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Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Public Entities Are Not Immune From Frivolous Sanction Litigation

In Borough of Englewood Cliffs v. Trautner, 2024 N.J. Super. LEXIS 37 (App. Div. Apr. 22, 2024), in a published decision, the Appellate Division settled the issue of whether a public entity is immune from sanctions for filing a frivolous lawsuit in accordance with the Frivolous Litigation Statute N.J.S.A. 2A:15-59.1 (hereinafter FLS). The issue stemmed from the Borough’s retention of Thomas J. Trautner and Chiesa Shahinian & Giantomasi, PC (hereinafter CSG), Albert Wunsch III,  Jeffrey Surenian and Jeffrey Surenian and Associates, LLC (hereinafter Surenian) to represent it in affordable housing litigation.

The affordable housing matter was eventually settled but after change of political control in the Borough’s Council, the newly constituted Council sued CSG, Wunsch, and Surenian alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting in course of their representation of the Borough in the litigation.  Shortly after being served the complaint, each defendant sent the Borough’s attorneys notices demanding the lawsuit be voluntarily dismissed because it was frivolous. Later, the trial court granted defendants’ motion to dismiss the Borough’s complaint with prejudice.

The defendants then filed a motion to recover attorney’s fees on the ground that the Borough failed to withdraw the lawsuit as they demanded. The trial court awarded fees to the defendant attorneys, and one of the basis for this appeal was the Borough’s contention that as a municipality it was immune from frivolous litigation sanctions.

The Appellate Division observed that the issue of whether a State, its agencies and political subdivisions are immune from frivolous litigation sanctions under the FLS statute is an unsettled law with only two prior divergent rulings that address the issue. The Court considered the ruling in In the Matter of K.L.F., 275 N.J. Super. 507, 511 (Ch. Div. 1993), where the Chancery court had concluded that the “ the State and its agencies and political subdivisions do indeed fall within the purview and operation” of FLS. In reaching this conclusion, the court had noted that the legislative intent underlying the statute was to reimburse the party that was victimized by frivolous litigation and, because the legislature did not carve out an exception immunizing state agencies within the language of the statute, it is evident that the legislative intent was not to exempt the state and its agencies from the sanctions.

The Appellate also discussed a different conclusion reached by another Chancery court in Division of Youth & Family Services v. P.M.,  301 N.J. Super. 80, 82 (Ch. Div. 1997). In this case, the court had concluded that a state agency was immune from FLS sanctions focusing on the language of the statute, “A party who prevails in a civil action . . . against any other party may be awarded all reasonable litigation costs and reasonable attorney fees or defense  . . . if the [claim] of the nonprevailing person was frivolous” and holding that the word person does not include the State of New Jersey unless used to designate the owner of property.

The Appellate Division agreed with the reasoning of the Chancery court in K.L.F., holding that a public entity is not immune from sanctions that can be imposed under the FLS. The Court noted that, given the plain language in the statute and the unqualified use of the term, “party,” leads it to conclude that the term does not exclude a public entity “party.” The Court also observed that the legislative objective in enacting the statute was punitive in nature and there is no indication in the statute’s legislative history that public entities were meant to be exempt from sanctions if they filed claims determined to be frivolous. The Court noted that even in subsequent amendments to the statute, after the decision in P.M., the Legislature did not amend the statute to clarify whether public entities were immune. Therefore, based on the plain language of the statute, backed by legislative history, the Appellate Division concluded that FLS allows for sanctions against public entities and affirmed the decision of the trial court.

Supreme Court Determines Standard of Care of Negligence Claim Asserted by Student Against Coach

Plaintiff Morgan Dennehy, a 17 year old high school senior, filed a lawsuit against her hockey team coach, defendant Dezarae Fillmyer, when struck by a stray soccer ball during practice.  The issue in Dennehy v. East Windsor Regional Board of Education, 2022 N.J. LEXIS 978 (October 26, 2022) was whether the coach’s acts and omissions would be governed by a simple negligence standard or the heightened standard of recklessness (a more difficult standard to prove).

Plaintiff Dennehy was a member of Hightstown High School’s Girls’ field hockey team coached by defendant Fillmyer.  On the day of the accident, the afternoon sport’s practices were arranged so that the field hockey team’s practice would begin when the boys’ soccer team’s use of the turf field ended.  Coach Fillmyer instructed the offensive players on her field hockey team to begin warming up in “the D-zone,” which was an area between the continuous athletic fields and the turf fields.

A few years earlier, a 20 foot high ball stopper net had been installed at the ends of the turf field to prevent ball interference in other areas.  During the field hockey team warmup, at least two soccer balls from the soccer practice landed within the D-zone near the field hockey players.  Plaintiff played the position of goalie and had not been participating in the informal activities in the D-zone.  She asked her coach if she could take a shot on goal and the coach approved.  As Plaintiff was taking a shot, another errant soccer ball cleared the ball stopper and struck the base of her skull, allegedly causing her injuries.

