Plaintiff Geoffrey Jones was injured on October 13, 2016 when he stepped into hole next to a storm grate on a street in Jersey City. On November 1, 2016, he served a notice of tort claim upon Jersey City, Hudson County, and the State of New Jersey. In Jones v. City of Jersey City and Jersey City Municipal Utilities Authority, 2020 N.J. Super. Unpub. LEXIS 344 (App. Div. Feb. 18, 2020), the issue on appeal was whether the defendant Jersey City Municipal Utilities Authority (“Authority”) should have been granted summary judgment because of the plaintiff’s failure to serve defendant with a notice of tort claim or file a motion to seek leave to file a late notice of tort claim.
After serving the notices of tort claim on the other public entities, both the State and the County responded by advising the plaintiff that they did not own or control the area where the plaintiff fell and, hence, were not liable for his injuries. Jersey City responded that it had no prior notice of any problems or defects at the loss location and denied the claim.
The plaintiff filed a complaint against Jersey City, Hudson County, and the State on May 23, 2018. In its answer, Jersey City certified that an additional party should be joined (the Authority) and that defendant Authority is a separate and autonomous agency. Also, in answers to interrogatories, Jersey City stated that defendant Authority may have made repairs to the hole or broken pavement next to the storm water/grate where plaintiff alleges he fell.
Despite Jersey City’s disclosure of the defendant Authority’s potential liability, plaintiff never sought to serve defendant with a tort claims notice, nor did he file a motion to seek leave to file a late notice of claim. Instead, plaintiff filed an amended complaint on October 4, 2018, adding defendant Authority to the lawsuit.
Defendant Authority filed a motion to dismiss on the basis of plaintiff’s failure to comply with the notice requirements of the Tort Claims Act. Plaintiff opposed the motion, contending that he had “substantially complied” with the notice requirement. He argued that the Authority was “an entity under the Jersey City umbrella” and, therefore, notice to Jersey City satisfied plaintiff’s notice requirement to the defendant Authority.
The trial court judge denied the Authority’s motion to dismiss. The judge found that plaintiff made a “reasonable good faith attempt” to give defendant timely notice and that plaintiff only learned of the Authority’s involvement a year and half after Jersey City was given proper notice.
The Appellate Division disagreed with the trial court’s decision. It found that the plaintiff was not entitled to simply amend his complaint to name defendant without first serving defendant with a notice of tort claim or filing a motion to serve a late notice.
The Court noted that the Tort Claims Act requires that notice of a tort claim be served within 90 days of the claim’s accrual. The discovery rule may apply, tolling the date of the accrual, if the victim is either unaware that he has been injured or does not know the third party is responsible. If the tort claim notice is not served within the 90 day period, permission to file a late notice of tort claim must be sought by motion, regardless of whether the date of accrual is established based upon the date on injury or through the application of the discovery rule.
The Appellate Division noted that the filing of an amended complaint would not be a substitute for the notice required by the statute. Here, the Court found that the plaintiff never complied with any of the Tort Claims Act’s notice requirements as to defendant Authority.
Further, the Appellate Division held that Plaintiff’s reliance on its service of notice to Jersey City was “misplaced.” The Jersey City Municipal Utilities Authority is a separate public entity from Jersey City. Plaintiff’s service of his tort claim notice upon Jersey City, the wrong public entity, does not absolve the plaintiff of his obligation to promptly identify the proper public entity and serve a timely notice of tort claim.
The plaintiff failed to show that he took any action after his fall to establish which public entities were responsible at any time prior to receiving Jersey City’s answers to interrogatories. Because plaintiff failed to file a motion to seek leave to file a late notice of tort claim, the motion judge “could not determine whether plaintiff established extraordinary circumstances warranting the service of a late notice of tort claim.”
Thus, the Appellate Division reversed the trial court’s order and remanded for an order to be entered granting defendant Authority’s motion to dismiss 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.