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Court Finds Plaintiffs Presented Extraordinary Circumstances Sufficient to Permit Filing of a Late Notice of Tort Claim

This matter arose from a tragic fire that occurred on April 8, 2021, at the three-story single-family residence owned by the defendant Newark Housing Authority and occupied by plaintiff Kadisha Jones Richardson and her five children.  Plaintiff Tyron Hartfield, the biological father of four of the five children, was also present at the time of the fire.  During the fire, plaintiffs’ seven-year-old son, Saahir, passed away.  Further family tragedies happened after the fire.  The issue in Richardson v. Newark Housing Authority, 2023 N.J. Super. Unpub. LEXIS 1119 (App. Div. July 5, 2023) was whether the trial court properly granted the plaintiffs’ motion for leave to file a late notice of tort claim to permit plaintiff to sue the Newark Housing Authority for losses suffered from the fire.  No tort claim notice had been filed in the required ninety (90) day time period following the loss.

In addition to the trauma of suffering the death of their son, Hartfield suffered a broken ankle in his attempt to rescue his son and the entirety of the family’s possessions were destroyed.  Plaintiffs and their family were forced to move in with Richardson’s mother.  During this time, Richardson was also caring for her mother, whose physical health was declining.  Less than three months after the fire, Richardson’s mother suffered a stroke and was hospitalized and ultimately passed away.  Further, Richardson was injured in a serious car accident.

In their motion for leave to file a late notice of tort claim, plaintiffs certified that in the months following the fire, they suffered from depression and anxiety from the loss of their son and their stress was further compounded by attending to the mental well being of their other children who had lost their brother and then Richardson’s mother.  Although plaintiffs received a death certificate on April 16, 2021, they still did not have the official cause of death or cause of the fire until November 2021.  On October 29, 2021, the plaintiffs had consulted a law firm for the first time.  However, on December 2, 2021, that law firm declined representation.

Plaintiffs retained their current counsel in March 2022.  Once counsel was retained, counsel promptly filed a motion for leave to file a late notice of tort claim on April 6, 2022, just two days shy of the one-year anniversary of the fire.  The trial court found that though plaintiffs did not file within the notice of tort claim within the required ninety (90) days of the accrual date, they did demonstrate extraordinary circumstances which permitted a late filing.  Specifically, the trial court found that there was excusable neglect on the part of the plaintiffs due to the extraordinary circumstances present.  The court found that the plaintiffs had suffered life-altering events and resulting psychological traumas which continued well beyond the ninety (90) days to file following the April 8, 2021 fire.  Thus, the trial court granted the motion to permit the late filing of the tort claim notice to permit the plaintiffs to pursue the Newark Housing Authority in a lawsuit.

The Newark Housing Authority appealed that order, arguing that there were no extraordinary circumstances present.  The Housing Authority argued that plaintiffs were physically capable of contacting an attorney in a timely fashion and should have done so at the earliest opportunity, irrespective of their constructive or actual knowledge of the ninety (90) day window for filing the notice of tort claim.

Upon appeal, the Appellate Division noted that for a claimant to pursue a claim against a public entity for personal injuries, it must file a notice of tort claim not later than the nineth (90th) day after accrual of the cause of action, pursuant to N.J.S.A. 59:8-8.  The date of accrual of a cause of action in tort is typically the date of the incident.  The penalty for failing to file a timely notice of tort claim is that the claimant is forever barred from bringing their claim against the public entity. 

However, the Court noted that the Act provides an exception to plaintiffs where the ninety (90) day period has lapsed and allows prospective claimants to file a motion within one year from the accrual of the cause of action “where they demonstrate extraordinary circumstances” to justify filing a late notice of tort claim.  Pursuant to the statute, the claimant must also demonstrate that the public entity has not been substantially prejudiced by the late notice.