Plaintiff sued Fillmyer, the Board of Education, the school, its athletic director and others. She claimed that her injuries resulted through, among other basis, defendants’ alleged failures to supervise and provide appropriate safeguards and post suitable warnings of potentially dangerous conditions.

After discovery was completed the defendants filed for summary judgment.  Plaintiff argued in opposition that defendants owed her a duty of reasonable supervisory care.  The trial judge found that the plaintiff was required to show that defendants’ acts or omissions rose at least to the degree of recklessness, as described in prior Supreme Court cases.  The trial court judge applied this heightened standard and determined that the allegations could not support a claim of intentional or reckless conduct.

The plaintiff filed an appeal, challenging only the judge’s determination that a recklessness standard applied to her coach’s alleged acts and omissions.  The Appellate Division reversed, finding that the prior recklessness standard was inapplicable because the coach was not a co-participant. It held that a simple negligence standard applied because plaintiff’s claim was that Coach Fillmyer failed to properly supervise and oversee the participants of the sport assigned to her for instruction.

The matter was further appealed to the Supreme Court, which granted certification. The Supreme Court agreed with the plaintiff and the Appellate Division.  It rejected the defendant Fillmyer’s contention that she was entitled to the application of a recklessness standard (which would be a more difficult standard to meet to pursue a claim for injuries).  Instead, the Supreme Court agreed with the plaintiff’s argument that her claims should be governed by a simple negligence standard.

The Court explained that the recklessness standard did not apply because Fillmyer was not actively participating in the recreational activity at issue.  Rather, her conduct was “her choice of the location of the impromptu workout prior to the scheduled practice and her failure to supervise her players as they waited their turn on the turf field.”

Defendant Fillmyer argued that the recklessness standard should be extended to apply to the acts and omissions of instructors and coaches like herself regardless of the circumstances.  The Supreme Court limited its holding to defendant Fillmyer under the allegations presented by plaintiff.  The Supreme Court stated that “we leave for another time the fixing of appropriate standards to govern the myriad ways in which the multi-faceted roles played by coaches and instructors may cause an injury to a participant.”

The Supreme Court noted that the essence of plaintiff’s theory of liability was that Fillmyer chose the wrong place and an unpropitious time to commence practice.  The Court noted that “parents have the right to expect that teachers and coaches will exercise reasonable care when in charge of their children and that courts will not immunize a teacher’s negligence by imposing a higher standard of care.”

The Supreme Court, however, did not intimate that a factfinder should find Fillmyer was negligent.  It merely held that the recklessness standard did not apply under the circumstances. Hence, the Supreme Court substantially agreed with the Appellate Division’s decision and upheld the reversal of the entry of summary judgment in Fillmyer’s favor.

Third Circuit Finds That Statute Of Limitations Period On Civil Rights Claim Arising From Wrongful Conviction Did Not Begin Until Conviction Was Vacated

The plaintiff Yasmine Coello was convicted of harassment in 2007.  Over a decade later, she was successful in having her conviction vacated.  Within two years later, she filed a civil rights action to recover for various abuses she alleged to have suffered during her criminal proceedings.  The issue in Coello v. DiLeo, 43 F.4th 346 (3d Cir. 2022) was whether the plaintiff timely filed her civil rights lawsuit.

This case had many twists and turns, stemming from a private citizen complaint filed by Shirley Messina in January 2007 in Municipal Court.  She accused plaintiff Coello, who at the time was dating Messina’s former boyfriend with whom Messina had a child, of harassment.  At that time, Coello appeared in court, pled not guilty and the charge was dismissed.

However, for some unknown reason, in February 2007, private attorney Kathleen Estabrooks submitted an affidavit to the municipal Judge Louis DiLeo requesting that she be appointed to prosecute Messina’s complaint against Coello.  Her application was granted, despite the fact that the prosecution did not involve a cross-complaint.  Her affidavit failed to mention that she was also representing Messina in custody and other civil actions against Coello’s boyfriend, circumstances that could clearly bear on Estabrooks ability to prosecute Coello’s case impartially.

Without recording any findings as to the need for a private prosecutor or the suitability of Estabrooks for the role, Judge DiLeo approved her to serve as acting prosecutor.  The matter proceeded to a bench trial.  There were other irregularities, including Judge DiLeo having Coello removed from the court room while the prosecution witnesses testified and then examining Coello himself when she took the stand in her own defense.  Ultimately, he found her guilty on the harassment charge and sentenced her to 30 days in jail but suspended that sentence on the condition that she attend 26 weeks of anger-management counseling.

