New Jersey’s Supreme Court recently decided the case of Pamela O’Donnell v. New Jersey Turnpike Authority, permitting the plaintiff’s case against the public entity Turnpike Authority (“NJTA”) to proceed, even though the plaintiff had not formally served the NJTA with a Notice of Tort Claim.
Under the New Jersey Tort Claims Act, a plaintiff bringing a claim for personal injury or property damage occasioned by the negligence of a public entity or employee must file a “Notice of Tort Claim” with that public entity within ninety (90) days of the occurrence. N.J.S.A. 59:8-8. Failure to do so may be fatal to the cause of action. However, N.J.S.A. 59:8-9 allows a claimant to apply to a court for permission to file a late notice of claim, if the claimant can show that extraordinary circumstances justify the late filing, and that the public entity will not sustain a substantial prejudice.
The action arose from the deaths of the plaintiff’s husband and five-year-old daughter following a multi-vehicle accident on the New Jersey Turnpike. Within ninety days of the accident, the plaintiff’s attorney served a “Notice of Tort Claim” on New Jersey’s Bureau of Risk Management, in which the Turnpike Authority was named as the responsible state agency. The notice of claim further set forth the plaintiff’s central allegation, that the NJTA’s failure to have safety barriers to separate opposing lanes of traffic ultimately resulted in the deaths of the plaintiff’s husband and daughter. Plaintiff did not serve the NJTA within ninety days – although another driver involved in the accident did so, describing the circumstances surrounding the collisions, naming the involving parties, and alleging the same theory of liability against the NJTA as O’Donnell ultimately did.
An amended notice of claim was finally served on the NJTA one hundred and ninety-seven (197) days after the accident. Two days later, the plaintiff brought suit. The NJTA made a motion to dismiss, contending that service of the notice of claim was not made within ninety-days as required under N.J.S.A. 59:8-8; plaintiffs cross-moved for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The trial court sided with the plaintiff, finding that she had failed to serve timely a notice of claim on the NJTA, and that service on the State of New Jersey’s Bureau of Risk Management did not constitute service on the NJTA. Nevertheless, the trial court agreed that the plaintiff had demonstrated extraordinary circumstances, and permitted the filing of the claim.
The Appellate Division reversed, noting that there were no obstacles preventing the plaintiff (or her first attorney) from identifying the NJTA as the responsible agency, or as the proper entity to be served, and barred the late filing of the notice, finding that the remedial service of an amended notice on the NJTA did not constitute an “extraordinary circumstance.”
The Supreme Court ultimately ruled in plaintiff’s favor. It found that, although service of a notice of claim on the State of New Jersey was not sufficient to serve the State; that the NJTA did not receive plaintiff’s notice of tort claim until six and a half months from the accident; and that attorney negligence, in and of itself, does not surpass the extraordinary circumstances threshold, that the proofs beyond the error of plaintiff’s attorney, in their totality, demonstrated such extraordinary circumstances.
Importantly, the Court found that the plaintiff herself did not sit on her rights. Well within ninety days from the accident, she retained an attorney and diligently sought to pursue her claims against the NJTA. The notice of claim prepared by that attorney adequately described the date, location, and circumstances surrounding the three-vehicle fatal accident, and listed the NJTA as the responsible agency. Moreover, although the NJTA did not receive the notice within the ninety-day window, it did receive a nearly identical notice of claim from another claimant arising from the exact same accident, alleging the same negligence as to the NJTA. The police report was attached to the notice of claim, which made clear that plaintiff’s husband and daughter were killed in the action. Thus, analyzing both of the notices of tort claim, “in combination with the circumstances surrounding this terrible accident,” the Court found that the NJTA was notified of its potential liability within ninety days of the accident. Further, the Appellate Division had rendered its decision without notice of the other notice of claim.
The O’Donnell decision does not overturn existing rules of law – but shows how the courts can find “extraordinary circumstances,” and allow late notices of tort claim to be deemed timely, especially if the public entity knew, or should have known, about the claim through other means (like notice of another, related claim!).