September 23, 2019
New Jersey’s Appellate Division issued an unpublished decision in Antoinette Marra v. Hopatcong Senior Center, et al., holding that Plaintiff, Antoinette Marra’s significant physical injuries and resulting depression did not constitute extraordinary circumstances excusing the filing of a late notice of claim under the Tort Claims Act. Despite injuries that left Plaintiff depressed and bedridden for two months in a nursing home, the Appellate Division found that Plaintiff’s medical issues were not so “severe, debilitating, or uncommon” so as to excuse her delay in timely filing a notice of tort claim.
On September 26, 2017 Plaintiff tripped and fell on property owned by defendants, Hopatcong Senior Center and the Borough of Hopatcong. She suffered a broken arm and fractured hip and underwent a hip replacement surgery. Following the surgery she was transferred to a nursing home and remained admitted at the nursing home for two months. She was discharged from the nursing home on November 25, 2017 to begin in-home nursing care. She also suffered from depression and claimed that her physical and mental health issues left her unable to timely pursue her personal injury claims. Plaintiff filed a complaint and a motion for leave to file a late notice of tort claim against the Defendants on May 18, 2018, four and a half months after the ninety (90) day deadline for filing a notice of tort claim, which was December 26, 2017.
In response to Plaintiff’s motion, the public entity defendants filed a cross-motion to dismiss Plaintiff’s complaint for the late filing of the notice of tort claim. The trial court found that Plaintiff suffered from numerous health issues after her hip fracture and surgery that precluded her ability to timely pursue her claims and granted Plaintiff’s motion for leave to file a late notice of tort claim, prompting this appeal.
Under the Tort Claims Act, a plaintiff that seeks to bring an action against a public entity must serve a written notice of claim on the public entity within ninety (90) days of the accrual of the cause of action. N.J.S.A. 59:8-8. After expiration of the ninety-day deadline the court may, in its discretion, permit the filing of a notice of claim up a year after the cause of action accrued if extraordinary circumstances excuse the delay and the public entity would not be substantially prejudiced. N.J.S.A. 59:8-9; Lowe v. Zarghami, 158 N.J. 606, 624-625 (1999). In determining whether a medical condition constitutes extraordinary circumstances courts look to “the ‘severity of the medical condition and the consequential impact’ on the claimant’s ability to pursue a claim.” See D.D. v. Univ. of Med. & Denistry of N.J., 213 N.J. 130, 147 (2013).
Here, the Appellate Division determined that Plaintiff did not suffer from any medical condition so severe and debilitating that it impacted her ability to timely pursue her claims against the Defendants. Although she was bedridden for two months after surgery and suffered from depression the Appellate Division found that her condition did not compromise her cognitive ability. The Court noted that despite her medical issues Plaintiff had ample opportunity to call an attorney or seek assistance from her caregivers or family members to timely pursue her claims. Accordingly, the Appellate Division held that Plaintiff failed to demonstrate extraordinary circumstances reversing the trial court’s order and remanded the matter to the trial court for entry of an order dismissing the complaint for failure to file a timely notice of claim.
This matter is instructive as to how New Jersey courts treat late notices of tort claims against public entities. For more information on this topic, please contact MKC&I’s Derrick Grant at dgrant@mcgivneyandkluger.com or at (973) 822-1110.