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Protracted Prosecutorial Probe Into Death Tolls Tort Claims Notice Date

December 9, 2010 Leave a comment

Protracted Prosecutorial Probe Into Death Tolls Tort Claims Notice Date

By Michael Booth

New Jersey Law Journal

December 8, 2010

An East Orange woman who waited more than a year to file a notice of claim against municipal police and a state hospital over her father’s death will be allowed to proceed despite the Tort Claims Act’s 90-day limitations period.

An Appellate Division panel ruled Tuesday that the delay was the result of extraordinary circumstances, namely, waiting for the Essex County Prosecutor’s Office to complete its investigation into the man’s death.

The plaintiff, Lavonne Johnson, is the administrator of the estate of Danny Garry, who died on July 24, 2008, at the University of Medicine and Dentistry of New Jersey, two days after the car in which he was a passenger was struck by an East Orange police car responding to an emergency call.

Johnson learned from her aunt that day that her father had died but did not know all of the facts behind what caused the death. She first went to the East Orange police, who told her that Garry’s death was being investigated by the Essex County Prosecutor’s Office.

Eventually she was questioned by Det. Howard Johnson of the prosecutor’s office, who indicated in his questions that investigators were looking into the possibility that Garry’s death might have been caused by his girlfriend pushing him down a flight of steps.

The detective said he could not discuss the case with her any further and provided no additional information.

On June 9, 2009, the detective told Johnson the report into Garry’s death was complete and that if she wanted to review it she should retain an attorney. Johnson did so and the attorney, Ronald Ricci, filed a request for the report shortly thereafter. The prosecutor’s office released the report to Ricci on Sept. 9, 2009.

The report said the car in which Garry was riding was struck by an East Orange police car on July 22, 2008, and that Garry was treated and released from University Hospital. Johnson had been told by her aunt that Garry might have died at East Orange General Hospital.

Garry had difficulty walking after being released and returned to University Hospital on July 24. He died that day from complications of a ruptured spleen that had gone undetected.

On Oct. 1, 2009, Ricci asked for permission to file a late notice of claim. Essex County Superior Court Judge Claude Coleman denied the request, saying Johnson was aware of her father’s accident, that she should have exercised reasonable diligence in trying to find out the circumstances behind the accident, and that there were no extraordinary circumstances to warrant filing a late claim. Johnson then appealed.

Appellate Division Judges Anthony Parrillo and Joseph Yannotti, in Johnson v. East Orange Police Department, A-1793-09, said Johnson did act reasonably and allowed her to file a late notice of claim against the police department and the hospital.

“We are convinced that the trial court erred by refusing to permit plaintiff to file a late notice of claim…” the judges said. “In our view, plaintiff acted with reasonable diligence in endeavoring to obtain relevant facts about the accident.”

It was not until her attorney obtained the report that she learned that the East Orange police were involved and that there could be a claim, and that her father had been treated and released from University Hospital, they said.

“Plaintiff acted reasonably in waiting for the completion of the ECPO’s investigation before retaining an attorney,” Parrillo and Yannotti said. “We are therefore convinced that, under the circumstances, the discovery rule tolled the time for accrual of any claims plaintiff may have against defendants.”

Ricci, of Woodland Park’s Ricci & Fava, was away from his office and could not be reached for comment. Assistant East Orange Corporation Counsel Kevin Harris did not return a telephone call seeking comment.

Lee Moore, a spokesman for the Division of Law, which represented UMDNJ, said officials there would not comment because the matter is still being litigated.