On June 4, 2021, plaintiff Joshua Jackson slipped on an unidentified liquid on the stairs between the first and second floors of a building owned by Defendant City of Passaic Housing Authority. Plaintiff alleges that he attempted to obtain a notice of claim form from the Authority but was unsuccessful. Less than one week before the ninety day Tort Claims Act deadline (to file a notice of claim) elapsed, plaintiff retained counsel who purportedly called the Authority and asked for a notice of claim form but was sent an incident report. The issue in Jackson v. City of Passaic Housing Authority, 2023 N.J. Super. Unpub. LEXIS 119 (App. Div. Jan. 27, 2023) was whether the plaintiff had shown sufficient reasons constituting extraordinary circumstances justifying his failure to timely file notice of his accident with the defendant Authority.
The facts appear to be somewhat disputed whether the plaintiff’s counsel called and asked for a notice of claim form or, rather, whether he simply asked for an incident report. However, there was no dispute that the notice of tort claim was not filed until eight days past the ninety-day statutory deadline, as required under the Tort Claims Act.
The plaintiff filed a motion seeking leave from the trial court to file a late notice of claim. The trial court denied this application, finding that N.J.S.A. 59:8-4 specifically enumerated what was supposed to be in the claims form. Further, the court found that, even if the defendant Authority failed to provide plaintiff with a notice of claim form, that did not constitute extraordinary circumstances in the trial court’s view to justify missing the statutory deadline. (Accordingly, his claim was barred.)
Upon appeal, the Appellate Division noted that, pursuant to the Tort Claims Act, a public entity is not liable for an injury, except for as provided by the Act. The Act provides that, prior to the filing of a formal complaint, a claimant must provide the public entity with a notice of claim no later than the ninetieth day after accrual of the cause of action. That date would typically be the date the negligent conduct causing injury occurred. Further, if a claimant fails to timely file a notice of claim with a public entity within this ninety-day time period, the claim is permanently barred. The Court noted that the purpose of this deadline is to “compel a claimant to expose his intention and information early in the process in order to permit a public entity to undertake an investigation while witnesses are available and the facts are fresh.”
The Court further noted this ninety-day filing requirement is not completely inflexible and the claimant is permitted, in limited circumstances, to make a motion for leave to file a late notice of tort claim. However, the motion must be “supported by Affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for the failure to file the motion, and the public entity must not be substantially prejudiced by the late notice.” It is up to the trial court to determine whether extraordinary circumstances exist.
Here, the plaintiff argued that the trial court failed to consider all the facts and circumstances surrounding the late claim by failing to consider the notice was only eight days late, plaintiff timely retained counsel, and a lack of prejudice to the Authority.
The Appellate Division, however, rejected this argument and agreed with the trial court that plaintiff failed to demonstrate extraordinary circumstances to justify his failure to file the notice of claim within the ninety day window. The Court found that plaintiff was represented by counsel prior to the expiration of the applicable time period.
According to the facts presented, the delay in filing was due to lack of due diligence, which the New Jersey Supreme Court has held is insufficient to establish permissible filing of a late notice. Further, the Court stated that there is no standard “form” that must be filed.
Plaintiff failed to present any evidence, nor cited to any case law, statute, or regulation to support his position that he should be permitted to file an untimely notice because he was only slightly late. The Appellate Division noted that the Legislature’s waiver of sovereign immunity remains a limited one and they are not free to expand that waiver beyond its statutorily established boundaries. Hence the Appellate Division affirmed the trial court’s decision, denying the plaintiff’s motion to file a late notice of tort claim.
