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D.D v. University of Medicine and Dentistry of New Jersey; Rutgers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 27, 2011

D.D., PLAINTIFF-RESPONDENT,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY; RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,*FN1 DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3171-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2011

Before Judges Fuentes, Ashrafi and Newman.

In these consolidated appeals, defendants University of Medicine and Dentistry of New Jersey (UMDNJ) and Rutgers, The State University of New Jersey (Rutgers) (collectively defendants) appeal from the June 10, 2010 order granting plaintiff D.D. leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9.*fn2 We affirm.

The relevant factual background was summarized by Judge Alberto Rivas in his written opinion accompanying the June 10, 2010 order:

[Plaintiff] is the director of a community non-profit health organization. In November of 2009, [plaintiff] met with representatives of UMDNJ regarding her participation in Robert Wood Johnson's AIDS program's upcoming WORLD AIDS day observation in December of 2009. At that meeting, [plaintiff] disclosed personal health information and conveyed that she wanted the information to be kept confidential. She was further asked to be the keynote speaker at the World AIDS Day celebration and to provide a written biography. Although she accepted the invitation to participate, [plaintiff] did not provide the requested biography.

Subsequent to that meeting, in late November 2009, UMDNJ and Rutgers issued press releases regarding plaintiff's participation in the World AIDS day events. On November 24, 2009, [plaintiff] was sent information regarding the upcoming program from Ms. Theresa Fox of Rutgers University. After searching the internet, plaintiff discovered that her personal health information had been included in the press release and widely disseminated via Rutgers' and UMDNJ's websites, various newspapers, and other media sources. The Court notes that neither party has provided a copy of those releases and likely for good reason.

Upon discovering the press releases, [plaintiff] sent a letter to Robert Wood Johnson-UMDNJ and Rutgers ordering that they stop the dissemination of the confidential information. Thereafter, in December of 2009, [plaintiff] met with individuals associated with UMDNJ and Rutgers, including the Dean of Rutgers School of Nursing, William Holzemer, Dr. Argenta and attorneys. [Plaintiff] provides in her reply that she had counsel present with her at that meeting, Mr. Dwayne Warren, Esq. Apparently, [plaintiff] left the meeting with the impression that the parties wished to resolve the issue "informally." That impression was apparently based on apologies from individuals present on behalf of UMDNJ and Rutgers and assurances that the entities were investigating and addressing the issue.

Following the December 2009 meeting, [plaintiff] certifies that she suffered from increased severe stress and anxiety, hypertension, insomnia, respiratory insufficiency, blurred vision and a lack of concentration. [Plaintiff] attached an "order requisition form" from her physician, Dr. Nelson, in support of that representation. She also provides in her reply that she has experienced adverse effects on her personal and business relationships relating to the disclosure including an "exodus of some personnel" and difficulty in recruiting volunteers. Additionally, [plaintiff] certifies in her reply that she attempted to contact Mr. Warren on multiple occasions to no avail. For the record, [plaintiff's] current counsel also represented to the court that she attempted to contact Mr. Warren for purposes of this motion but he did not return her call.

Apparently the issues raised in the December 2009 meeting were not addressed as [plaintiff] expected. On April 7, 2010, she contacted her current counsel, Ms. Kleiner, and met with her on April 14th to discuss potential legal action. On April 15, 2010, Ms. Kleiner attempted to file Tort Claims Act Notices with UMDNJ and Rutgers. By way of letters attached to her certification, Ms. Kleiner was informed that UMDNJ considered the notice late and therefore barred and Rutgers requested additional information. Thereafter, [plaintiff] applied to this court on April 28, 2010 for an order allowing her to file late notices of tort claims with these entities. [(Footnote omitted).]

In addressing whether leave to file a late notice should be granted, the court quoted N.J.S.A. 59:8-9, which provides an exception to the ninety-day time limit from the date that plaintiff became aware of the injury which was fixed as November 24, 2009. N.J.S.A. 59:8-9 provides in relevant part:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8.

The trial court indicated that the motion was filed in April 2010 within the one year window provided by section 59:8-9. The trial court recognized that leave can be granted upon a finding of extraordinary circumstances and a lack of substantial prejudice to the public entities.

