A plaintiff bringing an action against a public entity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., is required to serve a pre-suit notice of any such claim within ninety days of the claim’s accrual. N.J.S.A. 59:8-8. Failure to timely file a notice of tort claim is fatal to a claim, with limited exceptions. However, courts may extend the time for a claimant to serve a late notice of tort claim for up to twelve months from the claim’s accrual, only upon a showing of extraordinary circumstances justifying why the notice could not have been issued within ninety days. N.J.S.A. 59:8-9. The purpose of this stringent notice requirement is to expedite incident investigation in furtherance of pre-litigation settlement, and to allow the public entity to prepare a colorable defense. Wood v. County of Burlington, 302 N.J. Super. 371 (App. Div. 1997).
Notices of claim must contain certain types of information, including: (a) the name and address of the claimant and intended recipient of the claim; (b) the “date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;” (c) a “general description of the injury, damage or loss incurred so far” at the time of filing; (d) the “name or names of the public entity, employee or employees causing the injury, damage or loss, if known;” and (e) the “amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim.” N.J.S.A. 59:8-4. In addition, public entities may adopt forms specifying information required to be contained in claims filed against the entity or its employees. N.J.S.A. 59:8-6. In a recent unpublished decision in the matter of Gartenberg v. City of Hackensack, No. A-3655-19, 2021 N.J. Super. Unpub. LEXIS 167, 171 (Super. Ct. App. Div. Oct. 25, 2021), New Jersey’s Appellate Division explored the potential consequences of a claimant’s failure to complete a municipality’s form, when they had otherwise complied with the notice provisions of the Tort Claims Act.
Public entities have discretion over the information that they will require on their specialized notice of claim forms, and claimants have a statutory obligation to complete the form within a “reasonable time.” Gartenberg, supra; see alsoNewberry v. Twp. of Pemberton, 319 N.J. Super. 671 (App. Div. 1999). New Jersey courts reject the argument that “if a public entity has adopted its own claim form …, the notice of claim cannot be deemed timely filed within the prescribed ninety-day period unless the adopted claim form is used.” Newberry, 319 N.J. Super. at 675. However, a municipality’s own completed form must be provided in a “reasonably timely” basis to a public entity’s request for the same.
Public entities are entitled to request significant additional information in their specialized forms, including medical reports, the identities and reports of expert witnesses, medical billing records and receipts, documentary evidence showing amounts of income lost, and anticipated costs of future medical treatment. N.J.S.A. 59:8-6. Public entities may also require a physical or mental examination by a physician, and for the inspection of “all appropriate records relating to [a] claim for liability and damages including, but not limited to, income tax returns, hospital records, medical records and employment records.” Id.
To meet the statute’s mandate, a claimant’s compliance with the prescribed notice requirements must be substantial, rather than strict. SeeLebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009) (“substantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notices of claims are required.”) To prove that a notice, while defective, is substantially compliant, the moving party must demonstrate:
(1) [a] lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of [a plaintiff’s] claim; and (5) a reasonable explanation why there was not strict compliance with the statute.
Gartenberg, supra, 2021 N.J. Super. Unpub. LEXIS 167 at **11-12 (citingFerreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003)).
The Appellate Division recently considered the implications of the substantial compliance doctrine in Gartenberg. There, plaintiff fell and injured himself while walking on a sidewalk in Hackensack, New Jersey. Thereafter, plaintiff timely filed a notice of claim with the municipal defendant, who in turn sent a letter to plaintiff’s counsel indicating that plaintiff’s claims would not be considered filed until he returned the City’s specialized form. Id.at **2-3. Plaintiff failed to complete the specialized form for approximately nine months, and the court found that no extraordinary circumstances were present to justify such delay. Id.On appeal, plaintiff argued that he “substantially compl[ied]” with the TCA’s notice requirements by submitting a notice of claim complying with N.J.S.A. 59:8-8’s basic requirements. Id. at *8.
In denying plaintiff’s appeal, the court reasoned that production of all “material information” in the notice does not equate to substantial compliance with the notice provisions set forth in the statute. Id. Moreover, the court determined that even if plaintiff’s initial notice substantially complied with the Act’s requirements, that notice failed to comport with the specialized form that the City of Hackensack was statutorily entitled to require plaintiff to complete. Id.at *12. Accordingly, the Appellate Division’s ruling confirms that in order for a claim under the Tort Claim Act to survive, a claimant must substantially comply with the standard requirements present in 59:8-4, and, if invoked through the issuance of a specialized claim form, the requirements of 59:8-6.
For more information on this decision, or on public entity liability generally, please contact Tom Emala in the firm’s Florham Park, New Jersey office. Special thanks to law clerk Janine Dayeh for her research and writing assistance with this article.