In the next year, a post-trial hearing was held.  At the hearing, Judge DiLeo noted that he recently received a letter from Estabrooks stating that her client, Ms. Messina had been forced to file another complaint against Ms. Coello for assault.  She asked whether Ms. Coello had completed her anger management course as sentenced by the judge.  Coello attended that hearing without counsel.  Estabrooks also attended but entered her appearance as private counsel for Messina.  There was no municipal prosecutor present.  Instead, Judge DiLeo allegedly assumed that role without inquiring into Coello’s lack of representation.

Coello explained at that time that she had a few weeks of anger management remaining but was having trouble scheduling it due to her new job.  Estabrooks urged DiLeo to send Coello to jail and he agreed, reinstating her thirty day jail term.  He did not address any aggravating or mitigating factors.  Instead, she was immediately incarcerated.

While in jail, Coello hired an attorney who moved for reconsideration.  DiLeo did not schedule argument until 14 days into her jail sentence.  The facts were unclear whether that argument ever took place but Coello was released from jail after having been incarcerated for 18 days.

Nine years later, in November 2016, Coello filed a counseled application for post-conviction relief in New Jersey state court.  She asked for her harassment conviction to be vacated, arguing that the underlying proceedings were subject to a host of legal errors.  The State did not oppose Coello’s application having by that time being familiar with allegations of judicial misconduct lodged against Judge DiLeo.  With no objection from the State, the Court granted Coello’s application for post-conviction relief and vacated her conviction.

A little under two years later, Coello filed the within federal civil rights action in the District Court of New Jersey, naming multiple defendants including Estabrooks, her law firm, Judge DiLeo, Linden’s former mayor, its former prosecutor and the City of Linden.  She filed claims under §1983 and alleged a Sixth Amendment claim that certain Linden defendants violated her rights to counsel, to confront witnesses, and to a fair trial.  She also alleged a number of other constitutional violations.

The Estabrooks and Linden defendants each moved to dismiss the lawsuit, arguing that certain of the defendants were entitled to immunity, the claims were legally deficient and they were time barred.  The District Court considered only the timeliness argument against the Linden defendants. It found that Coello believed that she was wrongfully sentenced in January 2008 and that she had a complete and present cause of action for which she could have filed suit and obtained relief at that time.  Because she did not file suit until 2020, the District Court concluded that her claims against these defendants were untimely, dismissing all claims against the Linden defendants.

Upon appeal, the Third Circuit noted that a §1983 claim, like any other civil cause of action, must be filed within a certain time frame.  This time frame is called the statute of limitations and its purpose is to prevent plaintiffs from “reviving claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”  The Court pointed out that a claim not filed within the applicable limitations, would generally be dismissed as untimely.  In this case, the plaintiff had two years to file this lawsuit.  The issue is when her two year deadline began to run.

The Court analyzed this time period under tort law.  The tort claim that most closely resembled this type of matter would be the common law tort of malicious prosecution.  A key element of a malicious prosecution claim is that the plaintiff “cannot recover unless and until the underlying criminal proceedings terminate in his or her favor.”  Similarly, when one is suing for an alleged unconstitutional conviction or imprisonment, the “plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, are called into question by a federal court’s issuance of a writ of habeas corpus.”

Here, the Third Circuit pointed out that the favorable determination requirement was met on February 26, 2018 when the state court vacated Plaintiff’s criminal conviction.  She brought this lawsuit within two years of that date.  Hence, her §1983 claims were timely filed.  While Coello may have known she was wronged by the Linden defendants’ alleged misconduct at the time of her criminal prosecution, her current claims, all of which attack the validity of those state proceedings, did not exist until her harassment conviction was vacated.  Accordingly, the Third Circuit reversed the District Court decision, dismissing the claim as to the Linden defendants, and remanded it back for the District Court to consider the other arguments made by the Linden defendants in support of their motion to dismiss.

 

Minor’s Parent’s Portee Claim Against Public Entity Tolled For The Duration Of The Minor’s Tolling Period

On November 15, 2019, plaintiff Angela Tennant and her minor son, Micah Dunmore, were attending a high school football game when an individual fired a gun into the stands, striking and injuring Micah.  Angela was a witness to the events and, tragically, Micah died from his injuries five days later.  Ninety-one days after the shooting and eighty-six days after Micah’s death, his Estate, his mother Angela and other family members sent a notice of tort claims to the defendant Board of Education, asserting wrongful death and survivor claims.  Additionally, the minor’s mother, Angela, asserted a claim for negligent infliction of emotional distress under Portee v. Jaffee for her injuries allegedly suffered in witnessing the shooting of her son.  The issue in the published Appellate Division Estate of Dunmore case (2022 N.J. Super. LEXIS 7 (App. Div. Jan. 20, 2022)) was whether the tort claims notices were timely filed.

