By: Jessica M. Anderson, Esq.
By way of background, under the New Jersey Tort Claims Act, a Plaintiff may not bring suit against a public entity or public employee unless the Plaintiff presented the public entity or public employee with a pre-suit notification of the claim. N.J.S.A. 59:8-3.
The Tort Claims Act provides for specific procedures by which a claim may be brought against a public entity. N.J.S.A. 59:8-4 sets forth the specific content that must be included in a notice of claim:
A claim shall be presented by the claimant or by a person acting on his behalf and shall include:
The name and post office address of the claimant;
The post-office address to which the person presenting the claim desires notices to be sent;
The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
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, together with the basis of computation of the amount claimed.
In order to preserve a claimant’s right to proceed, the notice of claim “must substantially comply with the statutory content requirements.” Newberry v. Township of Pemberton, 319 N.J. Super. 671, 679, 726 A.2d 321 (App. Div. 1999). Failure to assert a basis for the public entity’s liability is a clear invitation for the Court to dismiss a Plaintiff’s claim. Without a basis for liability, the public entity would be unable to promptly investigate the claim which is an essential reason for the notice requirement. Beauchamp v. Amedio, 164 N.J. 111, at 121-22 (2000).
In Newberry v. Township of Pemberton, Plaintiffs submitted a timely notice of claim to the Township, which stated that another vehicle ran a stop sign at an intersection and struck their vehicle. 319 N.J. Super. 671, 674 (App. Div. 1999). The Appellate Division affirmed the trial court’s decision dismissing Plaintiffs’ complaint, finding that a timely notice of tort claim which states that there has been a car accident causing injury, but failing to assert any basis for the public entity’s liability for that accident, does not substantially complied with the substantive requirements of N.J.S.A. 59:8-4. Similarly, in the unpublished decision Aguilar v. Essex County Dep’t of Parks & Rec., Plaintiff served a timely notice of claim alleging that he was injured when his right leg went into a depression in the area of the main exit of a County owned park. Aguilar v. Essex County Dep’t of Parks & Rec., 2009 N.J. Super. Unpub. LEXIS 1790, at 2-3 (App. Div. July 9, 2009). However, at Plaintiff’s deposition, Plaintiff testified that he fell in a different area of the park than what was indicated in his notice of tort claim. Id. at 4. The Appellate Division affirmed the trial court’s order dismissing Plaintiff’s Complaint finding that Plaintiff’s notice of claim was materially deficient and failed to meet the requirements of N.J.S.A. 59:8-4 because the notice did not accurately identify the place where the alleged fall occurred thus failing to assert a basis for the public entity’s liability that would permit the entity to promptly investigate the claim. Id. at 11-12.
Failure to assert a basis for the public entity’s liability is only one of numerous arguments that can be made as to why a timely received notice of tort claim is not statutorily compliant. In order to ensure that the proper defenses are being raised on the public entity’s behalf, the claim should be reviewed to determine that all available defenses are being asserted.