The trial court also recited the controlling case law which indicates that a determination of what will constitute extraordinary circumstances should be made on a case-by-case basis. O'Neill v. City of Newark, 304 N.J. Super. 543, 555 (App. Div. 1997).

With respect to plaintiff's cause, the court noted that she did what was expected of her to be done. As the trial court commented:

It appears that as soon as she discovered that UMDNJ and Rutgers had disseminated materials containing her private information, she sent those entities a letter notifying them of her concerns and contacted counsel, Mr. Warren. Counsel accompanied her to a meeting with representatives of those entities shortly thereafter in December of 2009, well within the 90 day notice period. After the meeting, [plaintiff] certifies that Mr.

Warren told her to provide him with certain information and documentation, which she did. She then continually attempted to follow-up with Mr. Warren on the progress.

This court is convinced that in accordance with the case law, [plaintiff] did everything she could to protect her rights and not simply within a reasonable time of the accrual of her claims, but within the 90 day notice period.

The court also pointed out that plaintiff's health condition following the incident deteriorated after the initial shock. She had "increased anxiety, acute stress respiratory insufficiency, insomnia, blurred vision, and a lack of concentration all resulting from the public dissemination of [plaintiff's] personal health information by the public entities." (Internal quotations omitted). This medical evidence was substantiated by her physician who noted "a worsening in her psychological and physical condition."

In evaluating whether or not extraordinary circumstances were present, the court was obliged to look at the totality of the circumstances. See R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006). In so doing, the trial court had this to say:

The collective impact of the circumstances includes the very nature of the injury sustained by [plaintiff] and the resultant impact on her life both personally and professional. Id. The public disclosure of medical information of an individual without consent is a severe violation of that person's right to privacy. This is particularly true when the very nature of that information may generate a strong social stigma against the individual. The court can only infer that the health information disclosed by Rutgers and UMDNJ involves a medical condition that has the potential to invoke public opprobrium. [Plaintiff] represented to the court that she has experienced deterioration in her psychological and physical health resulting from the act of the public entities and substantiated that assertion with some medical evidence. She also represents that she experienced negative impact in her personal and professional relationships with family, friends and colleagues including injury to her non-profit organization in the form of an exodus of some personnel and difficulty recruiting volunteers. [(Internal quotations omitted).]

The court concluded that there were "sufficient reasons to substantiate a finding of exceptional circumstances as required by section 59:8-9 of the Tort Claims Act."

Having made that finding, the court went on to address whether there was substantial prejudice, noting at the outset that neither UMDNJ nor Rutgers raised any "persuasive argument on the issue of any substantial prejudice either would suffer as a result of allowing a late filing of a notice of claim." The trial court pointed out that at the meeting plaintiff had in December 2009 within thirty days of discovering the press releases, she expressed her concern and the basis for her claims with attorneys present, including one for at least one of the public entities. Plaintiff also informed defendants that there might be "claims against them and were put on notice that an investigation should be conducted." On these facts, the court found no substantial prejudice for a late notice of claim filing.

On appeal, defendants contend that plaintiff did not establish extraordinary circumstances to file a late notice of claim and that it constituted an abuse of discretion for the trial judge to have so found. Rutgers asserts that plaintiff's physical and/or psychological condition was not such as to incapacitate her from filing her claim timely. Rutgers argues that in O'Neill, supra, the plaintiff did not demonstrate extraordinary circumstances where the plaintiff, an injured police officer who had been shot in the leg, delayed seeking legal counsel until after the ninety-day period had elapsed. Rutgers points out that there the police officer was able to go to a physician's office; therefore, the court concluded he was not so incapacitated that he could not have sought legal advice before the ninety-day period expired. Rutgers argues that the facts favor denial of plaintiff's motion even more so than in O'Neill. Rutgers contends that because plaintiff was represented by counsel within the statutory period and her physical and psychological condition did not interfere with her capacity to engage an attorney, no exceptional circumstances exist.

UMDNJ also argues that plaintiff's subsequent medical conditions were not so incapacitating as to constitute extraordinary circumstances. UMDNJ points out that plaintiff was neither hospitalized, underwent surgery, or confined to her home. The lack of incapacity did not constitute the kind of physical circumstances or psychological trauma to preclude her from engaging an attorney. In fact, UMDNJ argues that unlike O'Neill, she had an attorney from the inception.

