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Betty Hoff and Daniel Hoff, Her Husband v. Township of Milltown and County of Middlesex


August 2, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2289-10.

Per curiam.


Submitted July 26, 2011

Before Judges Sabatino and C.L. Miniman.

Plaintiff Betty Hoff*fn1 appeals orders dated April 19, 2010 and May 28, 2010 denying her leave under N.J.S.A. 59:8-9 to serve a late tort claims notice upon various public entity defendants. Because the trial court had a sound basis to conclude that plaintiff's application fell short of the stringent requirements of the statute, we affirm.

The record discloses the following pertinent chronology of events. On September 17, 2009, plaintiff fell while walking on a path within a wooded property near her home in Milltown Township. She claims that she tripped over a tree root. The fall caused her to fracture her left ankle.

Plaintiff consulted an attorney about one month later, on October 16, 2009, seeking to pursue compensation for her injury. The attorney, a solo practitioner, agreed to represent her. That same day, he sent a letter to the Milltown tax assessor seeking to ascertain the owner of the wooded property. He also sent a letter to the Milltown police department seeking a copy of the police report that may have been generated after plaintiff's fall. According to the attorney, he did not receive a response from either the tax assessor or the police department. The attorney contends that, in the absence of such responses, he remained unsure of the identity of the owner of the wooded property.

The attorney was cognizant that if the wooded property was, in fact, owned by a public entity, plaintiff was obligated, pursuant to N.J.S.A. 59:8-8, to serve a tort claims notice upon that entity within ninety days of the incident, as a precondition to the filing of a lawsuit under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. According to the attorney, his file clerk wrote "Betty Hoff 12/17" on a dry erase board in his office. The notation was intended to serve as a reminder that a tort claims notice in plaintiff's matter would be due by December 17, 2009, i.e., ninety days after her accident.

As the attorney described in an affidavit, the dry erase board was used in his office to display critical dates that "cannot be forgotten," such as statute of limitations deadlines, discovery end dates, and Title 59 notice dates. The board also displays the birthdays of staff members. The board hangs in a room where client files are kept, and is routinely passed numerous times daily. The attorney characterized the board as "the backbone of [his] internal security for [his] files," stating that he previously had "never experienced a problem with this system." The attorney typically checked to verify that the entries on the board were posted correctly.

Despite the posting of her deadline on the dry erase board, no tort claims notice was served on plaintiff's behalf within the statutory ninety-day period. Evidently, a member of the attorney's staff inadvertently erased the entry, not appreciating that this was potentially a Title 59 case. The attorney did not realize until March 23, 2010, three months after the deadline had passed, that no notice had been sent out. The attorney explained that "due to personal issues [his] mind was indeed clouded and pressured from work and non-work related issues." In particular, the attorney noted that one of his parents had been diagnosed with late-stage cancer in the fall of 2009, that he himself has had health problems, and that his law practice had experienced serious financial difficulties.

Upon realizing that no timely notices had been served, the attorney conferred with plaintiff, who advised him for the first time that a school is located adjacent to the woods where she fell. The attorney prepared a motion seeking to extend the time to serve tort claims notices, alleging extraordinary circumstances under N.J.S.A. 59:8-9. Still unsure of the ownership of the wooded property, plaintiff sought leave to serve late notices upon several public entities, including the Township of Milltown ("the Township"), Parkview Grammar School ("Parkview"), the Milltown Board of Education (the "Board of Education"), and the County of Middlesex ("the County"), who were named as defendants in an accompanying proposed complaint.

Parkview and the Board of Education (collectively "the school defendants") jointly opposed the motion. Opposition was also filed by the County.*fn2 The school defendants submitted a certification from the school superintendent, who stated that the Board of Education was unaware of plaintiff's potential claim until she served her motion papers in March 2010. The superintendent added that the Board of Education had no record of any accident occurring on or about the grammar school premises in September 2009, nor did it have a record of a report of any dangerous condition there during that month.

The trial court denied plaintiff's motion, on the papers, in an order dated April 19, 2010. Plaintiff then moved for reconsideration, complaining that her motion had been denied without oral argument and asserting that she met the criteria of N.J.S.A. 59:8-9.

