On August 16, 2022, plaintiff Kathryn Hutchins claims to have suffered an injury while a passenger on a NJ Transit bus when it collided with a moped. The Jersey City Police Department investigated the accident and prepared a report containing information regarding the accident and plaintiff’s injuries. However, plaintiff failed to file with NJ Transit a notice of tort claim, showing her intent to pursue her claim, within the ninety- day time period, as required by the Tort Claims Act. The issue in Hutchins v. NJ Transit Corp., 2025 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 2, 2025) was whether the trial court should have granted plaintiff’s motion for leave to file a late notice of tort claim, when notice was filed just one day late.
This accident occurred when the bus made a sudden stop, which plaintiff claims caused her to strike the seat in front of her. She alleges that she suffered injuries to her neck, lower back, right knee, and a small laceration on her lip.
Shortly after the accident, plaintiff did consult with an attorney, who declined to take her case. However, this attorney did warn her of the strict ninety-day time limit to file her notice of tort claim. Thereafter, in mid-September, plaintiff consulted with a second attorney. Because of scheduling conflicts, the plaintiff did not meet with this new attorney until November 3, 2022, when she completed the notice of tort claim. However, she did not sign the notice of tort claim until a second meeting on November 7, 2022, when she provided her hospital bills to her counsel. But, her attorney miscalculated the expiration date of the ninety-day time period and did not file the notice of claim until November 15, 2022, which was ninety-one days after her accident. Thus, the notice of tort claim was filed one day late.
Plaintiff filed a lawsuit on May 11, 2023, and, on August 9, 2023, she filed a motion with the trial court, seeking leave to file a late notice of tort claim. The trial court found that the plaintiff did not meet her burden of “extraordinary circumstances” to justify a delay of filing the notice of tort claim and denied her motion, resulting in the dismissal of her lawsuit.
This order was appealed to the Appellate Division. Plaintiff argued that the trial court’s decision should be reversed because she was diligent in pursuing her claim and NJ Transit was aware of material information about the accident based upon the police report. She further argued that the trial court made a mistake in denying her motion for leave to file a late notice of tort claim because “the interest of justice” required that a one-day delay be considered a sufficient reason constituting an extraordinary circumstance.
The threshold requirement to be able to sue a public entity for a personal injury in New Jersey is to satisfy the notice requirement, as set forth in the Tort Claims Act. This notice requirement is strictly enforced by the courts. Based upon N.J.S.A. 59:8-8, a claimant who intends to pursue a claim for a personal injury must file a notice of tort claim with the pertinent public entity within ninety days after accrual of the cause of action, i.e., the date of the accident.
Pursuant to N.J.S.A. 59:8-9, if the claimant fails to file the claim with the public entity within the ninety-day time period, the claim is forever barred. However, N.J.S.A. 59:8-9 does provide an exception for a claimant who fails to file a notice of tort claim within ninety days, permitting the claimant to seek leave from a judge of the Superior Court within one year after the accrual of the claim, provided that the public entity has not been substantially prejudiced thereby. The application for permission to file a notice of tort claim must be supported by an affidavit in which the individual must show “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by Section 59:8-8.”
Here, plaintiff argued that she did diligently pursue her claim and that the details of the accident were set forth in the Jersey City Police Report and that NJ Transit was aware of the information contained in the police report. She also noted that her ability was limited after the accident, and she had to use crutches. Further, plaintiff’s counsel claims that his personal obligations caused a delay in meeting with the plaintiff which, in turn, contributed to the delay in filing the notice of tort claim. Plaintiff argued that based upon the totality of the unique facts and circumstances presented, and the interests of justice, the trial court decision barring plaintiff’s claim should have been reversed.
However, the Appellate Division pointed out that an attorney’s inattention, or even an attorney’s malpractice, does not constitute an extraordinary circumstance to justify the late filing of a notice of tort claim. The Court pointed out that plaintiff was able to consult with two attorneys prior to the ninety-day deadline and even executed a notice of tort claim within the ninety-day time period.
Plaintiff’s counsel conceded that he had a signed notice of tort claim by November 7, 2022, well in advance of the November 14, 2022, filing date. It was the plaintiff’s counsel’s miscalculation of the deadline that led to the late filing. The Appellate Division noted that neither an attorney’s inattention to a client’s file or even ignorance of the law constituted extraordinary circumstances to justify a late filing of tort claim.
The Appellate Division further rejected plaintiff’s argument that the defendant was aware of material information related to the accident which put them on notice of claims from injured passengers, including plaintiff. However, the Appellate Division found that NJ Transit may have received notice of this police report but that did not put it on notice that a particular plaintiff would be contemplating filing a claim against them. Hence, receipt of a police report would not constitute a timely notice that a tort claim would be filed against the public entity. As far as the potential prejudice to a public entity, that factor would only be relevant after a court determined that a plaintiff had demonstrated extraordinary circumstances.
Further, the plaintiff argued that a one-day delay in filing a tort claim notice was a “rare, unique circumstance that is a sufficient reason constituting extraordinary circumstances.” The Appellate Division rejected that argument, finding that the tort claim notice was not mailed within the ninety-day time period but only served after the deadline had passed. The Court pointed out that a notice of claim which is mailed certified mail within the time specified would satisfy the notice of claim requirement. But the statute did not create a general exception where a defendant could effectuate service beyond the timeframe set forth in this statute. Because the tort claim notice was not mailed within the ninety-day time period, the Appellate Division found that it was not timely filed.
Hence, the Appellate Division upheld the trial court decision, denying the plaintiff’s application for leave to file a notice of tort claim, resulting in the dismissal of her lawsuit.
