ESTATE OF AUSTIN SILER VS. COUNTY OF OCEAN (L-0686-18, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5316-17T2

ESTATE OF AUSTIN SILER,

deceased, JENNIFER

ALBRECHT-SILER, and

SHANE SILER, individually,

Plaintiffs-Appellants,

v.

COUNTY OF OCEAN, OCEAN

COUNTY PROSECUTOR'S

OFFICE, STATE OF NEW

JERSEY, TOWNSHIP OF

BRICK, and BRICK TOWNSHIP

POLICE DEPARTMENT,

Defendants-Respondents.

Argued April 3, 2019 – Decided May 21, 2019

Before Judges Koblitz, Currier, and Mayer.

On appeal from Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-0686-18.

Michael K. Belostock argued the cause for appellants

(Aloia Law Firm, LLC, attorneys; Brian J. Aloia, on the

briefs).

Mathew B. Thompson argued the cause for respondent

County of Ocean and Ocean County Prosecutor's Office

(Berry Sahradnik Kotzas & Benson, attorneys; Mathew

B. Thompson, on the brief).

Kevin N. Starkey argued the cause for respondents

Township of Brick and Brick Township Police

Department (Starkey, Kelly, Kenneally, Cunningham &

Turnbach, attorneys; Kevin N. Starkey, on the brief).

Brett J. Haroldson, Deputy Attorney General, argued

the cause for respondent State of New Jersey (Gurbir S.

Grewal, Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Brett J.

Haroldson, on the brief).

PER CURIAM

Plaintiffs 1 appeal the May 17, 2018 order denying their motion for leave

to file a late notice of tort claim (NOC) under the New Jersey Tort Claims Act

(TCA), N.J.S.A. 59:1–1 to 12–3, and the June 28, 2018 order denying their

motion for reconsideration. Because plaintiffs did not demonstrate

extraordinary circumstances justifying the late filing of the NOC, we affirm.

On August 3, 2017, nineteen-year-old Austin was staying with friends in

Brick Township, New Jersey following a funeral service for his former youth

football coach. That evening, Austin and his friends went to the boardwalk and

1

Plaintiffs Jennifer Albrecht-Siler and Shane Siler are the parents of decedent

Austin Siler. We use their first names for clarity and also refer to them

collectively as "plaintiffs."

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then returned to one of the young men's homes (Brick residence) just before

midnight. For the next several hours they remained on the deck of the Brick

residence, where Austin consumed large quantities of multiple types of liquor

and beer. Austin became inebriated and was vomiting and incontinent.

At 2:53 a.m., one of Austin's friends made a video showing him sleeping

or unconscious in a chair on the deck. As the narrator is describing for Austin

the events that led to his inebriation, there is a noise resembling the locking or

unlocking of a vehicle. The camera moved toward the noise and a white light

can be seen. The narrator exclaims, "Cops are here. Fuck." The video abruptly

ends.

In statements made during the investigation of Austin's death, the friends

stated they carried Austin inside the home at approximately 4:00 a.m., where

they cleaned him up and put him on the couch. They did not mention the police

coming to the Brick residence.

When the young men woke up later that morning, they noticed Austin "did

not look good" and they drove him to the hospital, arriving at 7:30 a.m. Austin

was pronounced dead forty-five minutes later.

During the ensuing investigation into Austin's death by defendants Ocean

County Prosecutor's Office and Brick Township Police, they obtained Austin's

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cell phone and searched its contents. When the phone was released to Jennifer

a day or two after Austin's death,2 the prosecutor's office advised her there were

text messages on the phone pertaining to the events leading to her son's death.

When Jennifer turned on her son's phone, a text message appeared on the

"home screen" from Austin's friend, telling him what had occurred after he

passed out and the actions his friends had taken, such as cleaning him up and

putting him on the couch. After reading the text message on the phone, Jennifer

met with counsel, who reviewed the message in her presence. Two weeks later,

Jennifer retained counsel and his firm to represent plaintiffs in a wrongful death

action. Counsel contends the prosecutor's office requested he refrain from filing

a civil suit until the criminal investigation was completed. That investigation

concluded on November 15, 2017. No criminal charges were filed.

Plaintiffs' counsel filed an Open Public Records Act (OPRA) request

under N.J.S.A. 47:1A–1 to –13. In response, he received over 500 pages of

investigatory materials from Brick Township and Ocean County law

enforcement offices. There was no reference in any of the records of any law

2

The motion judge determined the phone was returned on either August 5 or 6,

2017.