The Appellate Division found that the trial court judge exercised “appropriate discretion” in determining extraordinary circumstances existed in the present facts.  The Court disagreed with the defendant’s argument that extraordinary circumstances equated to physical incapacity.  The Appellate Division noted that there was nothing in the statute or case law that required a plaintiff be physically unable to contact an attorney.  Although physical incapability may be sufficient to prove extraordinary circumstances, it is not a necessary pre-condition for a finding of extraordinary circumstances.  The Appellate Division noted that the trial judges are afforded a wide latitude in determining extraordinary circumstances.

Thus, the Court agreed with the trial court findings that extraordinary circumstances were present based upon the facts of the case.  Therefore, the Appellate Division affirmed the trial court decision, permitting the claim to move forward, based upon the strong public policy in favor of resolving the application on the merits. 

Court Confirms Arbitration Award Despite Plaintiff’s Counsel’s Claim of Failure to Receive Notice that Award Was Posted on E-Courts

Defendant Richard Bahadurian contracted with plaintiff Deegan Roofing, Inc. to repair a section of roof on a commercial building defendant owned.  After the work was performed and defendant failed to pay for the work, plaintiff filed a breach of contract lawsuit to recover the unpaid invoice, interest, cost and attorney’s fees.  The lawsuit proceeded to the court-ordered arbitration, in which the arbitrator ruled in favor of plaintiff, entering an award, plus counsel fees to be determined by the court.  The issue in Deegan Roofing, Inc. v. Bahadurian, 2023 N.J. Super. Unpub. LEXIS 764 (App. Div. May 19, 2023) was whether the defendant was entitled to relief from the 30-day period to file for a trial de novo after the arbitration award because he did not receive an e-mail from the court stating that the award had been posted on e-Courts.

Defendant had admitted that he did not pay for the work performed but claimed that the contractor plaintiff caused “extensive and significant damage” to his building, as well as to his commercial tenant’s equipment and personal property.  The parties conducted discovery and, thereafter, attended the court-ordered arbitration on September 30, 2020.  The arbitrator ruled in favor of plaintiff, awarding $34,150, plus counsel fees and costs to be determined by the court and dismissing defendant’s counterclaim.  At the hearing, the arbitrator advised counsel that the decision would be uploaded into e-Courts.  On October 1, 2020, in fact, the arbitration award was entered into e-Courts. However, defendant’s counsel claimed that he never received the notice that the award had been entered into e-Courts.

In New Jersey State court, e-Courts is an electronic filing system in which all pleadings, correspondence, orders, etc., including an arbitration award are posted onto the on-line docket.  Once they are posted, all counsel of record, would normally receive an e-mail notifying that there was an item posted to the e-Court docket for that particular case.

Following the arbitration hearing, defense counsel e-mailed plaintiff’s attorney expressing his dissatisfaction with the award and advised that a request for a trial de novo would be filed.  The de novo request was due in thirty (30) days from the date the arbitration award was entered into e-Courts.  Hence, it was due by November 2, 2020.  While it is mandatory to participate in the court arbitration, any party can file and serve a notice of rejection of the award and a demand for a trial de novo.  

If the case has not been settled and no party has filed for a trial de novo, within fifty (50) days of the award, any party can file a motion to confirm the arbitration award.  On November 3, 2020, plaintiff did file a motion to confirm the arbitration award.  Defendant opposed the motion, claiming that he never received an e-mail advising the award was uploaded into e-Courts, nor did he receive a copy of the award.  One week after the motion to confirm the award was filed, defendant’s counsel filed a notice of demand for a trial de novo.

Thereafter, the trial court granted plaintiff’s motion to confirm the arbitration award.  The court found that the defendant had failed to comply with the court rules which required a party to file a notice of rejection of the arbitration award and demand for a trial de novo within the thirty (30) day period after the filing of the award.

The court found that the award was uploaded to e-Courts on October 1, 2020.  Even though defendant’s counsel claimed he did not receive an e-mail stating the award was posted on e-Courts, that did not relieve him from filing a demand for a trial de novo within the thirty (30) day period.  The court found that the failure to receive this notice did not provide the “extraordinary circumstances” necessary to permit the filing of a trial de novo outside the prescribed thirty (30) day period.

