Plaintiff’s Written Injury Report of Pothole on City’s 311 Online Reporting System Found to be in Substantial Compliance of Tort Claims Act Notice Requirement

Plaintiff Eileen Martinez fell into a pothole on a Hoboken street on March 20, 2018, injuring her foot. On that same date, she messaged the City’s 311 online reporting system, identifying herself by her username and notified the City of the time, location, cause, nature and extent of her injury. Two days after receiving plaintiff’s message, the City sent an acknowledgment email to plaintiff and assigned a tracking number. The issue in Martinez v. City of Hoboken, 2019 N.J. Super. Unpub. LEXIS 2580 (App. Div. December 16, 2019), was whether plaintiff’s 311 online written notice substantially complied with the 90 day notice requirement under the Tort Claims Act.

When plaintiff submitted her 311 online reporting system message, she also attached photographs of her injured foot and the pothole. She did not include her full name and address in the 311 online submission to the City, nor did she sign the message other than to identify her username.

Six months after she fell, plaintiff retained counsel who notified the City of plaintiff’s injury and stated that plaintiff had complied with the Tort Claims Act by submitting the information to the City’s 311 online reporting system on March 20, 2018. Her attorney inquired of the City if it had a specific notice of claim form to proceed with her claim. Counsel specifically asked if the City considered plaintiff’s March 20 notice deficient or noncompliant with the TCA. The City forwarded its official notice of claim form to plaintiff’s counsel for completion but did not advise whether it deemed plaintiff’s March 20 notice deficient or noncompliant with the TCA. Plaintiff’s counsel thereafter submitted the completed official notice of claim form to the City five days after receipt.

Having received no response from the City regarding the acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative, plaintiff requested permission to file a late notice of tort claim.

The City opposed the motion, contending that it did not receive a tort claim notice from plaintiff until after October 15, 2018, seven months after the accident. Hence, the City argued that it could not have an expert opine about any alleged defect at the time of the accident, as road conditions significantly changed over seven months in the City due to weather, traffic, snow plowing and the passage of time. The City contended it was severely prejudiced by its inability to properly investigate.

The motion judge determined that the plaintiff’s March 20 notice substantially complied with the TCA. The judge found that the text notification on or about the day of the accident contained “sufficient information as to the type of the accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements.” On appeal, the defendant City argued that the judge made a mistake in deeming the plaintiff’s March 20, 2018 notice to be in substantial compliance with the requirements of the TCA.

Pursuant to the Tort Claims Act, no person may bring an action against a public entity for a personal injury unless the person presents the public entity with a notice of claim within 90 days after the cause of action accrued. Plaintiff contended that her March 20, 2018 message to the City’s 311 online reporting system filed within 90 days of her injury substantially complied with the TCA.

The Appellate Division stated that the doctrine of substantial compliance is an equitable doctrine intended to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Further, the Court noted that to warrant application of the doctrine of substantial compliance, the moving party must show: “(1) the lack of prejudice to the defendant party; (2) steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) reasonable notice of the plaintiff’s claim; and (5) a reasonable explanation by the moving party for why there was no strict compliance with the statute.” Here, the Appellate Division found that the City failed to show prejudice and plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.

The Court found that the 311 message to the City’s online reporting system included the date and location of the plaintiff’s injury, the injured body part, a photograph of her injury and the pothole, offered to provide additional information and photographs to the city to allow it to investigate her claim and me and her email address. Further, two days later, the City sent a reply to her message and provided tracking numbers under her claim. Thus, during the 90 day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. The court found that the plaintiff did take steps to comply with the TCA notice of claim and achieve the TCA’s purpose by notifying the City of her injury.

The Appellate Division was satisfied that the plaintiff had provided an acceptable explanation for failure to strictly comply with the notice of claim requirements of the TCA. Further, the Court rejected the City’s argument that it was prejudiced as result of the March 20 notice of claim. While it claimed to have never received this notice, it did respond to plaintiff and assigned a tracking number. Thus, the Court was satisfied that the 311 message was actually received.

Last, although the City claimed prejudice, just a sweeping generalization of prejudice is not enough to satisfy the prejudice requirement. The City was given the exact street location of the pothole that caused the plaintiff’s injury. The Court noted that the City could have inspected the intersection to confirm the condition of the road. There was nothing in the record explaining why under the circumstances, the City was unable to properly investigate any claim of the plaintiff or why it could have not have had an expert opine about any alleged defect at the time of the incident because plaintiff did provide information with the exact location of the pothole on March 20, 2018.

In summary, the Appellate Division found that the motion judge did not abuse her discretion in finding the plaintiff’s 311 message submitted to the City on March 20, 2018 to be in substantial compliance with the TCA’s requirements for notice of claim. Thus, the Appellate Division affirmed the trial court’s decision, finding that this 311 online report sufficient to satisfy the notice requirement of the Tort Claims Act, which will permit the plaintiff’s personal injury claim to proceed.


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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