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Under Narrow Circumstances, NJ Supreme Court Permits Filing of Late Notice of Claim When Claimant Identifies Correct Public Entity in Notice of Claim but Serves Wrong Entity

This case involves two fatalities following a multi-vehicle accident. Both Timothy O’Donnell and his 5 year old daughter B.O. were killed. Pamela O’Donnell, Timothy’s widow, retained an attorney who prepared a Tort Claims Act notice and identified the correct public entity in the Tort Claims Act notice but then served it upon the wrong entity. As it turned out, a separate claimant involved in the same accident did file and serve a timely tort claims act notice upon the correct entity. The New Jersey Supreme Court was asked to decide whether these circumstances constituted extraordinary circumstances so as to permit the filing of a late notice of claim.

Timothy O’Donnell was driving westbound on the New Jersey Turnpike with his daughter B.O. in the back seat. As they approached a tollbooth at Interchange 14C, Timothy’s vehicle was rear-ended by a vehicle travelling at a high rate of speed, propelling his vehicle onto the opposite side of the Turnpike and into oncoming traffic. Timothy was struck head on by an ambulance driven by Eliasar Morales, who was injured in the accident. Both Timothy and his daughter were killed.

Timothy’s widow, Pamela O’Donnell, hired counsel who served a notice of tort claim upon the Bureau of Risk Management of the State of New Jersey. The notice identified the New Jersey Turnpike Authority (“NJTA”) as a responsible party and alleged that its actions caused the deaths of Timothy and their daughter. The notice claimed that Timothy’s vehicle would not have been propelled to the other side if the Turnpike had installed safety barriers to separate opposing lanes of traffic. That notice was timely served upon the State but not the NJTA.

Thereafter, O’Donnell’s widow obtained new counsel, who served an amended notice of claim on the NJTA 197 days after the accident. Two days later, she filed suit against the NJTA. The NJTA filed a motion to dismiss the claim based upon the failure to timely file a notice of claim in 90 days, as required pursuant to N.J.S.A. 59:8-8. O’Donnell opposed the motion and filed a cross-motion seeking permission to file a late notice of tort claim, alleging that the NJTA would not suffer substantial prejudice and extraordinary circumstances justified the untimely filing. (N.J.S.A. 59:8-9 permits, upon the discretion of the trial judge, a notice of claim to be filed within one year after the accrual of the claim, if the public entity “has not been substantially prejudiced” and if the claimant can show upon affidavit “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim” within the 90 day time period.)

The trial judge found that O’Donnell had demonstrated extraordinary circumstances and allowed her to file a late notice of claim. This decision was appealed to the Appellate Division, which reversed. It found that the attorney’s failure to serve the proper entity did not constitute extraordinary circumstances and the State had no obligation to forward the wrongly filed notice to the NJTA.

O’Donnell filed a petition for certification, which the Supreme Court granted. It also permitted O’Donnell to expand the record to include the Morale’s notice of tort claim, which had been timely served upon the NJTA. Morale’s notice provided the details of the accident, as well as the allegation that the NJTA failed to install roadway safety barriers. It also attached the police report as to the incident.

The Supreme Court found that, in considering the totality of circumstances, that O’Donnell had demonstrated extraordinary circumstances. The Court noted that O’Donnell did not sit on her rights. She did retain counsel who, within the 90 day time period, prepared a proper notice of tort claim. The notice listed the NJTA as the responsible party and alleged that it was NJTA’s failure to install safety barriers to prevent vehicles from crossing into oncoming traffic that caused the deaths of her husband and daughter.

Further, the Court noted that the NJTA did receive a timely notice of claim from Morales, which notice of claim was nearly identical. It provided all of the details of the accident and the same theory of liability. His notice attached the police report, which explicitly listed Timothy and B.O. and indicated they died in the accident.

The Supreme Court analyzed the two tort claims notices together, in combination with the circumstances surrounding this terrible accident, and found that the NJTA was notified of its potential liability within the 90 days of the accident. Utilizing the Morales’ notice, the NJTA was able “to investigate potential claims from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect.” The Court found that when O’Donnell finally served her amended notice of claim, the NJTA was already aware of its potential liability and was not prejudiced by the untimely filing.

It seemed clear that the Supreme Court was limiting its holding to the “unique facts” presented in this case: that O’Donnell quickly pursued her claims against the NJTA, identifying the NJTA as the correct responsible party but improperly serving the State as opposed to the NJTA; that another claimant from the same accident, Morales, served a timely notice of claim on the NJTA, describing the exact circumstances of the accident and the same theory of liability against the NJTA; and that O’Donnell filed for leave within one year following the accident to file a late notice of claim.

The Supreme Court refers to this matter as a “rare” case, in which the claimant had presented adequate proofs indicating that the totality of facts and circumstances are extraordinary and, hence, the Court found it “consistent with the Tort Claims Act, its legislative history, our precedent, and the interests of justice to allow the claimant to pursue his or her claims against the public entity.” Thus, the Supreme Court reversed the Appellate Davison’s decision and reinstated the O’Donnell’s complaint.

