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

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.”


Failure to Timely Serve Tort Claims Act Notice Upon Defendant Bars Claim

Plaintiff alleges that she was injured when she fell into an uncovered trench drain at Snyder High School, operated by the Jersey City Board of Education. The day after the accident she delivered a note to the school advising of the accident. In Hernandez v. Snyder High School, 2018 N.J. Super. Unpub. LEXIS 155 (App. Div. Jan. 24, 2018), plaintiff contended that her note should constitute substantial compliance with her obligation to file a notice of tort claim.

Plaintiff’s note described the accident and provided the date and her telephone number. However, it did not include her home address, the nature and extent of her injury, her loss or damages, or her intent to file a claim against the defendant school and school board.

The accident occurred on November 20, 2014. After the plaintiff retained counsel, her attorney sent tort claim notices on December 12, 2014 but the notices were sent to City Hall for Jersey City. No notice was sent to the Board of Education office, which was at a separate location.

The Board of Education filed for summary judgment on the basis that it was not timely served with a tort claim notice. Plaintiff contended that the handwritten note substantially complied with the notice requirement. Further, Plaintiff argued that in the Yellow Pages, the City Hall address is listed as one of the addresses for the Board of Education.

The trial court rejected both of these arguments. The trial court judge found that the Board and the City were separate public entities and service upon the City was not effective service on the Board. The court also found that the doctrine of substantial compliance was inapplicable. Plaintiff’s note did not express her intent to pursue a claim and failed to include other information required by N.J.S.A. 59:8-4, such as her address and her injuries. Thus, the trial court granted the Board summary judgment.

On appeal, the Appellate Division affirmed. It noted the strict requirement of the Tort Claims Act to file a timely notice. The Court stated: “We have repeatedly made clear that, after the ninety-day deadline has passed and a plaintiff has not utilized the procedure under N.J.S.A. 59:8-9 to obtain an extension of that period up to one year, courts lack jurisdiction to entertain tort claims if the required notices were not timely filed.”

Although the plaintiff contended the Board should be estopped from making this argument because if failed to raise it within one year of the accident – which would have permitted plaintiff to seek leave to file a late notice – the Court found that, even if the plaintiff had sought leave, it would have been denied. The Plaintiff’s explanation for serving the Board at the City Hall address was not a sufficient excuse when the Board’s correct address was readily available.

Further, the Appellate Division agreed that the plaintiff’s handwritten note did not substantially comply with Tort Claim’s Act notice requirement. The notice that was filed was missing some of the required information and was more akin to an accident report than a notice of tort claim. Although the plaintiff argued she should be entitled to additional discovery, the Court also rejected that argument. No amount of additional discovery would change the fact that plaintiff failed to serve the Board with the notice of claim.


Love is in the Air, But Should It Be in the Workplace?

A question that I frequently receive in my practice is:  should a company implement any sort of dating policy for employees, or even go so far as to actually ban such relationships totally among its employees?

As hard as it might be to believe, it was not long ago when such policies prohibiting dating amongst employees were common in many workplaces. Over the years, with the recognition that employees are spending so much of their time at work today, employers began to acknowledge the practicalities that romantic relationships can often develop between employees spending so much of their waking hours around one another. Ultimately, most employers came to accept the realities of such workplace romances.

At their root, these prohibitory policies were designed to control (in some way) the potential damage that could occur to the “business” relationship between such employees if the romantic relationship fizzled and ended.  Such policies were also designed to eliminate the always thorny situation of a supervisor becoming romantically involved with a co-worker over whom there was supervisory responsibilities.  In today’s current business climate where we are seeing an increase in sexual harassment complaints, should companies bring those discarded anti-dating polices back as a further means of preventing possible harassment claims in the workplace?

As I frequently advise my clients, the difficulties of enforcing anti-dating rules in the workplace today make me question the wisdom of implementing an outright ban on such dating.  Nevertheless, employers are wise to adopt a policy alerting employees to the fact that, while workplace relationships are not prohibited, the company’s anti- harassment policy still applies to protect employees when romantic relationships are pursued by a co-worker that are unwelcome.  Employees should likewise be reminded that the right to say “no” is to be respected, and when it is not, there will be consequences under the Company’s anti-harassment policy. Finally, it is also beneficial for employers to let employees know that, in cases where there is a supervised-supervisor romantic relationship, the supervised employee will be reassigned to another supervisor in order to eliminate potential claims by other supervised employees of favoritism and the possible negative fallout and tension that could happen when the romantic relationship ends.

While it might be hard to stop romantic relationships from happening in the workforce, implementation of a sound dating policy can assist in controlling any negative impact that such relationships could have on your business.