This matter arose, as a result of the Estate filing a motion seeking a declaratory judgment that the tort claims notice was timely filed.  The Board conceded that the wrongful death claims did not accrue until Micah died on November 20, 2019.  Thus, the tort claims notice filed by the Estate and the family members as beneficiaries of the Estate was timely filed.

However, the issue was whether the tort claims notice for Angela’s emotional distress claim under Portee was timely filed.  At the trial court level, the judge deemed Angela’s claim timely filed, indicating that the tort claims notice of February 14, 2020 was filed within ninety days or within three months of the date of the accrual of the cause of action.  The Board appealed that decision, pointing out that Angela’s tort claim was filed actually ninety-one days after the shooting.

The Appellate Division found that the tort claims notice was timely filed, but for different reasons than expressed by the trial court.  First, the Appellate Division noted that the 90 day deadline to file a tort claims act notice under N.J.S.A. 59:8-8 is not equivalent to three months.  The ninety day deadline is specific under the statute and “[t]here is no doubt that when the Legislature said ninety days it meant ninety days and not three months.”

Angela’s Portee claim accrued on the day of the shooting.  Hence, the Board argued that filing her tort claims notice ninety-one days after the shooting meant it was filed late.

In response, Angela argued that because Micah’s time to file a notice of tort claim and complaint was tolled under N.J.S.A. 59:8-8, the time to file her Portee claim should also be tolled for the same period of time.  She relied on the tolling period accorded to a parent’s claim under the statute of limitations provision in N.J.S.A. 2A:14-2.1.

The Appellate Division noted that the time to file a negligence action is governed by the two year statute of limitations set forth in N.J.S.A. 2A:14-2.  However, N.J.S.A. 2A:14-2.1 permits an exception for a parent filing a claim for damages suffered by him because of an injury to a minor child.  In such a situation, the statute extends the time period of a parent to file a claim to the same period of time as provided by law in the case of a minor child so injured. This statutory provision preserves the parent’s claim until the child brings their claim.

Here, the wrongful death claims of the minor did not accrue until Micah died on November 20, 2019.  Thus, his Estate had ninety days from November 20, 2019 to file a tort claims notice and two years from that same date to file a lawsuit.

Thus, under the statute of limitations provision in N.J.S.A. 2A:14-2.1, the time for Angela to file her own lawsuit for her individual claims of emotional distress (under Portee) was also tolled until the Estate instituted suit.

The Court noted, however, that N.J.S.A. 59:8-8 was silent as to whether Angela’s ninety day deadline to file a tort claims notice for her Portee claim, arising from her witnessing of the shooting and injury to Micah, was also tolled.

Under prior case law, it had been established that the “savings provision” under N.J.S.A. 59:8-8 tolls the requirement for a minor to file a tort claims notice until ninety days after the minor’s 18th birthday.  The Appellate Division noted that there was no precedent squarely on point stating N.J.S.A. 59:8-8 also permits the tolling of a parent’s Portee claim.

The Court found that if a parent’s Portee claim arising out of their child’s injury was not also tolled, “it would result in the absurd situation that the parent’s cause of action would likely be brought before a judge and a jury for trial, perhaps years or decades before the child’s lawsuit was initiated.”  The Appellate Division noted that this result would run “contrary to the principles underlying the entire controversy doctrine and promoting judicial economy.”

Thus, the Appellate Division found that the time to file a notice of tort claim must also be consistent concerning a parent and a child.  The Court held that if a minor’s time to file a notice is tolled under N.J.S.A. 59:8-8 and a parent’s time to file a lawsuit regarding their claims is tolled as long as the child’s claim is tolled, “then the time for a parent to file a tort claims notice must also be tolled.”  In considering the two pertinent statutes, the Appellate Division concluded that “the tolling of a notice of tort claim must also be extended for a parent’s Portee claim to promote uniformity and predictability.”

Finally, the Appellate Division noted that Micah’s time to file a notice of tort claim was tolled until he died on November 20, 2019.  Thus, his mother Angela’s emotional distress Portee claim was also tolled until that date.  She filed a notice of tort claim eighty-six days later, which meant that her notice was timely filed under N.J.S.A. 59:8-8 and, hence, she would be permitted to pursue her claim.

Failure To Serve Defendant And Seek Reinstatement Of Complaint for Seven Years Justifies Order Denying Reinstatement Of Complaint

Plaintiff Mildred Valentin sued defendant Sabrina Pinckney for an automobile accident that occurred in October 2011.  However, she failed to successfully serve the defendant with the complaint until seven years later and, in the interim, the complaint had been dismissed for lack of prosecution.  The issue in Valentin v. Pinckney, 2021 N.J. Super. Unpub. LEXIS 3105 (App. Div. December 15, 2021) was whether the trial court correctly denied the plaintiff’s motion to reinstate the complaint due to the seven year gap between the date of dismissal of the lawsuit and the date of service on the defendant.