Thereafter, the court granted plaintiff’s motion for attorney’s fees and ordered that the defendant pay plaintiffs $8,001 in counsel fees and costs.  The defendant appealed the court’s order denying the rejection of the trial de novo request and asked for the attorney’s fee award to be overturned as well.

Upon appeal, the Appellate Division agreed with the trial court decision.  The Court noted that “extraordinary circumstances” to extend the thirty (30) day time frame should be strictly construed and it does not include excusable neglect nor does it encompass an attorney’s or their staff’s negligence or carelessness. 

The Court rejected defendant’s argument that his failure to receive an e-mail advising him that the arbitration award was posted as constituting “extraordinary circumstances” to extend the mandatory thirty (30) day filing period and permit the untimely November 10 de novo filing. 

The Court also affirmed the award for attorney’s fees, finding that attorney’s fees were permitted for the contract language.  Further, although the trial court should have permitted oral argument, it did perform a thorough analysis to arrive at the award.  The Appellate Division found no abuse of discretion in the counsel fee award.  Hence, the trial court’s decision to confirm the arbitration award was affirmed, as well as the trial court’s award of attorney’s fees. 

Mode of Operation Found to Apply to Accident Caused by Brown Substance on Floor of Bagel Store

Plaintiff, Samira Aly, was a customer at defendant A&H Bagels.  While walking to throw out her trash, she fell and suffered a serious injury.  Both deposition and video surveillance footage showed a brown substance on the floor near where she fell.  The issue in Aly v. A&H Bagels & Deli, Inc., 2023 N.J. Super. Unpub. LEXIS 695 (App. Div. May 8, 2023) was whether the trial judge made a mistake in refusing to charge the “mode of operation” standard in considering the summary judgment motion filed by the defendant A&H. 

Unfortunately, both the incident report and a log of inspections to the premises was lost in a subsequent fire.  However, Aly’s fall on the brown substance was documented through A&H Bagels’ surveillance footage but the footage was taken into police custody after the fire and never viewed by Aly.

At the trial court level, the defendant A&H filed a motion for a summary judgment dismissal, which was granted.  Plaintiff Aly appealed, arguing that the trial court failed to apply the appropriate “mode of operation” standard and, even absent the applicability of the mode of operation standard, the plaintiff argued that A&H Bagels should have had constructive notice of the brown substance on the floor near the trash receptacle.

While in a typical premises liability case, a plaintiff must prove that the defendant had notice of the alleged dangerous condition that caused the accident, when the mode of operation rule applies, it creates an inference of negligence and the burden shifts to the defendant to negate the inference by submitting evidence of due care.  When this doctrine applies, it relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition.  Instead, it requires a defendant to show that it did “all that a reasonably prudent man would do in light of the risk of injury the mode of operation entailed.”

The Appellate Division disagreed with the trial court’s failure to apply the mode of operation standard and found that it should have been applied.  The Court noted that “[l]ike the businesses previously found to have created the hazard by their self-service nature, A&H Bagel’s format requires courts to contemplate its duty through a mode of operation standard as well.”  Further, the Appellate Division found that the trial court failed to adhere to the summary judgment standard of giving all reasonable inferences to the plaintiff when it granted A&H Bagel’s motion.

The Court noted that the customers at the bagel shop purchased sandwiches, coffee in cups, and juices in closed containers at the counter and then carry their food and beverages to their seats to eat before disposing of their trash in the receptacle.  The customers wait on themselves after being served at a counter.  The Appellate Division noted that “this is exactly the situation where the burden should shift to the defendant to show that they acted reasonably considering this specific business format.”  Further, the Court held that “[t]he dangerous condition caused by the brown substance near the trash receptacle was a foreseeable risk posed by the bagel shop’s mode of operation.”  Hence, the Appeals Court found that the mode of operation rule did apply to this scenario.