Due Diligence for Independent Practice: An Introductory Overview

There are many reasons why a physician would want to be in “independent practice” and equally as many why that might be difficult to achieve. Independence might mean being part of a physician-led network or it might mean operating a completely stand-alone practice. In either case, the goal is to be successful while maintaining a desired level of autonomy, in both clinical and business terms. When investigating independent practice, the first step is to conduct your own “due diligence.”

Read the remainder of the article written by Denise L. Sanders, Esq. and published by MDAdvisor by clicking here.


Township Has no Liability for Drowning Death of Minor in Unimproved River

The plaintiff, Carol Leonard, on behalf of the Estate of her deceased son, Devine Nichols, sued the City of New Brunswick due to the accidental drowning death of her son in the Raritan River. Devine and his friend had been seen walking in the Raritan River in Boyd Park. The next day, the bodies of Devine and his friend were found in the river. In Leonard v. City of New Brunswick, 2017 N.J. Super. Unpub. LEXIS 2837 (App. Div. Nov. 14, 2017), plaintiff sought to hold the City liable based upon its ownership and operation of Boyd Park.

Eleven year old Devine was last seen at Boyd Park, walking in the middle of the Raritan River, during low tide. However, according to a witness who saw Devine and his friend, about 5 minutes later, it started to rain heavily.

The plaintiff, Carol Leonard (“Leonard”), sued the City, along with the County of Middlesex and the State, on the basis that the park created a dangerous condition in not restricting access to the river. Also, the plaintiff’s expert faulted the City for “failing to post warning signs concerning the dangers created by ‘tidal changes and resulting strong currents.’”

However, the City contended that it should be immune from liability under the Tort Claims Act pursuant to N.J.S.A. 59:4-8, which provides immunity to public entities from injuries caused by conditions on their unimproved public properties. While the plaintiff claimed that this defense would not apply because Boyd Park was an improved property, the City countered by arguing that it is immune from liability because Devine drowned in the Raritan River, which is unimproved.

Additionally, N.J.S.A. 59:4-9 provides immunity for injuries caused by the condition of unimproved portions of “submerged lands” and the “beds of navigable rivers.” The City argued that this defense was another basis upon which it should be immune.

The Appellate Division agreed with the City that the relevant property was not the park but, rather, was the river. The Court held that the Raritan River caused Devine’s death, which made it the relevant property for the Tort Claims Act analysis as to applicable defenses.

The plaintiff failed to show that the Raritan River was an improved property. The fact that Boyd Park has improved lands in part did not make the river an improved part of the property. Thus, the Appellate Division found it to be within the scope of the defense in N.J.S.A. 59:4-8. Additionally, the Court also held that the City was insulated from liability for a dangerous condition within “submerged lands,” as set forth in N.J.S.A. 59:4-9.

Hence, the Appellate Division upheld the trial court’s dismissal of this matter, finding that these Tort Claims Act defenses immunized the City of New Brunswick from tort liability for this accident.

Appellate Division Limits Attorneys’ Fees in OPRA Case

By:  Sanmathi (Sanu) Dev, Esq.

On November 27, 2017, the New Jersey Appellate Division in Kennedy v. Montclair Center Corporation Business Improvement District issued an unpublished decision in which it determined that the Open Public Records Act (“OPRA”) does not entitle a plaintiff to attorneys’ fees after the public agency satisfied his document request.

Scott Kennedy made an OPRA request to the Montclair Center Corporation Business Improvement District (“Montclair Center”). Not having received an adequate response, Kennedy filed suit against the Montclair Center alleging that it had no OPRA custodian, had no OPRA request form, and charged excessive copying costs in violation of OPRA. After the lawsuit was filed, the Montclair Center provided the requested documents to Kennedy but maintained its position that it was not a public agency subject to OPRA. In a separate action decided in 2014, the Appellate Division ruled that the Montclair Center was a public agency subject to OPRA.[1]

On remand, the trial court addressed the issue of attorneys’ fees. Kennedy argued that he was a prevailing party entitled to attorneys’ fees for both receiving the documents from the Montclair Center and for obtaining a decision from the Appellate Division that the Montclair Center was a public agency. The trial court disagreed and only awarded Kennedy counsel fees through the receipt of the documents. Kennedy then appealed to the Appellate Division.

The Appellate Division disagreed with Kennedy and affirmed the trial court. In analyzing N.J.S.A. 47:1A-6, the Appellate Division reasoned that the fee-shifting provision of OPRA only applies to successful challenges regarding access to public records. Further, the right to counsel fees only belongs to an OPRA requestor. The Appellate Division explained that once a party receives full access to requested documents, the party is no longer considered a requestor. In short, a party that chooses to pursue additional relief after obtaining access, even if the relief sought is under OPRA, is no longer an OPRA requestor. Thus, when Kennedy pursued his lawsuit against the Montclair Center after it provided him with the documents, he was no longer a requestor entitled to counsel fees.

