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Insufficient Basis Found to File Late Tort Claim Notice in COVID-Related Death

Plaintiff’s deceased husband Bernard Waddell contracted COVID-19 in March 2020 while he was working as a Corrections Officer at the Hudson County Correctional Center.  He died from viral pneumonia secondary to COVID-19 on April 1, 2020.  Plaintiff, Sheliah Waddell, Bernard’s wife filed a Notice of Tort Claim in November 2020 and thereafter filed a motion for leave to file a late notice in March 2021.  The issue in Waddell v. County of Hudson, 2022 N.J. Super. Unpub. LEXIS 1320 (App. Div. July 21, 2022) was whether the plaintiff had presented extraordinary circumstances to warrant the late filing of a Tort Claim Notice.

Under the Tort Claims Act, N.J.S.A. 59:8-8, a plaintiff is required to file a Notice of Tort Claim upon a public entity not later than the ninetieth day after accrual of the cause of action.  The failure to serve such a notice of claim on a timely basis results in a bar against the claim and recovery.  Under these facts, the plaintiff’s cause of action accrued on April 1, 2020, the date of Bernard’s death.  It was undisputed that the Tort Claims Notice was not filed until well after the 90-day period.

The Tort Claims Act, however, does afford relief pursuant to N.J.S.A. 59:8-9, which allows a plaintiff to file a motion for leave to file a late notice within one year after the accrual of the claim.  The trial court may grant the motion if there are “sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” the Tort Claim Notice within the statutory mandate.  Also, the plaintiff must be able to show that the public entity was not substantially prejudiced thereby.  The trial court must undertake a fact sensitive analysis on a case by case basis to determine whether the plaintiff has presented extraordinary circumstances to justify the leave to file a late notice.

Case law has determined that the “extraordinary circumstances” standard for a late filing of a claim notice is a demanding one.  The court must look at the severity of the medical condition and the consequential impact on the claimant’s ability to seek redress and pursue a claim.

Here, the decedent’s wife, Sheliah, certified that her son was sick from COVID-19 from mid-April until the end of May 2020.  Further, she was grieving over the death of her husband during that time period and did not consider that her husband’s death may have been due to the fault of another until some months later.  She did not retain counsel to represent her in this action until October 2020.

However, the County had opened a workers’ compensation claim for Bernard on April 2, 2020.  The third-party administrator of Hudson County’s workers’ compensation program had a communications with the plaintiff in July, advising her that Bernard’s time card revealed he was exposed to coworkers and inmates who testified positive for COVID-19.  Further, Sheliah received reimbursement for funeral expenses and dependency benefits.  Also, the County Finance Department worked with Sheliah in May 2020 to assist her in obtaining several types of benefits available to the Estate.

The trial court determined that the plaintiff had shown sufficient reasons for her failure to timely file the Notice of Tort Claim.  The trial court considered the ongoing health crisis, Bernard’s death, and the illness of plaintiff’s son to be sufficient reasons for the late filing.

The Appellate Division disagreed.  The Appellate Division found that the facts did not present a situation so “severe, debilitating or uncommon” to prevent Sheliah from contacting an attorney and pursuing a claim.  The Court noted that Sheliah was “not incapacitated, confined to a hospital, or under a mental impairment as seen in other instances.”  Further, although she had certified that she had been concentrating on her ill son, she did not state that he was hospitalized or gravely ill, and, in fact, he recovered from his illness in May.

Further, immediately following Bernard’s death, Sheliah had communications with County employees regarding potential benefits relating to her husband’s death.  She was aware that he was exposed to COVID-19 while working for the County and that he died of complications from the disease.  While she may not have been aware that the defendant County could have any legal liability for Bernard’s death, the Court pointed out that the New Jersey Supreme Court has rejected knowledge of fault as an excuse for a late Tort Claim Notice filing.

The Appellate Division noted that, while it was sympathetic to Sheliah’s loss and the “unprecedented impact” of COVID-19, the circumstances did not meet the required high threshold to bring a claim under the Tort Claims Act.  Sheliah’s conduct in the 90 days following Bernard’s death confirmed that she could have contacted an attorney from her home, as she eventually did.

Thus, the Appellate Division found that the plaintiff could not demonstrate that extraordinary circumstances existed for the untimely filing of the Tort Claims Notice.  Hence, it reversed the trial court decision permitting leave to file a late notice of claim.  Accordingly, based upon this decision, the plaintiff would be barred in pursuing the County of Hudson for tort damages due to the death of her husband.

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