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enforcement personnel responding to the Brick residence in the early morning

hours of August 4, 2017.

In preparing the wrongful death action complaint on January 25, 2018,

plaintiffs' counsel requested Jennifer provide him with a copy of the particular

text message they had previously reviewed on Austin's phone. When Jennifer

looked again at the message on the phone, she stated she noticed for the first

time "there was also a video." One of the friends had sent Austin the video by

text on August 4, 2017 at 8:33 a.m. It was directly below the text message

Jennifer and counsel had reviewed in August. Jennifer did not watch the video,

but sent it along with the text message to her counsel.

Plaintiffs' counsel certified that when he watched the video on January 25,

2018, he "became aware of the possibility that a law enforcement officer may

have responded to [the Brick residence] at approximately 2:53 a.m." on August

4, 2017. If a law enforcement officer had witnessed Austin intoxicated "to [a]

point near death," counsel believed that could expose the police department to

liability. As a result, he served NOCs on all defendants 3 the following day.

3

Collectively, the defendants are: the County of Ocean, Ocean County

Prosecutor's Office, State of New Jersey, Township of Brick, and Brick

Township Police Department.

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After Ocean County's claim administrator denied plaintiffs' claim as

untimely, counsel filed a motion for leave to file a late NOC under N.J.S.A.

59:8–9. During oral argument on the motion, plaintiffs' counsel asserted he had

diligently investigated the claim, and reviewed over 500 pages of records,

including photos and videos of Austin arriving at the hospital. The voluminous

materials did not mention any law enforcement involvement in the early hours

before Austin's death. Ocean County counsel acknowledged the diligent

investigation by plaintiffs' counsel, but also noted Jennifer had possessed

Austin's phone containing the video and text message from "day one." 4

In a written decision and order issued May 17, 2018, the motion judge

determined plaintiffs' claim accrued on the day of Austin's death – August 4,

2017. Therefore, the NOC had to be served by November 2, 2017, to comply

with the TCA's ninety-day statutory deadline. See N.J.S.A. 59:8–8.

Because the NOCs were untimely, the judge stated plaintiffs were required

to demonstrate "extraordinary circumstances" prevented the filing within the

statutory period. He noted that plaintiffs had to show "[t]he existence of a

4

The Ocean County Prosecutor's Office also opposed the motion. Defendants

Township of Brick and the State of New Jersey joined in the opposition, but did

not file their own papers.

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reasonably prompt and thorough investigation" in order to establish

"extraordinary circumstances." 5 In analyzing the presented facts, the judge

found law enforcement had returned Austin's cellphone to Jennifer before she

met with counsel on August 6, 2017. At that meeting, Jennifer and counsel

reviewed the phone together. Thereafter, Jennifer had possession and remained

in possession of Austin's phone for the next ninety days. As a result, the judge

denied plaintiffs' motion for leave to file a late NOC because "[t]he video was

discoverable upon a reasonably prompt, diligent and thorough investigation of

the entire contents of the phone that was in [Jennifer's] possession during the

ninety-day statutory window."

Plaintiffs subsequently moved for reconsideration, contending: 1) the

judge "overlooked [p]laintiffs' reasonable diligence in investigating the claims

and determining the identity of the tortfeasors;" 2) the judge failed to consider

controlling case law establishing the "extraordinary circumstances" standard;

and 3) the accrual date should have been tolled until November 15, 2018. The

trial judge denied this motion on June 28, 2018, reasoning that plaintiffs failed

"to demonstrate that the [c]ourt's decision on May 17, 2018 was 'based upon a

5

McDade v. Siazon, 208 N.J. 463, 478 (2011).

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palpably incorrect or irrational basis or that this [c]ourt either did not consider ,

or failed to appreciate the significance of the probative, competent evidence.'"6

On appeal, plaintiffs renew their arguments that they demonstrated

extraordinary circumstances sufficient to permit a late filing of the NOC and

that the cause of action against defendants did not accrue until law enforcement

authorities had completed the criminal investigation.

We review an order granting or denying a motion for leave to file a late

NOC under the TCA for an abuse of discretion. See D.D. v. Univ. of Med. &

Dentistry of N.J., 213 N.J. 130, 147 (2013); see also O'Donnell v. N.J. Tpk.

Auth., 236 N.J. 335, 344 (2019) (noting N.J.S.A. 59:8–9 leaves the

determination of whether a late notice may be filed to "the discretion of a judge

of the Superior Court").

