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As first reported here on FAA News, a lawsuit filed back in May in Ocean County Superior Court charges that a guardrail that was once removed from Cedar Bridge Avenue in Lakewood is heavily to blame for a traffic crash fatality last summer.

Ocean County is fighting strongly to get dismissed from the lawsuit. The Lakewood Housing Authority has now also filed a Motion to get dismissed from the case. Their arguments are pretty straightforward and based on New Jersey case law. Curiously, Lakewood Township has filed a standard Answer to the lawsuit, but not a motion to get dismissed.

Why is the Township not working feverishly to get immediately dismissed from the lawsuit?

Is the answer perhaps, that the Township only fights to gets cases dismissed when Lakewood developers stand to gain from the dismissals (as in Lake Terrace and Bnos Brocha)??

The suit involves a fatal traffic crash that took place on the evening of July 5, 2021, on Cedarbridge Avenue at Clover Street.

According to the Lakewood Township Police Department report, a multi-agency investigation revealed that a juvenile driving with 2 passengers - one being a juvenile - eastbound on Cedarbridge Avenue approached the cross street of Clover Street at a high rate of speed. An unidentified vehicle was in the left-hand turn lane attempting to make a left-hand turn onto Clover Street. The juvenile operator attempted to navigate around that vehicle and lost control of the vehicle. The vehicle left the roadway and struck the face of a building. The vehicle overturned and came to an uncontrolled rest on its hood. The juvenile passenger, who was seated in the rear of the vehicle, was ejected from the vehicle and was pronounced deceased at the scene.

A lawsuit now filed by the deceased juvenile's family charges that there used to be a guardrail on the side of this road, and its removal is heavily to blame for this fatality.

Guardrails are protective devices for redirecting errant vehicles from colliding with an obstruction, and they are designed to reduce the severity of crashes.

Prior to redevelopment of the adjacent Chambers Crescent apartments, there was a guardrail along this section of Cedar Bridge Avenue, road design maps on file with Ocean County show.

The Chambers Crescent apartments were redeveloped by contractors working for the Lakewood Housing Authority, and at some during the construction process, the contractors removed the guardrail. The Ocean County Engineering Department typically inspects construction sites along county-owned roads such as Cedar Bridge Avenue to ensure that all existing road infrastructure is replaced. Somehow, in this particular case, the County was unaware that the guardrail was removed, and failed to oversee its replacement, the lawsuit charges, records show that county officials have confirmed.

Between 2019 and August 20, 2021, there were over 100 reportable motor vehicle crashes on this section of Cedar Bridge Avenue, police records show.

The lawsuit names Lakewood Township, Ocean County Engineering Department, as well as the Lakewood Housing Authority and their co-developers and construction contractors, as well as Maser Consulting (the engineer for the housing project) as defendants to the suit.

To ensure that roadside safety features are capable of performing their intended functions, periodic review, inspection, and maintenance of traffic barriers are necessary and should be a part of the normal maintenance function, and inspection should also be triggered by a crash report indicating a high severity or incidence of run-off-road crashes, the lawsuit contends.

The suit seeks "compensatory damages for conscious pain and suffering, wrongful death, survivorship damages, and past and future economic damages together with interest, attorney's fees, and costs of suit".

Although the suit was originally filed back in May, it was not formally served upon the various defendants until the end of July.

Immediately, Maser Consulting, the engineer for the housing project, settled out of court and was dismissed without prejudice.

As previously reported here on FAA News, Ocean County has filed a Motion seeking to get them dismissed from the case, with prejudice, on the basis that the Plaintiff did not properly serve them with a Notice of Tort Claim prior to the filing of the lawsuit.

The New Jersey Tort Claims Act (TCA) provides that before any Tort Claim litigation against a governing entity begins, a potential plaintiff must - within 90 days of the accident - comply with the statutory requirements of notice to the proper governing entity regarding the claim.

Under the Act, a plaintiff is required to prove that public property owned and operated by the government is in a dangerous condition, which, when used by a foreseeable person in a reasonable manner, was the cause of the plaintiff’s injuries which resulted in a permanent loss of a bodily function.

Once proper notice of the Tort Claim is provided, the government entity is allowed at least a six month period to review the claim before a lawsuit can be filed. 

The lawsuit names as a defendant "Ocean County Engineering Department". The county's motion for dismissal notes that this case is improperly pled as the "Ocean County Engineering Department" is not a legal entity separate and apart from from the County of Ocean, rather, it is simply a department within the County of Ocean.

Inasmuch as this is a case against the County of Ocean which is a governing entity, the Plaintiff was required to timely and properly serve a Notice of Tort Claim upon the correct governing entity prior to the filing of the lawsuit. The county's motion asserts that no Notice of Tort Claim was properly served.

