question. It is clear, however, that a
police officer's failure to report himself is not supported by
the privilege against self-incrimination. It is the police
officer's failure to report that would be the basis of an
official misconduct charge. See N.J.S.A. 2C:30- 2b. The
privilege against self incrimination "is to be silent, it is not
a privilege to commit crime." State v. Falco,
60 N.J. 570, 585
(1972).
The statute of limitations for plaintiff's claims against McCartney "are based on the goals of achieving security and stability in human affairs and ensuring that cases are not tried
on the basis of stale evidence." Zaccardi v. Becker,
88 N.J. 245, 256 (1982). Furthermore,
[u]nswerving, "mechanistic" application
of statutes of limitations would at times
inflict obvious and unnecessary harm upon
individual plaintiffs without advancing these
legislative purposes. On numerous occasions
we have found "such particular circumstances
as to dictate not the harsh approach of
literally applying the statute of limitations
but the application of the more equitable and
countervailing considerations of individual
justice." A "just accommodation" of
individual justice and public policy requires
that in each case the equitable claims of
opposing parties must be identified,
evaluated and weighed. Whenever dismissal
would not further the Legislature's
objectives in prescribing the limitation, the
plaintiff should be given an opportunity to
assert [her] claim.
[Galligan v. Westfield Centre Services, Inc.,
82 N.J. 188, 192-93 (1980) (citations
omitted)(emphasis added).]
A determination on the equities of applying a statute of
limitations is "within the province of the court." Lopez, supra,
62 N.J. at 274. The equities in this case, based on the evidence
presented and McCartney's duties as a police officer, weigh
heavily in favor of the plaintiff.
The doctrine of equitable tolling is a basis for reinstating
plaintiff's claims against McCartney. Equitable tolling may be
applied where:
the claimant has actively pursued his
judicial remedies by filing a defective
pleading during the statutory period, or
where the complainant has been induced or
tricked by his adversary's misconduct into
allowing the filing deadline to pass.
[Irwin v. Dept. of Veterans Affairs,
498 U.S. 89, 96,
111 S. Ct. 453, 458,
112 L. Ed.2d 435, 444 (1990)(footnote omitted)(emphasis
added).]
Under this doctrine, courts have allowed plaintiffs to continue
litigating lawsuits filed after the statute of limitations has
elapsed. See Miller v. Beneficial Management Corp.,
977 F.2d 834, 845 (3rd Cir. 1992).
A court that applied the doctrine of equitable tolling when
a plaintiff attempted to sue police officers for federal civil
rights violations after those officers concealed their identities
and were not revealed until after the statute of limitations had
run noted the following:
Yet, to apply the statutes of limitation
blindly in this case would have the
inevitable effect of encouraging improper
conduct. Those who may benefit from a
statute of limitation can have no part in
preventing a potential claimant from learning
their identity. Of course, unless under an
affirmative duty, they need not come forward
voluntarily, unasked. They may hide in the
darkness caused by the potential plaintiff's
lack of knowledge of their identify. But
they cannot, through acts or omissions, in
any way perpetuate the darkness.
[Davis v. Frapolly,
742 F. Supp. 971, 975
(N.D. Ill. 1990).]
Moreover, McCartney's assertion of the statute of
limitations under these circumstances is to use it "as a sword
rather than a shield." State v. United States Steel Corp.,
22 N.J. 341, 359 (1956). Statutes of limitation are primarily a
shield to protect a defendant from having to defend stale claims.
They should not be used as a sword by a defendant whose conduct
contributed to the expiration of the statutory period. Here,
McCartney's omissions delayed plaintiff from identifying him as
the perpetrator. Courts "[have] often rejected a limitations
defense where defendant has contributed to the delay." Zaccardi,
supra, 88 N.J. at 256. Allowing plaintiff to pursue her claims
properly balances the equities presented under these
circumstances.
As previously stated, it is clear from the record that
McCartney acted in such a way to prevent plaintiff from
ascertaining his identity. His failure to report his criminal
actions, in light of his clear duty as a police officer to do so,
hindered plaintiff from filing suit against him in a timely
manner. As a result, we hold that equitable tolling applies in
this case. The statute of limitations will not bar plaintiff's
claims against McCartney.
Last, we address plaintiff's appeal of the denial of her motion to amend her complaint to assert a claim for malpractice against Renaud. In denying plaintiff's motion, the judge stated, in part:
This Court is of the opinion that no amendments can or should be made until the Appellate Division renders its decision. At that point, plaintiff's cause of action will accrue. There is no prejudice to plaintiff if her motion is denied at this time. Moreover, for all practical purposes, plaintiff has no complaint at this time. The appeal was from a final judgment dismissing plaintiff's claim with prejudice against the responsible parties. Until the Appellate Division reinstates the complaint, if it so
chooses to do so, there can be no amendment
of the complaint.
For the foregoing reasons, plaintiff's
motion is hereby denied.
In light of our holding reversing the summary judgment in
favor of McCartney, we reverse the order denying plaintiff's
motion to amend her complaint and remand for reconsideration.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
Footnote: 1 The denial of plaintiff's motion to amend her complaint
to assert a legal malpractice claim against Ann L. Renaud and
Ramp & Renaud is the subject of a separate appeal under Docket
No. 5211-95T1. We decide that appeal in this opinion.
Footnote: 2 Plaintiff could have filed suit against fictitious
municipalities, pursuant to Rule 4:26-4, within the statute of
limitations under N.J.S.A. 59:8-8. This rule would allow
plaintiff to amend her complaint at a later date to name
Mountainside as a defendant even after the statute
of limitations had elapsed. See Farrell v. Votator Div. of
Chemetron Corp.,
62 N.J. 111, 120-23 (1973). The fictitious
pleading rule, however, does not affect the notice of claim
requirement under the TCA.
Footnote: 3 N.J.S.A. 59:8-3 was amended by L. 1994, c. 49, §2,
effective June 23, 1994, to bar claims against public employees
when a litigant does not comply with the TCA's procedure.