Plaintiff’s Failure to File Timely Notice of Tort Claim Due to Attorney’s Illness May Constitute Extraordinary Circumstances and Justify Late Notice of Claim

By Betsy G. Ramos, Esq.

In the published opinion of Beyer v. Sea Bright Borough, 2015 N.J. Super. LEXIS 84 (App. Div. May 19, 2015)), the Plaintiff Brian Beyer claimed that the Sea Bright Police Department physically abused him when he was arrested in August 2013. Upon his release from jail, he consulted with Clifford Kuhn (“Kuhn”), counsel who had represented him previously on matters. In October, Kuhn was diagnosed with a relapse of lung cancer and underwent emergency surgery.  In December, Kuhn told him he could no longer handle his case and he died in early 2014. However, Kuhn never filed a notice of tort claim on plaintiff’s behalf within the required 90 day time period.

Beyer retained new counsel on December 30, 2013, who filed a notice of tort claim on January 8, 2014. His new attorney also filed a motion for leave to file a late notice of claim. That motion was denied by the trial court. The trial court reasoned that attorney inattentiveness, even if the reason is tragic, does not constitute extraordinary circumstances to justify the late filing. This appeal ensued.

The Appellate Division found that an attorney’s failure to act due to his serious incapacity or death are not routine matters and should not be equated with mere inattention. On the existing record, the court could not conclude that Beyer’s failure to file a timely notice of claim was simply something in “the nature of inadvertence, negligence, inattentiveness, or ignorance.” On its face, his lawyer’s illness and related incapacity appear to represent an extraordinary situation.

The appeals court found that it required further exploration and consideration by the trial judge. Thus, the Appellate Division reversed the order of the trial court dismissing the case and remanded the case back to the trial court for a plenary hearing to determine the facts surrounding Beyer’s failure to file a timely notice of claim and the extent to which it was a result of his lawyer’s grave illness, as opposed to “inadvertence, negligence, inattentiveness or ignorance.”

This case represents likely a narrow exception to the mandate in the Supreme Court case of D.D. v. University of Medicine & Dentistry of NJ, 213 N.J. 130 (2013) to strictly construe the extraordinary circumstances standard for plaintiffs seeking leave to file a late notice of claim. Nevertheless, it does make inroads into D.D.’s holding and carves out a narrow exception when the plaintiff’s attorney is seriously ill during the 90 day period following the accrual of the plaintiff’s claim.