On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9858-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011 - Decided Before Judges Reisner and Sabatino.
Defendant Newark Housing Authority (Authority) appeals from a December 18, 2009 order of the Law Division, permitting plaintiff Raquel Moreno to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9.*fn1 Because plaintiff did not establish extraordinary circumstances justifying the late filing, we are constrained to reverse.
We briefly summarize the evidence presented in support of plaintiff's motion. Plaintiff's tort claim notice alleged that on January 13, 2009, she fell in an icy parking lot on premises owned by the Authority. In support of her motion to file the notice out of time, plaintiff attested to the following facts. Plaintiff, a home nurse's aide, fell in the parking lot of an apartment building, after leaving an appointment with a patient who lived in that building. Soon after the fall, she developed pain in her "neck, low back, right shoulder and right arm." Since the fall occurred while plaintiff was working, her employer arranged for a doctor to examine her.
She was initially diagnosed with sprains, which the doctor told her were not serious, and she continued to work. However, when the symptoms did not go away, the doctor sent her for an MRI in March 2009. According to plaintiff, on March 23, 2009, the doctor told her "that the MRI had shown something torn in my right shoulder" and that she would need surgery followed by "extensive therapy." The doctor also told her that she would have to miss ten to twelve weeks of work and he "raised the possibility that the injury to the right shoulder would be permanent and cause me problems for the rest of my life." However, despite receiving this information, plaintiff did not consult an attorney.
She attested that she delayed in having the surgery until July 2009, for financial reasons. After she had the surgery, some friends advised her to consult an attorney because she might have a legal claim against the owner of the parking lot. Accordingly, on July 15, 2009, she consulted a law firm whose offices were "located only a block from my home." At that point she learned that the property where she fell was probably owned by the Authority and she needed to file a tort claim notice. Plaintiff also contended that she did not read English or speak English well, and did not have "time" to seek legal advice until July.
Her attorneys first sent notice of the accident to the Authority's counsel on July 21, 2009. They submitted a tort claim notice on August 11, 2009, and filed a motion for leave to file a late claim notice dated November 30, 2009.
In an oral opinion issued December 18, 2009, the Law Division judge concluded that the circumstances were "extraordinary," because plaintiff did not understand English and there was a delay before she learned that her injury was serious and that a public entity owned the parking lot where she fell. He considered that plaintiff was reasonable in waiting until she knew she had a serious injury "that would warrant litigation," and that the Authority was not prejudiced by the delay.
Under the Tort Claims Act, N.J.S.A. 59:8-8, a notice of tort claim must be filed within ninety days of the incident giving rise to the cause of action. However, the court in its discretion may allow a later filing if a claimant presents evidence establishing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter. [N.J.S.A. 59:8-9.]
In Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399 (App. Div. 1996), on which plaintiff heavily relies, we found that a plaintiff established extraordinary circumstances where her initial injuries appeared minor, and she promptly consulted an attorney who advised her that she had no basis to file a tort claim notice. She later filed a notice after her medical condition unexpectedly deteriorated. We held that she had shown extraordinary circumstances, where the "change in plaintiff's physical condition was unusual, unanticipated and unexpected." Id. at 405. We also reasoned that, until she knew she had a permanent injury, a notice of tort claim would have been a "frivolous" filing. Ibid.
However, that aspect of our opinion in Ohlweiler was specifically disapproved in Beauchamp v. Amedio, 164 N.J. 111, 120 (2000). In Beauchamp, the Court held that, for purpose of the ninety day time limit, a tort claim accrues when the plaintiff learns ...