UMDNJ also argues that plaintiff's former attorney's inaction was not an extraordinary circumstance, but provided a remedy for plaintiff other than against the public entities.

UMDNJ further notes that the decision in R.L., supra, cited by the trial court, does not support plaintiff's position. There, it was noted that the teenager who had been victimized by a teacher had learned that he had become HIV positive and was seriously preoccupied with death. R.L., supra, 387 N.J. Super. at 335-36. His young age and the teacher's supervisory authority over what were sexual criminal encounters and the stigma associated with being HIV positive convinced this court to permit the filing of a late notice of claim. Id. at 341.

Here, by contrast, plaintiff was an adult woman and her suit involved the invasion of her privacy when her medical condition was disseminated through press releases and other media forms of communication.

At the outset, we disagree with the approach of both defendants in parsing out the grounds that provided sufficient reasons for satisfying the extraordinary circumstance standard. It is the totality of the circumstances against which plaintiffs situation must be measured. The trial court did not indicate that plaintiff was too incapacitated to proceed. However, her medical condition had her psychologically stymied and represented an inhibiting and distracting force in her pursuing a timely filing.

With regard to the O'Neill case, the trial court pointed out that, unlike O'Neill, plaintiff did engage an attorney well within the ninety-day period. To counter this point, defendants contend that plaintiff's early retention of an attorney does not work in her favor when that attorney failed to file a timely notice of tort claim.

The fact that plaintiff engaged an attorney early should not be viewed in isolation or necessarily in defendants' favor and was not so perceived by the trial court. Plaintiff provided all of the requisites necessary for a notice of claim. She immediately sent a cease and desist letter when she learned of the improper disclosure of her personal health information. She met with representatives of Rutgers and UMDNJ and with at least one attorney present for the entities, along with her own attorney. An apology was made to her with an indication it would not happen again and revisions in their procedures would be implemented to insure that it would not reoccur. Plaintiff left with the impression that the matter would be handled outside a public forum where any further humiliation or embarrassment would be avoided.

All of the criteria of the requirements for notice set forth in N.J.S.A. 59:8-4 were met except for the filing of the notice itself. See Guerrero v. City of Newark, 216 N.J. Super. 66, 70-71 (App. Div. 1987). Plaintiff's actions satisfied the requirements: (1) plaintiff's name and address were known because she was to be the keynote speaker at the WORLD AIDS day program; (2) the name and address of the law firm representing her was known through the attorney's presence at the meeting; (3) the date, time, place, and alleged cause of the disclosure through the internet, various press releases, and other media outlets was fixed at November 24, 2009; (4) plaintiff had suffered injuries because of this privacy invasion disclosing confidential health information, the full extent of which were unknown; (5) the public entities responsible for the injuries were present and participated at the meeting; and (6) the extent of any medical expenses were presently unknown.

Because all the information necessary to be included in the tort claim notice had been provided, the purpose behind the notification requirement was served. We have recognized four purposes:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense[,]; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet. [Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal citations and quotations omitted).]

Here, plaintiff has substantially complied with the notice requirement and the public entities were both in an early position to adequately investigate the facts, have an opportunity to correct the practices that gave rise to the claim, and could determine what type of liability reserve might be required. All of this was well within the ninety day timeframe. Indeed, it had occurred in less than a month from when the damaging disclosure was brought to plaintiff's attention on November 24, 2009.

Contrary to our dissenting colleague's contention that we misapplied the doctrine of substantial compliance, we referred to this doctrine as well as the purposes behind the Act which were fulfilled here to inform the discretionary decision made by the trial court in granting leave to file a late notice of claim. The standard of extraordinary circumstances was not in any way diluted by the approach used to evaluate the discretion reposed in and exercised by the trial court.

