Appellate Division Reinforces “Extraordinary Circumstances” Requirement for a Late Notice of Tort Claim

By: Charles F. Holmgren, Esq.

When plaintiffs fail to file a Tort Claims Notice with a public entity within ninety days of their personal injury the plaintiffs believe was caused by the public entity, they must file a motion with a court seeking the court’s permission to file a late Tort Claim Notice. However, if he or she hopes to succeed, a plaintiff must meet the very strict standard of showing “extraordinary circumstances” under the Tort Claims Act as to why they were not able to timely file the Tort Claims Notice. Our firm handled a recent case before the New Jersey Appellate Division (Hallett v. Hamill, 2018 N.J. Super. Unpub. LEXIS 587 (App. Div. March 15, 2018)), in which the Appellate Division reaffirmed the extraordinary in the “extraordinary circumstances” requirement for the timely filling for a Tort Claims Notice.

In Hallett, an elderly Ruth Hallett fell on ice in front a house owned by Letita Hamill on February 16, 2016. She sustained a fractured femur and was hospitalized until she passed away on July 23, 2016, allegedly from injuries related to her accident. Ms. Hallett did not seek any legal advice or file a Tort Claims Notice within the required ninety day. On August 8, 2016, after Ms. Hallett’s death, her daughter retained an attorney to handle Ms. Hallett’s personal injury claim. The attorney filed a Complaint against the Township of Ewing, alleging the Township was in some way responsible for Ms. Hallett’s fall. The Township responded by moving the court to dismiss the Complaint for failure to file a Tort Claims Notice. The plaintiff responded by cross-moving for leave to file a late Tort Claims Notice.

In a certification accompanying the motion, the plaintiff’s attorneys gave a brief outline of the facts of her fall and that she died in the hospital thereafter; the attorneys did not state how long the plaintiff was in the hospital, whether her ability to concentrate was affected by any medication or whether she suffered any head injuries or had any mental impairment beyond a fractured leg. At oral argumenta the trial court level, Ms. Hallett’s attorneys argued, without any objective proof of Ms. Hallett’s hospital stay or condition, that her incapacity in the hospital, with no more than a fractured leg, was justification for her inability to file a Tort Claims Notice on time.

As counsel for Ewing, we argued that the plaintiff’s oral evidence of her incapacity, without more, was insufficient to satisfy the exacting standards of the “extraordinary circumstances” requirement of the Tort Claims Act. Nevertheless, the trial court granted the plaintiff’s motion to file a late Tort Claims Notice based upon the position that such motions are viewed with “great liberality” so that such cases may be heard on their merits and that such a determination was well within its discretion.

The Township appealed, arguing that the “great liberality” standard used by the trial court did not meet the strict “extraordinary circumstances” requirement of the Tort Claims Act and that the trial court abused its discretion in using a lower and inappropriate standard.

The Appellate Division agreed with Ewing and reversed. The Appellate Division emphasized the “extraordinary circumstances” standard that came with a 1994 amendment to the Tort Claims Act, noting the pre-1994 amendment language permitted a much more lax “sufficient reasons” standard. The change from the pre-1994 standard to the more rigorous standard was an express refutation of the more liberal reading of the Act. The more strict reading of the amended Act required that all medical conditions meet the “extraordinary circumstances” standard only if they are severe or debilitating and affect the plaintiff’s very ability to attend to the duties of filing a claim. The Court emphasized two past cases where serious head trauma or a medical induced coma were sufficient medical reasons that satisfied the heightened standard. It then noted that the plaintiff’s failure to provide objective medical evidence showing the nature or extent of her injuries or disability, other than a fractured femur, failed to meet the standard. Notably, the appellate court pointed out that, “plaintiff did not claim to have suffered any head injuries or cognitive impairment.”

The Appellate Division further noted that the trial court’s ability to exercise discretion was limited to cases in which the plaintiff was able to show extraordinary circumstances for the delay, as a judicial finding of extraordinary circumstances must be expressly made. Indeed, an abuse of discretion will be found if the trial court proceeded on a misconception of the law, as it did here in applying a less onerous standard than “extraordinary circumstances.”

An analysis of “extraordinary circumstances” is often very factually oriented, with reasonable minds able to come to different conclusions as to which circumstances are sufficiently extraordinary. The Appellate Division’s opinion here emphasizing the plaintiff’s inability to show any head injuries, cognitive impairment or mental trauma as failing to meet the extraordinary circumstances standard specifically in reference to whether it affected her ability to file a claim may signal a key factor that courts should be looking to regarding what medical conditions are sufficient for “extraordinary circumstances.”

Leave a Reply