[1] Kennedy v. Montclair Ctr. Corp. Bus. Improvement Dist., 2014 N.J. Super. Unpub. LEXIS 1654 (App. Div. June 24, 2014)

One Strike and You’re Out-Single Racial Slur Can Create Hostile Work Environment

Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.

In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”

The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”

An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.

The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace.  Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0

The Notice of Tort Claim Was Timely Received, but Is It Statutorily Compliant?

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:

  1. The name and post office address of the claimant;

  2. The post-office address to which the person presenting the claim desires notices to be sent;

  3. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

  4. 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;

  5. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

  6. 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.

Plaintiff’s Claim against School District based upon Sexual Abuse by Teacher Barred Due to Failure to Timely File Tort Claims Notice

Plaintiff (“J.D.”) alleged that his high school teacher sexually abused him between 1983 and 1987. J.D. began having panic attacks in June 2013, which led to his hospitalization. He was diagnosed with panic disorder and either major depressive disorder or bipolar disorder. In May 2015, in psychotherapy, he disclosed his high school teacher’s relationship and his anger for the first time. In April 2016, plaintiff filed a motion for leave to file a late notice of claim against his high school teacher and the school district. In J.D. v. D.R., 2017 N.J. Super. Unpub. LEXIS 2528 (App. Div. Oct. 6, 2017), the issue was whether plaintiff demonstrated extraordinary circumstances to justify the late filing.

Pursuant to N.J.S.A. 59:8-8, to pursue a tort claim against a public entity, a plaintiff must file a notice of his claim within 90 days of its accrual. If the plaintiff fails to timely file his notice within the 90 days, the plaintiff may seek leave with the court up to one year after the accrual of his claim if he can provide sufficient reasons constituting extraordinary circumstances for his failure to file a notice of claim within this statutory time period. (N.J.S.A. 59:8-9.)

Plaintiff claimed that his psychological impairments constituted sufficient reasons to excuse the late filing. The trial court judge found this reason inadequate to meet the “extraordinary circumstances” requirement and denied his request to file a late notice of tort claim.

The Appellate Division upheld the trial court’s decision to deny the motion for leave to file a late notice of tort claim. The “extraordinary circumstances” standard was added by the Legislature in 1994 to replace the “fairly permissive standard” to this “more demanding” standard. The plaintiff’s reasons for not filing a timely notice of claim were insufficient to overcome this demanding standard. Thus, the Appellate Division found that the trial court judge correctly denied his motion.

Paid Break or Flex Time?

When is an employee entitled to be paid for taking a break at work? That was the question that the Third Circuit Court of Appeals had to address in the recent case of Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (October 13, 2017). In this case, the Third Circuit had to decide whether employees of the defendant company were entitled under the Fair Labor Standards Act (“FLSA”) to be paid for periods of time of 20 minutes or less when they were relieved of all work-related duties. In a significant victory for employees, the Third Circuit said that these employees were indeed entitled to such wage payments.

Defendant employed sales representatives who were paid a base hourly wage and qualified for bonuses and additional compensation based upon work they performed while logged on to their work computers. In 2009, defendant eliminated its existing policy allowing such sales reps to take two 15 minute breaks per day. Under the company’s new policy, employees were allowed to determine the frequency, length and time and duration of the breaks. While employees could take breaks for any reason, defendant only paid such sales rep employees for breaks lasting under 90 seconds.

The United States Secretary of Labor (“DOL”) brought suit against the defendant claiming the lack of payment for any breaks that were less than 20 minutes long violated the FLSA. This was based upon the DOL’s long-standing bright line rule that all breaks taken by employees for under 20 minutes required payment under the FLSA. The defendant attempted to justify its practice of nonpayment by claiming that the time that the sales reps stopped working was not a break in the legal sense but “flex time.” The District Court rejected this distinction, and gave deference to the DOL’s interpretation of what was required by the FLSA in its long-standing rule requiring payment for all breaks under 20 minutes long. The Third Circuit also ultimately rejected defendant’s argument as well, and likewise enforced the DOL’s long-standing rule on the payment requirement for breaks under 20 minutes.

The Third Circuit’s decision is a friendly reminder about the dangers of not knowing all the nuances of wage and hour legal requirements. The DOL has issued a number of regulations that provide guidance to employers on how that agency interprets the wage and hour payment requirements of the FLSA, with one of those being the 20 minute break compensation rule at issue in this case. In this case, not only did this employer have to pay for the actual wages required for all uncompensated employee 20 minute break periods, but the court also awarded liquidated damages. Liquidated damages consist of payment of double the amount of the wages that are owed. Before incurring such costly expenses, it is best to make sure that all novel compensation policies are legally sound and will withstand any possible future scrutiny from the DOL.

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