Indeed, instead of consenting to plaintiff's request to file a late notice of claim, defendants chose to oppose the application instead of waiving the formal prerequisite. This was the rare case where plaintiff had a face-to-face meeting with the responsible parties within a month of the wrongful disclosure. Defendants apologized and left plaintiff with the impression the matter would ultimately be resolved without the added expense of litigation. We expect governmental bodies like defendants to turn square corners. See Gruber v. Mayor & Twp. Comm., 73 N.J. Super. 120, 127 (App. Div.) ("If we say with Mr. Justice Holmes, 'Men must turn square corners when they deal with the Government,' it is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens."), aff'd, 39 N.J. 1 (1962).

Notwithstanding that the purpose of the Tort Claims Act has been satisfied by plaintiff's rapid action, defendants point to plaintiff's then attorney who failed to file the formal notice of tort claim timely for which plaintiff may have a remedy. Unlike the attorney in Zois v. N.J. Sport & Exposition Auth., 286 N.J. Super. 670, 674 (App. Div. 1996), who blamed the late filing on his forgetfulness and his secretary's misfiling paperwork, which was imputed to plaintiff's detriment, no such imputation should be drawn here. According to plaintiff, her attorney did not respond to her numerous attempts to contact him. This failure to respond was also experienced by plaintiff's present attorney who left a message with the attorney's office and received no response from that prior attorney.

The Rules of Professional Conduct, R.P.C. 1.3 expect "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Under R.P.C. 1.4, Communication (b), "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Not only did plaintiff's first attorney fail to inform plaintiff about what subsequently occurred following the meeting with defendants' representatives, but he did not respond to plaintiff's calls to request such information. The attorney's conduct cannot be imputed to plaintiff. The fact that plaintiff may have a potential legal malpractice remedy is really beside the point and should not have a preclusive effect in the determination of whether extraordinary circumstances were present under these circumstances.

We need not address the issue of substantial prejudice because neither Rutgers nor UMDNJ argue that they sustained substantial prejudice, much less any prejudice. In fact, plaintiff had provided all the requisites of notice of the claim in expeditious fashion to enable defendants to investigate the claim and have sufficient time within six months to resolve it before plaintiff could file a law suit. N.J.S.A. 59:8-8.

"The granting or denial of permission to file a late claim is a matter left to the sound discretion of the trial court, and [should] be sustained on appeal in the absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). This court will review "more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible, cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Eagan v. Boyarsky, 158 N.J. 632, 642 (1999) (quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)).

We are convinced that Judge Rivas's grant of leave to file a late notice of tort claim was well within his discretion based on the collective impact of the combination of factors present. See Lowe, supra, 158 N.J. at 629. We discern no abuse whatsoever in granting relief to file a late notice of claim.

Affirmed.

RECORD IMPOUNDED

FUENTES, J.A.D., dissenting

In permitting plaintiff to proceed against the University of Medicine and Dentistry of New Jersey (UMDNJ) and Rutgers, The State University of New Jersey (Rutgers), despite her failure to file the notice required by N.J.S.A. 59:8-4 within the timeframe established in N.J.S.A. 59:8-8, the majority misapplies the doctrine of substantial compliance to overlook the "extraordinary circumstances" standard for granting such relief codified by the Legislature in N.J.S.A. 59:8-9. Because this approach eviscerates the clear mandate of the Legislature and runs counter to well-established precedent, I respectfully dissent.

As a jurisdictional prerequisite to filing a suit against a public entity or public employee, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -14-4, requires a claimant to file a notice of claim, N.J.S.A. 59:8-3, within ninety days of the accrual of such claim. N.J.S.A. 59:8-8. This notice of claim must be signed by the claimant, N.J.S.A. 59:8-5, and, at a minimum,*fn1

contain the information required under N.J.S.A. 59:8-4.

The salient facts of this case are undisputed. Plaintiff's claim against defendants accrued on November 24, 2009, when, by her own admission, she "learned that [her] confidential and personal health information had been widely disseminated via a press release" by employees of the two public entities. Thus, plaintiff was required to file the TCA notice by February 22, 2010. She did not do so.

Instead, plaintiff met with representatives of Rutgers and UMDNJ sometime in December 2009 "to discuss what had transpired." By this time, plaintiff had retained an attorney who "accompanied" her to this meeting. According to plaintiff, the representatives of the public entities apologized to plaintiff at this meeting and assured her that "such a disclosure would never happen again, as there was now a firm policy to prevent such a public disclosure from ever occurring again."