This case can be found at O’Donnell v. New Jersey Turnpike Authority, 2019 N.J. LEXIS 42 (Jan. 14, 2019). Its holding will be of limited application. This was a narrow holding and cannot be construed to carte blanche excuse a plaintiff who names the correct public entity in a tort claims act notice, but serves the wrong entity. It seems that the tipping factor for the Court was that another claimant in the same accident had timely filed a Tort Claims Act notice, giving the NJTA notice of the O’Donnell fatalities. Hence, there was no prejudice to the NJTA in permitting the late notice to be filed.

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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.

Failure to File Timely Tort Claims Act Notice Should Not Bar Suit Against Municipality for Injuries Due to Chemical Vapors Based Upon Discovery Rule

Plaintiffs Edan and Edna Ben Elazar alleged that they suffered various personal injuries due to chemical vapors that infiltrated their electronics repair shop. The chemicals emanated from leaking underground storage tanks that belonged to the dry cleaner next door to the plaintiff’s shop but were buried in adjoining municipal property with the Township’s permission. In Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123 (2017), the issue litigated as to the municipality was whether the Tort Claims Act notice was timely filed. Under the facts of the case, the New Jersey Supreme Court ruled that the claim was not barred based upon the application of the discovery rule.

Back in 1946, the Township permitted the dry cleaner to locate underground storage tanks containing fuel oil and solvents on municipal property in a lane directly adjacent to the cleaner’s property. In 1998, contamination was discovered when the tanks were removed. The DEP was notified and cleanup activities began. They continued after the dry cleaner ceased operating in 2008. In late 2010, the dry cleaner’s environmental consultant began testing indoor air at properties adjoining to the cleaner, including the plaintiff’s shop.

In January 2011, the consultant wrote to the Township, with a copy to the plaintiffs, advising the Township that the indoor air pollution at the plaintiff’s place of business posed a health threat. On March 11, 2011, the cleaner’s consultant wrote directly to the plaintiffs, advising them that the sampling results showed that the indoor air sample in their basement contained chemicals that exceeded the DEP’s screening levels and was considered not acceptable due to a long-term health risk when breathing the contaminated indoor air. Neither letter mentioned that the tanks were located on Township property.

From the time that the plaintiffs opened their shop in 1988, they detected a chemical smell from the dry cleaner. Over the years, both of them experienced respiratory symptoms. Plaintiff Edan claimed that the contamination exacerbated his asthma. Both claimed that the chemicals caused them chronic respiratory problems. The record was clear that, as of the receipt of the March 11, 2011 letter, the plaintiffs were aware that the indoor air pollution from the cleaner posed a health risk to them.

Plaintiffs ultimately retained counsel in March 2012 who sent an OPRA request to the DEP. Upon receipt of the documents in July 2012, they learned that the dry cleaner’s underground storage tanks were located on Township property. Thereafter, they filed a notice of Tort Claim on September 4, 2012.

Suit was filed by the plaintiffs for their injuries and the Township was joined to that suit in September 2013. The Township filed a motion for summary judgment on the basis that the notice was not timely filed. The trial court granted the motion, which was appealed and affirmed by the Appellate Division.

On appeal, the plaintiffs argued that their September 2012 notice was timely. The Appellate Division rejected that argument. However, the case was further appealed to the New Jersey Supreme Court, which reversed the Appellate Division’s decision.

The Supreme Court noted that, under the Tort Claims Act “TCA”), a plaintiff must file a notice of claim with the public entity within 90 days of the accrual of the cause of action. Barring extraordinary circumstances, failure to do so bars any tort claim against the public entity.

The time period to file the TCA notice is the date upon which the claim accrues. The accrual date will depend on the date on which the alleged tortious act occurred. The discovery rule may apply depending upon whether the facts would alert “a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.” If a plaintiff knows he has suffered an injury but does not know that it is attributable to the fault of another, the Court held that the discovery rule tolls the date of accrual as to that unknown responsible party.

In the context of the TCA, the discovery rule would apply to the notice requirement. Hence, the discovery rule would toll the accrual date and the 90 day time period within which the injured party must file a notice of claim against a public entity is delayed until the injured party learns of the injury or of the third party’s responsibility for that injury.

Here, the letters sent by the consultant did not mention that the tanks were located on Township property. Nothing in those communications would have alerted a reasonable person that anyone other than the cleaner was responsible for the contamination. The evidence that the tanks were placed on public property was not disclosed until the DEP released documents in July 2012. Hence, under the circumstances, the Supreme Court found that the discovery rule applied. Thus, the notice of claim, filed in September 2012, was timely filed after the involvement of the municipality was disclosed.

Accordingly, the Court reversed the Appellate Division’s decision and the case was remanded back to the trial court.