The Appellate Division further reversed the trial court’s ruling that, even if the mode of operation rule did apply to this setting, A&H Bagels had met its burden because “they did all that a reasonably prudent shop would do considering the risk of injury the mode of operation entailed.”  The Appellate Division found that the trial court improperly concluded that A&H Bagels took all reasonable actions.  The Court found that there were genuine issues of material fact that only a jury could decide.  It was disputed exactly how much of the brown substance was on the floor, whether the brown substance caused the fall and also how soon before the fall were their inspections and garbage changes.  It should have been up to the jury to decipher whether defendant acted reasonably no matter whose burden it becomes to prove that.

Therefore, the Appellate Division reversed the trial court’s summary judgment dismissal.  It found that the mode of operation standard should have been applied.  Further, assuming it is applied, the jury must decide whether the defendant acted reasonably based upon its “mode of operation” to protect its invitees from the alleged dangerous condition, i.e., the brown substance on the floor. 

Plaintiff’s Failure to Prove Property Owner Had Actual or Prior Notice of Ice on Steps Merited Dismissal of Lawsuit

Plaintiff Karimah Sharif slipped and fell, allegedly on ice, while walking down the exterior steps of the rear entrance of defendant’s commercial building.  On the morning of the accident, plaintiff had visited her son who had an office in the building and did not notice any ice on the steps.  The issue in Sharif v. Dominant Domain, LLC, 2023 N.J. Super. Unpub. LEXIS 368 (App. Div. Mar. 14, 2023) was whether the plaintiff was entitled to pursue a personal injury lawsuit against the defendant commercial property owner when she did not recall seeing ice, nor was plaintiff able to prove that the defendant property owner had actual or constructive notice of the ice on the steps.

While the plaintiff did not notice any ice while walking up the steps upon her arrival, when she left the building, she started going down the steps and ended up on the ground.  She testified at her deposition that she saw ice on the bottom steps but could not recall exactly how many of the five steps she traversed had ice.  Plaintiff could not recall seeing ice on the top couple of steps, which she claimed she slipped upon. 

It did not snow or rain on the day of the accident and plaintiff could not recall the last time it had snowed.  The owner of the building testified at a deposition that there was no precipitation on the steps, although there were leftover piles of snow from the previous storm.  Based upon the owner’s observation immediately after the accident, she did not observe any ice on the steps.

Further, the owner and her operations manager examined the steps each time they entered or exited the building.  The stairs were inspected up to 20 times a day.  However, on the day of the incident, the owner had entered the building only once before plaintiff’s fall.

The defendant property owner filed for a summary judgment, claiming that there was no evidence to demonstrate that it possessed actual or constructive notice of the alleged dangerous condition on the stairs.  The trial court judge rejected plaintiff’s claim and found that plaintiff had failed to prove that the defendant had actual or constructive notice of the dangerous condition.  Further, the trial court noted that the plaintiff failed to present an expert liability report to establish a standard of care regarding snow removal protocols and noted that the stairs were inspected several times a day.

Upon appeal, the Appellate Division agreed that the plaintiff was required to prove that the defendant had actual or constructive notice of an alleged dangerous condition to pursue a negligence claim.  Further, the Appellate Division noted that “[a] defendant may counter with evidence it conducted regular inspections of the site where the injury occurred.”  To prove constructive notice, the plaintiff had to prove that the condition existed “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.” 

The Appellate Division agreed with the trial court’s conclusion that there were no facts to support that the defendant proprietor had actual or constructive notice of an icy condition prior to plaintiff’s fall.  The Court noted the plaintiff’s lack of recall of seeing ice on the steps she fell upon either prior or after her fall.  She failed to offer evidence of weather conditions that could have proven ice accumulated on the steps between the time she went into the building in the morning and at the time she exited in the afternoon.  Further, she could not recall the last time it had snow or precipitated.

The Appellate Division noted the undisputed testimony that the proprietor and her staff frequently checked the exterior pathways around the building.  Further, it pointed out that the proprietor did not see any ice or precipitation in this area before or after the accident.  Thus, plaintiff was unable to demonstrate that the defendant proprietor had actual or constructive notice of an icy condition on the steps. 

