“Catastrophic, Life-Altering Injuries” Constituted “Extraordinary Circumstances” to Permit Late Notice of Tort Claim

Jeffrey v. State of New Jersey, ___ N.J. Super. ___ (App. Div. 2021). This opinion by Judge Fuentes involved the ability of a tort claimant against a public entity (here, the State of New Jersey and Rutgers Biomedical and Health Sciences, whose negligence plaintiff alleged may have caused or aggravated injuries he suffered in a one-vehicle motorcycle accident) to file a late notice of claim. The Tort Claims Act, N.J.S.A. 59:1-1 et seq. (“TCA”), requires that, in general, one who wishes to sue a public entity serve a notice of tort claim within 90 days of the accrual of the claim. However, as Judge Fuentes noted, the TCA affords the Law Division the discretion “to grant leave to file a notice of claim beyond that ninety-day timeframe, provided he or she shows by affidavit: (1) ‘extraordinary circumstances’ for his or her failure to file a timely notice of claim and (2) the public entity or employees involved have not been ‘substantially prejudiced’ by the plaintiff’s tardiness.”

Here, the Law Division denied plaintiff leave to file a late notice of tort claim. The judge ruled that plaintiff had not exercise sufficient due diligence to identify the public entities involved in his medical treatment or the emergency medical technicians who might have exacerbated his injuries by improperly placing him in the ambulance that took him to the hospital. Thus, plaintiff did not meet the “extraordinary circumstances” test.

The Appellate Division disagreed. Judge Fuentes found that the Law Division had erred in using the date of the accident, April 9, 2017, as the accrual date that started the 90-day clock. Instead, due to the severe nature of plaintiff’s injuries, the proper accrual date was November 15, 2017, the date that plaintiff retained an attorney.

The Appellate Division described plaintiff’s injuries as a basis for concluding that his delay in retaining counsel was justified by extraordinary circumstances. He had “lost complete movement and sensation of his body. As described in his discharge summary from University Hospital, he suffered from ‘tetraplegia’ a medical term also known as quadriplegia, defined as a ‘complete paralysis of both the arms and legs that is usually due to injury.’ Using the medical terminology in his discharge summary, plaintiff has ‘no motor or sensory function,’ ‘no rectal tone,’ and requires a ‘Foley catheter in place for [a] neurogenic bladder.'”

Plaintiff underwent two months of inpatient rehabilitation. Judge Fuentes said that it “does not require psychiatric testimony to infer that plaintiff’s emotional state was, at the very least, extremely delicate and highly fragile. It would thus be beyond insensitive to impose a duty on plaintiff to seek legal advice through surrogates composed of family members or friends, during this life-altering adjustment period. We are certain the Legislature did not intend for the judiciary to construe the term ‘accrual’ in N.J.S.A. 59:8-8 in a manner that abandons all vestiges of basic human empathy.”

Plaintiff filed his late notice of tort claim just 35 days after the November 15, 2017 date that the Appellate Division found was the appropriate accrual date. Judge Fuentes held that the Law Division had abused its discretion in finding no extraordinary circumstances. Relying on S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107 (1977), he observed that cases where permission to file a late tort claim is denied warrant more scrutiny on appeal than cases where leave to file late is granted, and that “any doubts which may exist should be resolved in favor of the application” (emphasis by Judge Fuentes).

Here, “the traumatic ramifications of the catastrophic, life-altering injuries plaintiff suffered in this accident,” and “the emotional and psychological trauma plaintiff endured during” his recovery spoke for themselves. “It is self-evident that seeking an attorney to investigate the legal intricacies of a potential lawsuit was not among plaintiff’s most pressing concerns during these emotionally difficult times.”

Judge Fuentes ended his opinion as follows: “After he completed the two-month i[n]patient program at Kessler, plaintiff was required to confront and adjust to the physical limitations associated with living as a quadriplegic. Although this radical shift from a motorcyclist to a quadriplegic wheelchair user in no way diminishes the value and dignity of plaintiff’s life, the inherent difficulties associated with this new reality cannot be viewed as a barrier to deny plaintiff access to our civil courts. These facts are sufficient to constitute ‘extraordinary circumstances’ pursuant to N.J.S.A. 59:8-9. S.E.W. Friel Co., 73 N.J. at 122.” Accordingly, the Law Division’s decision was reversed.