As part of providing service of the lawsuit, the Plaintiff provided Certified Mail green card receipts that purport to show that they did indeed mail Tort Claim notices to the County on August 16, 2021 (which would have satisfied the 90 day post-crash, 6 months prior to filing suit notice rule).

These notices were sent to "Ocean County, 119 Hooper Avenue, Attn: Administrator of Tort Claims" as well as "Ocean County Prosecutor's Office, 119 Hooper Avenue, Attn: Administrator of Tort Claims".

This is the address of the Ocean County Prosecutor's Office, which is a separate public agency. The County of Ocean's official address is the administrative building located at 101 Hooper Avenue. The person authorized to accept service is Michelle Gunter, clerk of the county, and neither she nor Antoinette DePaola, Senior Management Assistant for Ocean County Risk Management Division ever received this Tort Claim notice, the moving documents claim.

It is now well past the 90 day limit and therefore, even if the Plaintiff were to serve new Tort Claim notices now, their claim would be moot, Attorney Mary Jane Lidaka wrote to Ocean County Superior Court Judge Mark Troncone.

The Plaintiff's have responded with Opposition to the Motion, essentially agreeing that they did mail the Tort Claims Notice to the Prosecutor's Office, but that "the Prosecutor's Office should have then forwarded it to that County's Administration office".

Judge Troncone has scheduled oral arguments on the motion for this Friday, September 23rd.

The Lakewood Housing Authority (LHA) has now also filed a Motion to get dismissed with prejudice from the case.

Somerville Attorneys Richard Grace and Richard Gantner wrote in their brief that the Plaintiff's did send LHA a Tort Claims Act Notice, however, it was only received after the 90 days deadline. Additionally, the notice does not state "a general description of the injury, damage or loss incurred ... and the amount claimed as of that date... together with the basis of computation of the amount claimed" as is required by law. The Plaintiff's also did not timely petition the court for an extension to the 90 days timeline.

Additionally, the attorneys note while case law substantiates that "motions to dismiss should be approached with great caution and should only be granted in the rarest of instances", at the same time case law only indicates that "a defendant is as entitled to be speedily rid of baseless claims as a plaintiff is entitled to raise them", and "a motion to dismiss should be granted if even a generous reading of the allegations does not reveal a legal basis for recovery".

The attorneys assert that the Plaintiff's failed to make a specific claim against LHA because, while the lawsuit does claim that had there been a guardrail in place, the deceased may not have been killed, the lawsuit does not - and can not - satisfactorily make a claim that LHA had any responsibility to maintain the roadway. Additionally, instead of naming specific defendants and their specific responsibility which they neglected, the lawsuit only vaguely names "the Township, County, LHA, and the State of New Jersey" collectively and claims they all "had a nondelegable duty to make sure the inherently dangerous hazard at issue did not exist and was not negligently removed".

Finally, LHA asserts that the New Jersey Appellate Division has specifically found that the task of ensuring a "heightened standard of care" towards people who are on one's property, and liability towards a person who has been injured because of a dangerous condition on private property only applies to "invitees". As Plaintiff's admit, the death was caused by their own car crash, and therefore "the decedent was not an invitee".

The Plaintiff has not yet submitted Opposition to this Motion. As of now, Judge Troncone is scheduled to release a decision in another 2 weeks. However, as the Plaintiff is likely to submit Opposition, Judge Troncone will likely schedule oral arguments prior to releasing any decision.

The "invitee" argument is pretty straightforward, especially as Cedar Bridge Avenue is owned by Ocean County and not by Lakewood Township. Lakewood Township has submitted an Answer to the lawsuit, indicating it is ok with the case continuing - at taxpayer expense.

Why is the Township not working feverishly to get immediately dismissed from the lawsuit as they are working on the Lake Terrace and Bnos Brocha lawsuits?

Seems that the Township only fights strongly in court when they want to help Lakewood developers...

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Anonymous said...

By not seeking dismissal, the Township is paving the path to costly litigation and permitting the Litigant's (who have zero to lose) to demand a "settlement". It's insane that the Township is fighting vehemently for the Court to dismiss lawsuits that affect developers while at the same time allowing the taxpayers to get bogged down by the lawsuit.

Anonymous said...

The Township can easily make the exact same arguments. They can even copy and paste from LHA, especially as the Township does not own Cedar Bridge Avenue and the responsibility to ensure the guardrail was replaced was under county jurisdiction - the Township is most certainly not responsible.

Shmiel Feldman said...

I find it quite concerning that Maser Consultants very quietly settled their portion of the lawsuit. Maser advertises heavily in Lakewood and they are the engineers for Lakewood Township's Vine Street Extension project which is in close proximity to this intersection and will include guardrails.