“Extraordinary Circumstances” Justifying Late Notice of Tort Claim

Beyer v. Sea Bright Borough, 440 N.J. Super. 424 (App. Div. 2015).  The New Jersey Tort Claims Act, N.J.S.A. 59:8-8, requires anyone who wants to bring a tort claim against a public agency to file a notice of tort claim within 90 days of when his or her claim accrues.  Only in “extraordinary circumstances” will that timeframe be extended.  Today’s decision by Judge Waugh represents a relatively rare case in which extraordinary circumstances were found, seemingly properly so.

Plaintiff had been arrested by the Sea Bright police on August 10, 2013, and he allegedly suffered injuries inflicted by the police during that arrest.  His injuries began to manifest themselves three days later, while plaintiff was at a chemical-dependency rehabilitation facility in Florida.  Plaintiff returned to New Jersey on September 16, 2013 and retained an attorney, Clifford N. Kuhn, Jr., to represent him in connection with a potential claim against Sea Bright.  Kuhn requested discovery from Sea Bright.  On November 8, 2013, some of the requested discovery arrived at his office.

In the interim, however, in October 2013, Kuhn had been diagnosed with a relapse of lung cancer and underwent emergency surgery at Sloan Kettering.  In December 2013, Kuhn told plaintiff that he could no longer handle plaintiff’s case.  Kuhn died in early 2014.

Plaintiff retained new counsel on December 30, 2013.  On January 9, 2014, the new attorney filed a notice of tort claim.  Plaintiff simultaneously filed a motion for leave to file a late notice of claim.

Sea Bright did not claim that the late filing was prejudicial to the Borough.  Nonetheless, the Law Division denied the motion, equating the circumstances here, though ” tragic,” with “inattentiveness” of counsel.  The Law Division relied on D.D. v. University of Medicine & Dentistry of New Jersey, 213 N.J. 130 (2013), which had held that attorney inattention, or even malpractice, does not offer grounds for permitting late notices of claim.  After a motion for reconsideration was denied, plaintiff appealed.  The Appellate Division reversed, applying the abuse of discretion standard that governs decisions about late notices of tort claim.

Judge Waugh provided a detailed discussion of the history of the “extraordinary circumstances” requirement, which was added in 1994 to “raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one.”  What circumstances are “extraordinary” must be determined on a case-by-case basis.

The panel disagreed with the Law Division’s view of D.D.  “An attorney’s failure to act due to his or her serious incapacity or death are not routine matters, and should not be equated with mere inattention.”  The Appellate Division remanded the matter “for a plenary hearing to determine the facts surrounding Beyer’s failure to file a timely notice of claim and the extent to which it was the result of Kuhn’s grave illness, as opposed to the type of ‘inadvertence, negligence, inattentiveness or ignorance’ that was of concern to the Supreme Court in D.D.”