The plaintiff had been involved in a two car accident in which defendant was the driver of the second vehicle that allegedly rear-ended the plaintiff’s car.  She filed a personal injury suit against the defendant in August 2012 and unsuccessfully tried to serve her with the complaint in September 2012.  The process server she utilized advised that the address listed for defendant was a large apartment building so an apartment number or letter was needed to locate her residence.  The server offered to further investigate and perform a skip trace search but it does not appear that the plaintiff pursued this option.

On March 15, 2013 the plaintiff’s lawsuit was dismissed without prejudice for lack of prosecution.  Subsequently, plaintiff conducted an internet search, which produced several potential Newark addresses for defendant and she contacted the Postmaster of Newark to see if defendant resided at any of the addresses listed on the internet.  The Postmaster responded that defendant was not known at that address. 

It appears that plaintiff’s counsel did not resume attempting to try to serve defendant until January 2020 when he attempted to serve defendant at various Newark addresses.  Exactly seven years after the dismissal of the complaint, the plaintiff had obtained an apartment number for the defendant and the plaintiff’s process server successfully served defendant with the complaint at the same address listed for her in the October 2011 police crash investigation report.

Plaintiff’s counsel promptly filed a motion to reinstate the case, which the trial court denied without argument on April 9, 2020.  In the opinion accompanying the order, the judge stated that the plaintiff did not “articulate a reason for the inordinate delay in moving to restore this matter” and there was “no showing of good cause or exceptional circumstances to explain the gaps in activity to restore this [seven-plus] year old matter.”

The plaintiff filed a motion for reconsideration, which the trial court judge also denied.  Thereafter, the plaintiff appealed the orders entered by the trial court.  The Appellate Division noted that the standard of the review would be whether the trial court abused its discretion in denying the motion to reinstate and the later motion for reconsideration.

The Court noted that the good cause standard would apply and that reinstatement would be improper where defendant would be prejudiced by the reinstatement.  The defendant in this case objected to the reinstatement, contending that she would be prejudiced in her ability to defend herself against the plaintiff’s stale allegations due to lost witnesses and also difficulty in accessing plaintiff’s medical records from several years before the accident.  The defendant pointed out that these records were necessary to determine if plaintiff’s current condition was causally related to the accident. 

While plaintiff’s counsel did forward certain medical records and reports to defense counsel, the defendant pointed out that treatment providers are only required to maintain patient records for seven years.  Thus, the defendant argued that her lack of access to relevant medical records well pre-dating the accident may limit the defenses available to her.

The Appellate Division found that, in balancing the party’s concerns, “the judge was presented with the extraordinary fact that plaintiff failed to seek reinstatement of her case for more than seven years after entry of the dismissal order.”  The Court noted the plaintiff’s argument that he was unable to secure a proper address for defendant and that was the excuse for the delay.  However, the Appellate Division found that the circumstances do “not remotely excuse plaintiff’s unexplained failure to pursue alternate methods of service.” 

As an example, the plaintiff made no effort to effectuate substituted service on defendant’s insurance carrier, which is permitted by the court rules.  The identity of the insurance carrier was listed on the 2011 Police Crash Investigation Report.

Hence, the Appellate Division could not conclude that the judge abused his discretion in finding plaintiff failed to demonstrate good cause for the seven year delay in moving to reinstate the complaint, nor that his initial decision was based on a palpably incorrect or irrational basis, nor that the judge failed to consider certain evidence.  The Court noted that the plaintiff provided no reason for failing to serve the defendant through her insurance carrier as permitted by the court rules.  In conclusion, the Appellate Division upheld the trial court’s denial of the motion to reinstate the complaint.

Plaintiff’s Failure To Serve Public Entity At Correct Place Of Business With Timely Notice Of Tort Claim Bars Plaintiff’s Personal Injury Claim

The plaintiff Lyndsey Patton was walking in or near the intersection of Union Avenue and West Side Avenue in Jersey City when she was struck by a vehicle owned by defendant Jersey City Municipal Utilities Authority (“JCMUA”).  The accident occurred on June 30, 2019.  On or about September 10, 2019, the plaintiff’s attorney sent a notice of tort claim addressed to JCMUA, but sent it to City Hall on Grove Street instead of JCMUA’s place of business on Route 440 in Jersey City.  Plaintiff later successfully obtained leave from the trial court to file a late notice of claim on JMCUA, which determination was appealed.  The issue on appeal in Patton v. Wiley, 2021 N.J. Super. Unpub. LEXIS 1400 (App. Div. July 7, 2021) was whether the plaintiff had demonstrated the “extraordinary circumstances” under the Tort Claims Act to allow a late filing of a notice of claim.

