Plaintiff Asserting a Bystander Liability Claim against Public Entity Required to Comply with Notice Requirements of Tort Claims Act

Plaintiff Linda Alberts claimed that she suffered personal injuries when she fell from a bicycle while operating her bicycle on a bike path owned by defendant County of Atlantic. She alleged that the bike path was in a dangerous condition and sought compensation for her injuries. Her husband Randy Alberts (“Randy”), who witnessed her accident, attempted to assert an indirect claim for negligent infliction of emotional distress (Portee v. Jaffee claim). The issue in Alberts v. Gaeckler, 446 N.J. Super. 551 (Law Div. 2014)(approved for publication August 18, 2016) was whether her husband was required to file his own Tort Claims Act (“TCA”) notice before he could pursue the claim and, if a separate TCA notice was not required, does the 2 year statute of limitation bar his claim if filed after the expiration of the limitations period.

When plaintiff filed her TCA notice, she listed her husband as a witness but it did not contain any information that could be construed as Randy suffering injuries as a result of him being an eyewitness to her injuries. Randy did not file a separate TCA notice.

Shortly after filing the complaint, but more than 2 years after the accident, plaintiff filed a motion to amend the complaint to add a count alleging that Randy was entitled to compensation for the emotional injury he suffered in witnessing the injury to his wife. While the court granted the motion, it did not preclude any defenses to the amended complaint. Thereafter, the first amended complaint was filed, adding a claim for Randy based upon bystander liability. Defendant then filed a motion to dismiss the bystander liability claim for failure to state a claim.

Plaintiff opposed the motion, arguing that Randy had substantially complied with the TCA notification requirements because there had been general compliance with the notice requirements and defendant would not be prejudiced by the presentation of a Portee claim. The plaintiff relied up case law holding that, for a husband’s per quod claim, a separate TCA notice was not required.

The court rejected the argument that the TCA notice filed on behalf of plaintiff Linda Alberts substantially complied with the notice requirements of the TCA for the purpose of asserting a bystander liability claim. The court noted that there was nothing that would alert the defendant to the fact that Randy was making his own claim for negligent infliction of emotional distress.

The court distinguished a Portee claim from a claim filed by the injured party. A different investigation would be needed to determine whether a contemporaneous observation was made and whether the bystander required medical or psychological treatment due to witnessing the injury. Thus, the court found that, to pursue a Portee claim, Randy was required to file his own TCA notice. To rule otherwise would require a public entity to spend taxpayer funds to investigate every time a spouse was a potential witness just because there was a possibility a claim for bystander liability would be asserted.

As for the statute of limitations issue, the court determined that a Portee claim was a separate cause of action and not derivative of the underlying personal injury claim. This type of claim is different than a loss of consortium claim that is derivative of the claim of the injured spouse. Because this claim is an independent claim, the statute was not tolled by the lawsuit filed by his wife Linda. It did not relate back to the date of the filing of the original complaint. Thus, the court ruled that Randy’s claim was time barred by the failure to file it within the 2 year statute of limitations. Hence, for both of the above reasons, the court dismissed the count filed by Randy Alberts as to his Portee claim with prejudice.