On September 26, 2017, Plaintiff Antoinette Marra tripped and fell on the property of defendant Hopatcong Senior Center and Borough of Hopatcong. She suffered a broken arm and fractured hip, which necessitated hip replacement surgery, among other injuries. The issue in Marra v. Hopatcong Senior Center, 2019 N.J. Super. Unpub. LEXIS 1685 (App. Div. July 26, 2019), was whether the plaintiff’s injuries constituted “extraordinary circumstances,” justifying the filing of a late notice of tort claim.
Following the plaintiff’s surgery, she was transferred to a nursing home where she spent two months recovering. Thereafter, she was discharged and began in home care.
Plaintiff did not seek legal counsel until March 2018. She was unaware of the 90 day time period for which to file a notice of tort claim. On May 18, 2018, she filed a personal injury complaint and a motion for leave to file a late notice of tort claim. This motion was filed 4½ months after the deadline for a timely filing of her tort claims notice. In her motion, she alleged that she suffered from various medical conditions, constituting exceptional circumstances, and argued that those conditions warranted an acceptance of her late notice of claim.
The defendants opposed her motion and cross-moved to dismiss the plaintiff’s complaint. However, the trial court denied the cross-motion and granted plaintiff’s motion, permitting the filing of the late notice of tort claim. The trial court judge found that the plaintiff suffered numerous health issues after her hip replacement surgery which precluded her from timely pursuing her personal injury claims against the defendants. Further, he found that the plaintiff was so incapacitated that she was unable to file a notice within 90 days.
The judge noted that she was diagnosed with major depressive disorder and was bedridden at all times except for when she was in physical therapy. She had difficulty keeping food down and could not complete basic tasks of personal hygiene. She also had cataract surgery within a few days of the end of the 90 day time period and remained confined to her home for an extended period of time. She was expected to need home nursing care for a further 8 weeks or more. In summary, the trial court held that these limitations were sufficient to qualify as “extraordinary circumstances.”
The defendants appealed this finding and argued that plaintiff’s medical issues were not so severe or debilitating so as to preclude her from filing a timely notice of tort claim. Because she had failed to demonstrate extraordinary circumstances, the defendants contend that her complaint should have been dismissed.
The Appellate Division noted that the Tort Claims Act imposes strict requirements upon litigants seeking to file claims against public entities, including filing a notice of claim no later than the 90th day after accrual of the cause of action. If a plaintiff misses the 90 day deadline, a notice of tort claim may be filed up to one year after the claim but only if “extraordinary circumstances” excuse the delay and the public entity would not be “substantially prejudiced.”
The Appellate Division noted that in reviewing the extraordinary circumstances requirement based upon a plaintiff’s medical condition, the courts look to the severity of the medical condition and the consequential impact from the plaintiff’s ability to pursue the claim.
Here, the Court found that the plaintiff did not demonstrate that her medical issues were so “severe, debilitating, or uncommon” that she was unable to contact an attorney to pursue her claims. The Appellate Division noted that the plaintiff’s certification described her recovery from her injuries and her depressed mental state during her recovery. However, nowhere in the record was there any medical evidence from a physician that she was “physically or mentally unable to contact an attorney to file a timely notice of claim.” Further, upon her discharge from the nursing home, she still had 30 days within which to file a timely notice of claim. The Court stated that there was no evidence in the record that the plaintiff was bedridden after she was discharged from her nursing home. Even though she required assistance with her activities of daily living, the Appellate Division held that such assistance did not constitute a medical condition so severe and debilitating so as to impact her ability to pursue her personal injury claims.
The Court noted that requiring assistance with grooming and eating are common after surgery. Her depression during her extended recovery period was not uncommon and she was treated for depression. Further, the Appellate Division found that the plaintiff had “ample opportunity” after her discharge from the nursing home to seek assistance from others to pursue her personal injury claims in a timely manner.
With respect to her being on multiple pain medications, the Court stated that there was no evidence in the record that these medications compromised her cognitive ability. Specifically, the Court found that “the general descriptions offered by plaintiff of her post-injury pain, need for assistance with activities of daily living, and resulting depression are insufficient to qualify as extraordinary medical conditions allowing a late filing of a notice of claim.”
The Appellate Division emphasized that the record was devoid of any medical opinion that she suffered from a severe or debilitating medical condition that precluded her ability to seek counsel on a timely basis. Rather, the record provided by plaintiff contained “self-serving and subjective statements of plaintiff’s pain and depression.” The Appellate Division noted that the trial judge mistakenly assumed facts regarding the plaintiff’s condition due to the lack of medical or psychological treatment records.
Because the plaintiff failed to demonstrate extraordinary circumstances, the Appellate Division reversed the trial court judge’s order allowing plaintiff to file a late notice of tort claim. Hence, the Court remanded the matter back for the trial court judge to enter an order granting defendant’s motion and dismissing plaintiff’s Complaint.
Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.