Pursuant to N.J.S.A. 59:8-8, a party pursuing a cause of action against a public entity under the Tort Claims Act must file a notice of claim within ninety days of accrual of the claim or else be forever barred from recovering from the public entity.  However, a court may exercise the discretion permitted by N.J.S.A. 59:8-9 to allow a late filing “provided that the public entity or a public employee has not been substantially prejudiced” by the delay and also provided that the plaintiff presents “sufficient reasons constituting extraordinary circumstances” for the failure to comply with this statutory requirement.

The question faced by the Appellate Division was whether the plaintiff had met the extraordinary circumstances standard to justify the late filing of the notice of tort claim.  There was no question that plaintiff failed to file a notice of tort claim on JCMUA within the ninety days.  The plaintiff delivered a notice of claim within the required time but to the wrong address.

The Appellate Division noted that there was no mystery as early as the date of the accident that the vehicle was owned by JCMUA and driven by one of its employees and also there was no mystery about the location of JCMUA’s place of business which was included in the police report and was also otherwise readily available through a simple internet search.  The Court held that the plaintiff’s failure to serve the notice of claim on JCMUA at the right location “was a product of attorney neglect or inadvertence” which did not meet the extraordinary circumstances threshold as required by the statute to allow the filing of a late notice of tort claim.

The plaintiff argued that there was little doubt that JCMUA was aware of the event because, in early September 2019, within ninety days of the action’s accrual, plaintiff’s counsel communicated with Qual-Lynx, the administrator who adjusts claims made against JCMUA. The plaintiff’s counsel also advised and served Qual-Lynx with a claim for no fault benefits because plaintiff did not own an automobile and was not otherwise covered by auto insurance.

The Court noted that this submission to Qual-Lynx, however, made no mention of a personal injury claim to be asserted against JCMUA or its employee, and “it cannot seriously be argued that a notice or communications with a public entity’s adjuster or insurer about a related claim constitutes the notice required by N.J.S.A. 59:8-8.”  (emphasis added). Moreover, the Appellate Division noted that the Qual-Lynx representative certified in the opposition to plaintiff’s motion for leave to file a late notice of claim “that he told plaintiff’s attorney during their September 6, 2019 telephone call that plaintiff needed to serve a notice of tort claim directly on JCMUA.”  As of that date, there was still time left to serve a notice of tort claim on JCUMA within the ninety day time period.

While plaintiff thereafter did forward a notice of tort claim, it was sent to City Hall, not JCMUA’s place of business on Route 440.  The Appellate Division noted that this was not a situation where the claimant or her representatives might have been confused about the identity of the public entity that caused the injury.  She knew at the scene of the accident that the driver worked for the JCMUA and, further, in corresponding with Qual-Lynx within the ninety day time period, the plaintiff’s then attorney referred to Qual-Lynx’s insured as “Jersey City MUA.”

The Appellate Division noted that JCMUA was “aware of and had already conducted an investigation into the accident but, in light of the absence of a timely notice of claim, JCMUA had no reason to know plaintiff intended to make a personal injury claim against it.”  Based upon these facts and circumstances, the Court found that the plaintiff’s failure to serve the notice of tort claim was the product of attorney inadvertence.  Counsel was or should have been aware of the identity of the public entity that was involved in the accident, as well as the correct address for the JCMUA.

Finally, the Appellate Division found that “[w]hile it may be viewed as a displeasing result because it seems JCMUA was aware of the accident and aware Qual-Lynx had been in communication with plaintiff about her no fault benefits claim, there is no question the Legislature intended – when it amended N.J.S.A. 59:8-9 – to require a showing of ‘extraordinary circumstances’ to set a high bar for relief.”

The Appellate Division noted that the Supreme Court had clearly established that attorney negligence or inadvertence did not constitute “extraordinary” within the meaning of N.J.S.A. 59:8-9.  Hence, the Court found that it was “constrained” to conclude the judge mistakenly exercised his discretion in allowing plaintiff to file a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s ruling in permitting the late notice of tort claim to be filed against the JCMUA.  Thus, the end result was that the claim against the JCMUA for this accident was barred.

 

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 30 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.

Plaintiff Quadriplegic Found To Have Sufficient Basis To Justify Filing Of Late Notice Of Tort Claim Against Public Entity

On April 9, 2017, plaintiff Jonathan Jeffrey was involved in a one vehicle motorcycle accident, resulting in complete quadriplegia.  Approximately six months after the accident, he consulted counsel, at which point, he learned that his injuries may have been caused or significantly aggravated by the emergency medical technicians who placed him in the ambulance.  In the published decision of Jeffrey v. State, 2021 N.J. Super. LEXIS 65 (App. Div. May 18, 2021), the plaintiff appealed an order of the Law Division denying his motion for leave to file a late notice of tort claim.