Finally, the Court noted that to the extent plaintiff attempted to claim a structural defect of an adjacent gutter which may have dripped and caused a patch of ice, she was required to proffer an expert report “about the construction, design, condition, or maintenance of the gutter or its placement in relation to the stairs.”  Hence, the Appellate Division found that plaintiff failed to establish a prima facie case of negligence and held that the defendants were entitled to a summary judgment as a matter of law.  Thus, the Court affirmed the trial court’s decision to dismiss the case.

Failure to Provide Notice of Claim Form to Plaintiff’s Counsel Insufficient to Justify Filing a Late Notice of Tort Claim

On June 4, 2021, plaintiff Joshua Jackson slipped on an unidentified liquid on the stairs between the first and second floors of a building owned by Defendant City of Passaic Housing Authority.  Plaintiff alleges that he attempted to obtain a notice of claim form from the Authority but was unsuccessful. Less than one week before the ninety day Tort Claims Act deadline (to file a notice of claim) elapsed, plaintiff retained counsel who purportedly called the Authority and asked for a notice of claim form but was sent an incident report. The issue in Jackson v. City of Passaic Housing Authority, 2023 N.J. Super. Unpub. LEXIS 119 (App. Div. Jan. 27, 2023) was whether the plaintiff had shown sufficient reasons constituting extraordinary circumstances justifying his failure to timely file notice of his accident with the defendant Authority.

The facts appear to be somewhat disputed whether the plaintiff’s counsel called and asked for a notice of claim form or, rather, whether he simply asked for an incident report.  However, there was no dispute that the notice of tort claim was not filed until eight days past the ninety-day statutory deadline, as required under the Tort Claims Act.

The plaintiff filed a motion seeking leave from the trial court to file a late notice of claim.  The trial court denied this application, finding that N.J.S.A. 59:8-4 specifically enumerated what was supposed to be in the claims form.  Further, the court found that, even if the defendant Authority failed to provide plaintiff with a notice of claim form, that did not constitute extraordinary circumstances in the trial court’s view to justify missing the statutory deadline. (Accordingly, his claim was barred.)

Upon appeal, the Appellate Division noted that, pursuant to the Tort Claims Act, a public entity is not liable for an injury, except for as provided by the Act.  The Act provides that, prior to the filing of a formal complaint, a claimant must provide the public entity with a notice of claim no later than the ninetieth day after accrual of the cause of action.  That date would typically be the date the negligent conduct causing injury occurred.  Further, if a claimant fails to timely file a notice of claim with a public entity within this ninety-day time period, the claim is permanently barred.  The Court noted that the purpose of this deadline is to “compel a claimant to expose his intention and information early in the process in order to permit a public entity to undertake an investigation while witnesses are available and the facts are fresh.”

The Court further noted this ninety-day filing requirement is not completely inflexible and the claimant is permitted, in limited circumstances, to make a motion for leave to file a late notice of tort claim.  However, the motion must be “supported by Affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for the failure to file the motion, and the public entity must not be substantially prejudiced by the late notice.”  It is up to the trial court to determine whether extraordinary circumstances exist.

Here, the plaintiff argued that the trial court failed to consider all the facts and circumstances surrounding the late claim by failing to consider the notice was only eight days late, plaintiff timely retained counsel, and a lack of prejudice to the Authority.

The Appellate Division, however, rejected this argument and agreed with the trial court that plaintiff failed to demonstrate extraordinary circumstances to justify his failure to file the notice of claim within the ninety day window.  The Court found that plaintiff was represented by counsel prior to the expiration of the applicable time period. 

According to the facts presented, the delay in filing was due to lack of due diligence, which the New Jersey Supreme Court has held is insufficient to establish permissible filing of a late notice.  Further, the Court stated that there is no standard “form” that must be filed.

Plaintiff failed to present any evidence, nor cited to any case law, statute, or regulation to support his position that he should be permitted to file an untimely notice because he was only slightly late.  The Appellate Division noted that the Legislature’s waiver of sovereign immunity remains a limited one and they are not free to expand that waiver beyond its statutorily established boundaries.  Hence the Appellate Division affirmed the trial court’s decision, denying the plaintiff’s motion to file a late notice of tort claim.

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