The denial of a motion for reconsideration rests within the sound

discretion of the trial court. Fusco v. Bd. of Educ. of City of Newark, 349 N.J.

Super. 455, 462 (App. Div. 2002).

The TCA provides "broad but not absolute immunity for all public entities."

Jones v. Morey's Pier, Inc., 230 N.J. 142, 154 (2017) (quoting Marcinczyk v. N.J.

Police Training Comm'n, 203 N.J. 586, 597 (2010)). The TCA's "guiding principle"

6

See D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

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is that "immunity from tort liability is the general rule and liability is the exception."

Ibid. (quoting D.D., 213 N.J. at 134).

To accomplish this goal, the TCA "imposes strict requirements upon

litigants seeking to file claims against public entities." McDade, 208 N.J. at

468. N.J.S.A. 59:8–3 prescribes, "[n]o action shall be brought against a public

entity or public employee under this act unless the claim upon which it is based

shall have been presented" to the appropriate public entity in a written NOC.

See also N.J.S.A. 59:8–4 to –7. "A claim relating to a cause of action for death

. . . shall be presented . . . [no] later than the [ninetieth] day after accrual of the

cause of action." N.J.S.A. 59:8–8.

If a plaintiff misses the statutory ninety-day deadline, a NOC may still be

filed up to a year after the claim accrues, but only if "extraordinary

circumstances" excuse the delay and the public entity or employee would not be

"substantially prejudiced." Lowe v. Zarghami, 158 N.J. 606, 624–25 (1999);

see also O'Donnell, 236 N.J. at 345–46. "The phrase 'extraordinary

circumstances' was added to the statute in 1994" to "raise the bar for the filing

of late notice from a 'fairly permissive standard' to a 'more demanding' one."

Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe, 158 N.J. at

625). The TCA, however, does not define "extraordinary circumstances," and

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courts must determine, on a case-by-case basis, whether such "extraordinary

circumstances" exist based on the facts and context presented. Lowe, 158 N.J.

at 626.

As the motion judge noted, a court must "focus[] on the reasonable

diligence of the plaintiff in investigating the claim and determining the identity

of the tortfeasor." McDade, 208 N.J. at 477. Plaintiffs assert they were diligent

and point to the request for and review of the voluminous investigation records.

We cannot disagree that counsel was diligently representing plaintiffs in pursuit

of the wrongful death claim. However, the factual information regarding a

different cause of action – the potential liability of law enforcement – was

immediately available to them as the phone containing that information was i n

their possession a day or two after Austin's death.

Law enforcement informed Jennifer there was information on Austin's

phone regarding the events leading to Austin's death. Jennifer looked at the text

messages. She then met with counsel two days after her son's death and showed

him the text message sent on August 4, 2017 at 8:27 a.m. That message, sent

from one of the friends, contains details about the early morning hours, and the

actions the young men took regarding Austin. The video is the next message,

marked as "received" at 8:33 a.m.

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Because plaintiffs were always in possession of the phone containing

information that might have led to an additional cause of action, they cannot

demonstrate extraordinary circumstances. A reasonable person exercising

ordinary diligence would have watched the video after reading the text

messages. The video was clearly discoverable within the statutory period.

Plaintiffs also contend the claim did not accrue until November 15, 2017,

the day they were informed of the conclusion of the criminal investigation.

Counsel argues the prosecutor's office instructed him not to conduct a civil

investigation or to file a civil action until the completion of the criminal

investigation. However, it was not an investigation to review the video on the

cellphone. In fact, counsel had already looked at the text messages.

Furthermore, filing a NOC is different from filing a civil lawsuit. The

notice requirement is intended to "expedite [an] investigation with the hope of

reaching a nonjudicial settlement and to allow the public entity prompt access

to information about the claim so that it may prepare a defense." Escalante v.

Twp. of Cinnaminson, Cinnaminson Mem'l Park, 283 N.J. Super. 244, 249 (App.

Div. 1995) (quoting Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533

(App. Div. 1989)). A plaintiff must wait six months after the service of the NOC

to file a suit. N.J.S.A. 59:8–8. The cause of action here accrued on either the

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day of Austin's death or the day or two later when Jennifer received her son's

phone. As the video was plainly visible to Jennifer and counsel within two days

of Austin's death, there are no grounds for invoking the discovery rule and

tolling the statutory period.

For the reasons stated, we are satisfied the judge did not abuse his

discretion in denying plaintiffs' motions for leave to file a late NOC and

reconsideration.

Affirmed.

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