Article by Capehart Scatchard

By Betsy G. Ramos, Esq.

Under N.J.S.A. 59:8-8, a claimant intending to sue a public entity must give notice of that claim to such entity within 90 days of the occurrence of the incident or be barred from filing suit. In Friedler v. NJ Transit, 2015 N.J. Super. Unpub LEXIS 259 (App. Div. Feb. 12, 2015), the plaintiff claimed that her report to a NJ Transit employee of her fall on defective stair at a train station operated by NJ Transit (“NJT”) complied with this requirement.

Her attorney filed a notice of tort claim, just 3 days past the 90 day deadline. He could have filed a motion with the court seeking leave to file a late claim notice for up to 1 year after the accident. However, he did not file this motion and simply filed suit against NJT. NJT filed a motion to dismiss the complaint based upon the plaintiff’s failure to comply with the notice provision of the TCA. This motion was ultimately granted by the trial court.

The plaintiff appealed, contending that immediately after she fell, a NJT representative asked her for information about the accident. According to the plaintiff, he told her that he needed the information about her accident and her injuries to file the information with NJT. Thus, she argued that this notice constituted substantial compliance with the TCA and that she detrimentally relied on the representations of the NJT employee.

The Appellate Division rejected her argument. The court pointed out that “[n]otably missing is any notice to NJT that plaintiff was asserting a tort claim against the agency or any estimate of her claimed damages.” Providing that information to the public entity is one of the important purposes of the tort claims notice so the entity can have the notice it needs to investigate the incident, attempt to resolve the claim, and can prepare a defense.

And, although she claims that she thought giving the information to the NJT representative was sufficient, no NJT employee told her she did not need to file a notice of tort claim.

Regardless, even assuming this information was sufficient to excuse her from filing a claim notice within 90 days, plaintiff still needed to file a motion seeking leave to file a claim notice out of time, within 1 year of the accident. The Appellate Division stated that her failure to do so was fatal to her claim.

This case points out that mere notice that an accident occurred does not comply with a claimant’s responsibility to provide notice that a claim for damages is being made. As the court points out in Friedler, this essential requirement as to notice of a claim is one of the important parts of the notice requirement. Without such notice, there is no trigger for the public entity to investigate the claim and potentially try to resolve it.