A Very Important Ruling About Late Notices of Tort Claim

D.D. v. University of Medicine & Dentistry of New Jersey, 213 N.J. 130 (2013).  Under the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 et seq. (“TCA”), no lawsuit can be filed against a public entity unless the plaintiff has first given notice of his or her claim.  Ordinarily, the notice of tort claim must be filed within 90 days of the accrual of a claim.  However, the TCA affords an exception in “extraordinary circumstances,” under which a plaintiff may file the notice of tort claim within one year of the accrual of the claim, provided, however, that the public entity is not “substantially prejudiced” by that extension.  The “extraordinary circumstances” standard replaced an earlier standard of “sufficient reasons” by virtue of a 1994 amendment to the TCA.

In this case, the issue was the allegedly unauthorized release of plaintiff’s private health information.  Plaintiff was late in filing a notice of tort claim.  She offered as “extraordinary circumstances” a combination of a number of medical conditions, the failure of her attorney to act timely even though he had promised to “take care of everything,” and the fact that, at a meeting with representatives of defendants, statements were made and assurances were given that led plaintiff to believe that the matter could be handled without litigation.

The Law Division found extraordinary circumstances, and a 2-1 majority of the Appellate Division affirmed.  The Supreme Court, however, on defendants’ appeal as of right due to the dissent in the Appellate Division, voted 3-2 to reverse.  Justice Hoens wrote the majority opinion.  Chief Justice Rabner and Justice Patterson were the other Justices in the majority.  The dissenting opinion was by Justice Lavecchia, who was joined by Justice Albin.

The majority ruled that plaintiff’s medical conditions did not constitute extraordinary circumstances.  Prior Appellate Division caselaw had held that “medical conditions meet the extraordinary circumstances standard if they are severe or debilitating.”  Here, plaintiff’s medical conditions were merely “vaguely described complaints of stress and emotional strain,” such as “absolute shock” and anxiety resulting from the fact that her personal health information had made its way onto the internet.  Plaintiff had not sought care for those conditions.  Moreover, she was fully able to, and did, recognize that she had a potential claim and proceed to advance it.  She “corresponded with those she thought were responsible, found an attorney, met with him, retained him, met personally with representatives of defendants, provided more information to her lawyer in response to his request, and then placed at least ten telephone calls to him in her efforts to proceed.”  In short, her medical conditions did not prevent her from filing a timely notice of claim.

Nor did the failure of her attorney to follow through constitute extraordinary circumstances.  “Although we do not suggest that malpractice is usual, expected, anticipated or ordinary in any sense, we cannot agree that an attorney’s inattention to a file, or even ignorance of the law, equates with extraordinary circumstances for tort claims purposes.”  If attorney inattention or even malpractice sufficed to allow a late notice of tort claim, that would essentially contravene the Legislature’s decision to raise the standard from one in which negligence would suffice to one that requires “extraordinary circumstances,” the plain language of the amended TCA.

Plaintiff was not without a remedy, the majority said.  She could sue her lawyer for malpractice.

Finally, plaintiff contended that she had given defendants enough information in their face-to-face meeting, which occurred within the 90-day period, to satisfy the statutory notice requirement under the doctrine of substantial compliance.  The majority looked to the plain language of the TCA, which requires “written notice,” and cited Appellate Division caselaw holding that “[o]ral notice, even when it contains the elements required by [the TCA], does not constitute substantial compliance.”

The dissenters gave two reasons for their views.  First, the majority’s rejection of plaintiff’s “extraordinary circumstances” argument gave that term too restrictive an interpretation.  Plaintiff’s lateness was not her fault, but that of her attorney, “who in effect abandoned her while she was in a psychologically debilitated state.”  Defendants knew about her claim as a result of their face-to-face meeting, so defendants were not prejudiced by the late notice.  The dissenters believed that the majority had improperly failed to view all the circumstances together, but had instead compartmentalized them, finding each circumstance individually insufficient to constitute extraordinary circumstances when, together, they did reach that level, in the dissenters’ view.

Secondly, the Law Division had found extraordinary circumstances, and the abuse of discretion standard governed review of that decision.  In effect, the dissenters said, the majority had substituted its own views instead of deferring to the discretion of the Law Division.  The dissent quoted Lowe v. Zarghami, 158 N.J. 606 (1999), which had stated that courts should review “more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.”

The majority’s ruling may portend a reduced willingness to allow late notices of tort claim, though this one 3-2 decision by the Supreme Court, in a case where the Appellate Division split 2-1 in the other direction, may not be enough to say that the Court is moving in a more strict direction.  Nonetheless, this opinion is one on which public entity defendants will strongly rely, and one that plaintiffs must seek to surmount, in future cases.