Plaintiff claims that as a result of this meeting she was "lulled into thinking that the entire matter would be handled privately, without the need for further public humiliation and embarrassment." However, the record before us is barren of any specific details of what was said at this meeting. More importantly, we do not know whether plaintiff threatened litigation against the public entities, or if any form of compensation was demanded by plaintiff or offered by defendants. Without more, plaintiff's certification does not support any claims of waiver or estoppel as it relates to the requirements of the TCA notice provisions.

Plaintiff "contacted [her attorney] on several occasions" after the December 2009 meeting. Counsel asked her to submit unspecified "information to him," which plaintiff claims she did. Counsel assured her that he "would take care of everything and get back to [her.]" Plaintiff alleges that counsel was not true to his word. According to plaintiff, she called her attorney at least ten times after the December 2009 meeting (and subsequent to my providing him with the requested documents in December 2009). I left messages on his phone and cell phone. I also spoke with two of his colleagues, who advised me that on those occasions [the attorney] was out of the office teaching class. They said they would give him a message that I called. Despite my numerous attempts to contact [the attorney], and many messages I left for him, [the attorney] did not return any of my calls. [(Emphasis added).]

Plaintiff also claims that from the date of the unauthorized disclosure of her personal information in November 2009, to April 2010, she was in a "state of shock and disbelief." This caused her anxiety and increased stress. She consulted a physician who also treated her for hypertension. During this same time period, however, plaintiff met with defendants' representatives, retained an attorney, responded to the attorney's request for certain documents, and persistently called the attorney "at least ten times" seeking information on the status of her claim. Thus, plaintiff was not physically or emotionally incapacitated during the critical window of time in which she had to file the required TCA notice.

Plaintiff retained her present counsel in April 2010. By letter dated April 15, 2010, without leave of court, plaintiff's new counsel sent defendants the TCA notice of claim. Defendants rejected this notice as untimely under N.J.S.A. 59:8-8. On April 20, 2010, counsel moved before the Law Division seeking leave of court to file a late notice of claim under N.J.S.A. 59:8-9, which provides:

A claimant who fails to file notice of his claim within 90 days as provided in [N.J.S.A.] 59:8-8 . . . may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by [N.J.S.A.] 59:8-8 . . . or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. [N.J.S.A. 59:8-9 (emphasis added).]

Despite clear evidence to the contrary, the trial court accepted the assertions in plaintiff's certification that "her health condition following the incident that gave rise to her claim against UMDNJ and Rutgers kept her from filing her claim within the 90 day notice period." Citing Beauchamp v. Amedio, 164 N.J. 111, 122-23 (2000), the trial court held:

In the case at hand, [D.D.] did exactly what the above cases require. It appears that as soon as she discovered that UMDNJ and Rutgers had disseminated materials containing private information, she sent those entities a letter notifying them of her concerns and contacted counsel . . . [who] accompanied her to a meeting with the representatives of those entities shortly thereafter in December of 2009, well within the 90 day notice period. After the meeting, [D.D.] certifies that [her attorney] told her to provide him with certain information and documentation, which she did. She then continually attempted to follow-up with [the attorney] on the progress. This court is convinced that in accordance with the case law, [D.D.] did everything she could do to protect her rights and not simply within a reasonable time of the accrual of her claims, but within the 90 day notice period.

The trial court's reliance on Beauchamp to support a finding of "extraordinary circumstances" here is misplaced. In Beauchamp, the plaintiff's delay in filing the required TCA notice was attributable to her reliance on the good faith, yet ultimately incorrect advice of her attorney. Beauchamp, supra, 164 N.J. at 122-23. Relying on our opinion in Ohlweiler v. Township of Chatham, 290 N.J. Super. 399 (App. Div. 1996) (holding that a claim against a public entity did not accrue until there was sufficient objective evidence of permanency entitling the claimant to pain and suffering damages under N.J.S.A. 59:9-2(d)), the plaintiff's attorney in Beauchamp advised the plaintiff not to file the TCA notice until he had sufficient medical evidence to overcome the permanency threshold. Beauchamp, supra, 164 N.J. at 122. The TCA notice was ultimately filed outside the ninety-day time period. Id. at 115. Under these circumstances, the Court in Beauchamp concluded:

Because of the confusion surrounding the issue of accrual at the time that Beauchamp consulted her lawyer about this case, we think further inquiry is required. Beauchamp's lawyer, cognizant of Ohlweiler, advised Beauchamp that her claim was premature. That advice, though incorrect, was justified so as to warrant extension of the time for filing in this case under the extraordinary circumstances doctrine. In reaching that conclusion, we note that Beauchamp did everything she could to protect a potential claim. She sought medical attention immediately and she sought legal advice. Because she relied on legal advice that was derived from the confusion surrounding this issue, we think she deserves to be granted relief from the ninety day filing requirement of the statute. [Id. at 122-23 (emphasis added) (internal citations omitted).]

By contrast here, plaintiff's first lawyer did not provide her with erroneous, yet good faith advice about the timeliness of her claims. Indeed, there is nothing in the record before us addressing whether plaintiff's first lawyer gave her any advice about the TCA notice requirements. There is only one clear reason explaining plaintiff's action, or better yet, inaction: plaintiff did not file the TCA notice within the time mandated by N.J.S.A. 59:8-8 because her first lawyer did not tell herthat she needed to do so. As plaintiff herself stated in her certification, she was insistently looking for guidance from her first lawyer. When she finally decided to consult a second attorney, the TCA notice issue was immediately addressed.

The facts here are also strikingly different from the compelling circumstances we confronted in R.L. v. State-Operated School Dist., 387 N.J. Super. 331 (App. Div. 2006). The plaintiff in R.L. was sexually molested by his teacher over a period of years, beginning when he was fourteen years old. Id. at 335. The misconduct escalated from inappropriate "touching" to sexual intercourse during the plaintiff's junior and senior years of high school. Ibid. The last incident occurred in July 2004, within a month of the plaintiff's graduation and "shortly after his eighteenth birthday." Ibid.

In May 2005, the plaintiff in R.L. tested positive for HIV, and reported his illness and the teacher's misconduct to the Board of Education. Id. at 336.

Following his diagnosis, R.L. was "very distressed." He cried every day and rarely left his home. Family and friends cared for him. He felt like he was going to have a nervous breakdown and was preoccupied with thoughts of death. Although R.L. felt compelled to take action to protect other students by reporting to school officials and police, he was hesitant to reveal his HIV status and was unaware of the legal requirements of the Act. [Ibid.]

After a newspaper story revealed the plaintiff's name, his allegations of misconduct against the teacher, and his HIV diagnosis, the plaintiff consulted an attorney who in turn promptly sought leave of court to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Ibid. The trial court granted the plaintiff's motion. Ibid. On the defendant's appeal we affirmed, holding that "under the totality of these circumstances, we cannot conclude that the Judge abused her discretion." Id. at 341.

Here, plaintiff's account of her experiences and emotional and physical state during the time after she met with defendants' representatives and her decision to retain new counsel are not relevant to a determination of "extraordinary circumstances" because she was already represented by counsel of her choice during this critical window of time. As discussed in detail infra, what caused plaintiff to delay filing her notice of claim within the timeframe established in N.J.S.A. 59:8-8 was her attorney's failure to respond to her numerous calls and advise her of this statutory deadline.

This case is about alleged attorney neglect. Attorney neglect or incompetence does not constitute "extraordinary circumstances" within the meaning of N.J.S.A. 59:8-9. Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674-75 (App. Div. 1996). As Judge Dreier aptly noted in Zois, in a case where the plaintiff is precluded from prosecuting a claim against a public entity because of an attorney's neglect or incompetence in adhering to the procedural requirements of the TCA, the plaintiff's remedies "lie elsewhere." Id. at 676.

The majority nevertheless attempts to circumvent the clear standard in N.J.S.A. 59:8-9 by invoking the doctrine of substantial compliance. Such an approach is both legally untenable and factually unwarranted. My objection to the invocation of this doctrine to justify plaintiff's failure to timely file her TCA notice is best explained by reviewing, in some detail, our recent decision in Lebron v. Sanchez, 407 N.J. Super. 204 (App. Div. 2009), in which this court applied the doctrine of substantial compliance to permit the plaintiff to prosecute a claim against a public entity despite certain deficiencies in the content of the notice under N.J.S.A. 59:8-4.