Plaintiff’s injuries resulted in several surgeries, including spinal decompression and fusion surgery. He suffered a complete spinal cord transection at the C6-C7 level of his spinal cord, resulting in complete quadriplegia.

Plaintiff was released from the hospital on April 17, 2017 and transferred to a rehabilitation center for two months.  He continued to receive rehabilitation therapy on an out-patient basis for approximately four more months.

However, plaintiff remained completely disabled and unable to perform rudimentary movements, let alone to work.  He had an inability to voluntarily move the upper and lower parts of his body.

Plaintiff retained counsel on November 15, 2017.  At that time, plaintiff was using a wheelchair for mobility and had minimum movement of his upper body.  His decision to consult counsel was, in large part, due to a collection notice dated October 24, 2017 from the hospital.

Plaintiff filed a certification that the first time that he understood that he had a potential claim against the emergency medical services and/or other persons that provided medical care to him immediately after the April 2017 motorcycle accident was when he consulted counsel.  Thereafter, on March 20, 2018, his counsel filed a motion for leave to file a late tort claims act notice.  The lawyer certified that it was not until September 28, 2017 that she finally received sufficient information from a representative of the hospital to conclude that plaintiff’s permanent disabilities may have been caused by some or all of the medical care and treatment he received at the scene of the accident.  She sent in Tort Claims Act notices to the relevant public entities and thereafter filed a motion to seek leave to file a late notice of tort claim.

Pursuant to the Tort Claims Act, a plaintiff must file a notice of claim within ninety (90) days of its accrual (N.J.S.A. 59:8-8).  The Law Division judge has the discretion to grant a claimant leave to file a notice of claim beyond that ninety (90) day time frame, if he or she provides by Affidavit:

(1)        Extraordinary circumstances for his or her failure to file a timely notice of claim; and

(2)        The public entity or employees involved have not been substantially prejudiced by the plaintiff’s tardiness.

The plaintiff argued to the trial court judge that the gravity of his injuries made it “impossible or impractical to view this delay as a failure to exercise due diligence.”  The defendant argued that the motion judge properly exercised his discretion to find plaintiff did not show extraordinary circumstances to justify relief.

The Appellate Division concluded that the trial court judge mistakenly exercised his discretionary authority and reversed.  The Court found that the motion judge “failed to duly appreciate the magnitude of plaintiff’s injuries and their life-altering ramifications.”

In the appeal, the plaintiff argued that the Law Division made a mistake in finding that the accrual date was April 9, 2017, the actual date of his accident.  The trial court judge justified his decision in finding that, while it was difficult for the plaintiff to function in his daily life, there was insufficient evidence in the records to show that the plaintiff was not able to file a timely claim due to the severity of his injuries and his medical care.  The court had noted that the plaintiff was released for treatment by in-patient rehab and that there was nothing to indicate that plaintiff through a family member, friend or individual, was prevented from contacting or retaining legal counsel.

The Appellate Division found that the trial court judge “grossly misapprehended the magnitude of plaintiff’s injuries.  Plaintiff was 25 years old at the time of the accident.  In one catastrophic event, he lost complete movement and sensation of his body.”

The Court further pointed out that after completing two months of in-patient rehabilitation, it would “be beyond insensitive to impose a duty on plaintiff to seek legal advice through surrogates composed of family members or friends, during this life-altering adjustment period.”  The Appellate Division concluded that: “we are certain the Legislature did not intend for the judiciary to construe the term ‘accrual’ in N.J.S.A. 59:8-8 in a manner that abandons all vestiges of basic human empathy.”

Accordingly, the Appellate Division held that November 15, 2017 was the accrual date for his claim.  Thus, plaintiff’s motion to seek leave of the court to accept the TCA notice of claim was only thirty-five (35) days beyond the ninety (90) day statutory requirement.

The Appellate Division noted that after plaintiff completed his two month in-patient rehabilitation program, plaintiff was then required to confront and adjust to his physical limitations.  Further, the Court noted that plaintiff’s inherent difficulties associated with shifting from a motorcyclist to a quadriplegic wheelchair user “cannot be viewed as a barrier to deny plaintiff access to our civil courts.”

Thus, the Appellate Division found that the facts were sufficient to constitute “extraordinary circumstances” pursuant to N.J.S.A. 59:8-9 which permits the filing of a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s denial of the plaintiff’s request to file a late notice of tort claims against the public entities that the plaintiff believed may have exacerbated his injuries.