The plaintiff in Lebron was a minor child who was injured when she was struck by an automobile while walking home from her local elementary school. Id. at 210. She provided a timely TCA notice to the Camden Board of Education which purported to comply with the content requirements of N.J.S.A. 59:8-4. Ibid. This notice identified the name of the injured child, her attorney, the date of the occurrence, a brief narrative description of the accident, and a description of the injuries the child sustained, including a demand of $1,000,000 in damages. Ibid. At the request of the Board's insurance carrier, the plaintiff also completed a supplemental notice form. Id. at 210-11. In response to a question on this supplemental form asking her to "[s]tate, in detail, each and every alleged negligent or wrongful act of the Public Entities and Public Employees, previously noted, which caused your damage," the plaintiff answered: "[c]rossing guard." Id. at 211.

Although the accident occurred in 1995, plaintiff's minority status at the time permitted her to file this action within two years of reaching the age of majority. Thus, on July 2, 2004, plaintiff filed a complaint against the Board alleging, inter alia, negligent supervision and failure by the Board to hire a crossing guard. Id. at 211. After engaging in discovery, the Board learned that certain facts had not been disclosed by the plaintiff in her 1995 TCA notice, including that a teacher may have assisted the children crossing the street and that the Board had sent notice to the parents that the after-school program ended at 4:00 p.m. Ibid.

Acting on the Board's motion, the trial court dismissed the plaintiff's complaint, holding that the plaintiff's 1995 TCA notice "failed to advise the Board" of the bases for its potential liability and thus "[did] not substantially compl[y] with the notice requirements of the Act, resulting in a fatal bar to the presentation of most of her causes of action." Id. at 212.

On appeal by the plaintiff, we reversed. As we explained in Lebron,

[t]he doctrine [of substantial compliance] requires the moving party to show: (1) the lack of prejudice to the defending party;

(2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim; and (5) a reasonable explanation why there was not strict compliance with the statute. [Id. at 216 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003)).]

Applying these principles to the facts before it, the Lebron court found a sufficient basis to conclude that the timely written notice provided by the plaintiff, though technically deficient as compared with the strict requirements of N.J.S.A. 59:8-4, satisfied the underlying goals of the statute, which are to provide the public entity with sufficient information "to evaluate its liability and potential exposureand, if it chooses, to correct a defective condition and also to engage in settlement negotiations prior to the commencement of the suit." Id. at 215 (quoting Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004) (internal citation and quotation marks omitted)). Thus, the procedural requirements of the TCA are not intended and should not be invoked to trap the unwary. Lebron, supra, 407 N.J. Super. at 215.

The doctrine of substantial compliance is intended to avoid the strict notice requirements of N.J.S.A. 59:8-4(c) operating as a complete bar for recovery against a public entity. It was not intended, and has never been invoked, to relax the time requirements in N.J.S.A. 59:8-8. The standard for such relief is exclusively found in N.J.S.A. 59:8-9. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 680 (App. Div. 1999); see also Henderson, supra, 373 N.J. Super. at 637-38.

Here, the majority treats the doctrine as a magic filter through which all of plaintiff's procedural missteps are miraculously cured. Most importantly, the majority misapplies the doctrine by substituting it for the "extraordinary circumstances" standard for relief under N.J.S.A. 59:8-9. Finally, plaintiff does not argue substantial compliance as a basis to uphold the trial court's ruling, and the trial court itself did not rely on the doctrine to justify its position. Inshort, this doctrine has no role to play in this case, and its application to the facts at hand seriously undermines the protections afforded to public entities by the Legislature.

"The grant or denial of permission to file a late claim within the one year period is a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Ohlweiler, supra, 290 N.J. Super. at 403. Under the circumstances presented here, I am satisfied that the trial court abused its discretionary authority because plaintiff cannot show extraordinary circumstances under N.J.S.A. 59:8-9 to justify her failure to file the notice required by N.J.S.A. 59:8-4 within the timeframe established in N.J.S.A. 59:8-8.

I therefore respectfully dissent.


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