 

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 30 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.

First Aid Squad Responders Found to Be Immune from Liability for Injury Allegedly Caused by Negligent Transport of Patient

Plaintiff Rose Bengel was allegedly injured as a result of medical assistance provided by defendant Holiday City at Berkeley First Aid Squad, Inc. (“the Squad”). The Squad had responded to a 9-1-1 call for medical assistance and transported her to the hospital. The issue in Bengel v. Holiday City at Berkeley First Aid Squad Inc., 2020 N.J. Super. Unpub. LEXIS 2374 (App. Div. Dec. 11, 2020) was whether the defendant Squad and its first responder members were immune from liability pursuant to statute.

In response to a 9-1-1 call, the Squad arrived at the Bengels’ home to assist Rose Bengel (“Rose”), then 86 years old. The Squad members were advised by her home health aide that she had been wheezing and had pink eye since recently arriving home from a nursing home. Rose was non-ambulatory, being confined to a wheelchair from muscular dystrophy for decades. They had to lift her from her wheelchair to a stretcher to transport her to the hospital.

The plaintiff alleges that the Squad members negligently injured Rose in the process of lifting her, causing her to suffer a rotator cuff tear in her left shoulder. Due to her age, surgery was not recommended and it was contended that Rose’s use of her left hand and arm became more limited after this incident.

The Squad disputed that they caused any injury to Rose in the process of transferring her to the stretcher. They claim that they gently lifted her from her wheelchair, wrapping their arms around her abdomen and feet and sat her on the stretcher.

The Squad moved for summary judgment, arguing that they had statutory immunity against claims of negligence. The Plaintiff argued that the statutory immunity did not apply because it was not an emergent situation and the Squad failed to demonstrate their actions were in good faith.

The trial court judge granted the Squad and its member responders a summary judgment dismissal. He noted that the Squad was one of the 4 volunteer first aid squads in Berkeley Township and its members were first responders certified to provide Basic Lift Support Services. The judge applied the statutes, N.J.S.A. 2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, which “immunized volunteer rescue squads and members from civil liability when providing emergency public first aid or intermediate life support services in good faith.”

The judge found that the Squad members were engaged in public first aid rescue services as they were responding to a 9-1-1 medical emergency call. Although Rose’s condition may not have been life threatening, that did not make the call “non-emergent.” Further, the judge held that there was no evidence that any such injury suffered by Rose was with intent or bad faith of the Squad members.

The plaintiff appealed this summary judgment dismissal to the Appellate Division. The appeals court agreed with the trial judge that the Squad and its members who transported plaintiff qualified for statutory immunity from civil liability. More than negligent conduct would need to be proven to find that the Squad members failed to act in “good faith” or acted in a “willful or wanton” manner.

Thus, even if the Squad members were negligent in lifting Rose and caused her shoulder injury, the Appellate Division found that such actions did not strip the Squad and its members from their statutory immunity. Finding that, at worst, the Squad members were negligent, the Court upheld the trial court’s order granting summary judgment to the Squad and its members.

 

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.

Jury Trials Again Suspended in New Jersey But May Restart on a Virtual Basis

Not surprisingly, due to the COVID-19 surge of cases, the New Jersey Supreme Court has once again suspended jury trials. They had resumed earlier in the fall on a limited basis as a hybrid with virtual jury selection and socially distanced trials. However, with this second wave of new COVID-19 cases, the Court deemed it unsafe to conduct any new in person jury trials. Hence, by order of November 16, 2020, any new in person jury trials are suspended pending further order.

After the court sent out the notice suspending jury trials in New Jersey, on 11/25/20, the court sent out a notice to the bar, which would mandate all cases to be eligible for an entirely virtual jury trial. Having the pleasure of participating in zoom depositions for the past 6 months, conducting trials virtually would present a myriad of problems. The presentation of evidence, securing witness testimony at trial, internet connectivity problems, and the use of evidence for impeachment purposes would be just some of the challenges in a virtual jury trial.

We can only hope that enough members of the bar object so that the court changes this proposal from mandatory to voluntary participation. The goal of the court is to move cases off its docket. While that it is understandable, it should not be done at the expense of adequate representation at trial. I have suggested the increased use of settlement conferences and mediations as an alternative path to resolve cases and move cases off the court’s docket.

We will keep you posted as to whether this proposal is implemented and/or modified before implementation by the court.

 

UPDATE:  Please note that on January 7, 2021, the New Jersey Supreme Court has ordered that virtual jury trials are to proceed, starting on February 1, 2021. They will be implemented in a two phase approach in a limited number of vicinages on a voluntary basis starting February 1, 2021 and on a mandatory basis statewide starting on April 5, 2021. Click here to read more.

 

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.

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