After hearing oral argument on plaintiff's renewed application, the trial judge issued a bench ruling on May 28, 2010, once again denying relief under N.J.S.A. 59:8-9. Among other things, the judge determined that no extraordinary circumstances had been demonstrated to excuse the late notice, and that plaintiff's application was contrary to the policy objectives underlying the statute. The judge expressed sympathy for the personal hardships of plaintiff's attorney, but found them insufficient to overcome the time limitations imposed by the statute.

The judge further noted that plaintiff, who lives in the neighborhood, had "not provided a reason as to why she should not be charged with knowing that she fell on property that may belong to a . . . public school." In addition, the judge observed that the court had not been "presented with any argument or any information as to how plaintiff's age and/or injury prevented her from obtaining legal counsel or filing a notice of claim on time."

A corresponding order denying reconsideration was issued that same day, May 28, 2010.

Plaintiff then filed the present appeal. In the meantime, the Township assessor's office advised plaintiff's counsel in a letter in October 2010 that the property where she fell is indeed owned by the Board of Education and associated with the Parkview School. Consequently, plaintiff dismissed the County from this matter and she likewise has not pursued any claims against the Township.

In her appeal, plaintiff argues that she has met the requirements of N.J.S.A. 59:8-9, and that the trial court abused its discretion in finding to the contrary. Plaintiff maintains that the submissions from her attorney to the trial court, explaining why timely notices were not served, suffice to establish "extraordinary circumstances" under the statute. Moreover, plaintiff argues that the second element of N.J.S.A. 59:8-9 is met, i.e., that the school defendants would not be "substantially prejudiced" by allowing her suit to go forward.

As a threshold matter, we note that the trial court should have granted oral argument on plaintiff's original motion, as it was a substantive application and oral argument had been specifically requested in the motion filings. See R. 1:6-2(a). However, this oversight was cured, as the trial court did hear oral argument on the motion for reconsideration, and also considered the full substance of plaintiff's submissions, even those portions that had not been included in plaintiff's original motion papers but could have been.

That procedural observation aside, we turn to the merits of the appeal. In examining the issues before us, we bear in mind that our scope of review is limited. As plaintiff's brief rightly acknowledges, a trial court's order ruling on a motion to file a late tort claim under N.J.S.A. 59:8-9 should not be disturbed unless the court abused its discretion. See Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010). In applying that review standard, "we examine more carefully cases in which permission to file a late claim has been denied[,]" rather than granted. See Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 134 (1994) (quoting S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 122 (1977)).

Our careful examination of the record leads us to conclude that the trial court did not abuse its discretion in denying plaintiff's motion here. In particular, regardless of whether the school defendants were substantially prejudiced by the delay in notice, the reasons plaintiff provided for the delay, as exclusively attested to by her attorney, do not rise to the legal justification that case law has deemed to comprise "extraordinary circumstances" under N.J.S.A. 59:8-9.

The governing law is well-established. Under Section 8-8 of the Tort Claims Act, a notice of a tort claim must be served upon the allegedly negligent public entity within ninety days of accrual of the cause of action. See N.J.S.A. 59:8-8. However, the court, in its discretion, may allow a later filing if a claimant presents evidence establishing "sufficient reasons constituting extraordinary circumstances for [her] 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.

Prior to 1994, N.J.S.A. 59:8-9 allowed a late filing of a tort claims notice if there were "sufficient reasons" for the claimant's failure to file within the ninety day period. As amended to require "sufficient reasons constituting extraordinary circumstances," the statute now imposes a heavier burden on a claimant who wishes to file a notice of tort claim after the ninety-day period mandated by N.J.S.A. 59:8-8 has expired. In addition to meeting that requirement of "extraordinary circumstances," a claimant also must show that the public entity that he or she expects to sue will not be "substantially prejudiced" by the delay in being served with notice. N.J.S.A. 59:8-9.

The requirements of the statute usually have been stringently enforced. See, e.g., Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999) (declining to allow a late notice where a sixty-one year old immigrant sustained serious injuries after tripping over a pipe protruding from a sidewalk adjacent to residential premises, and ownership by the public entity did not become apparent to the plaintiff's attorney until after ninety days); O'Neill v. City of Newark, 304 N.J. Super. 543, 551-52 (App. Div. 1997) (disallowing a plaintiff's late notice when he did not seek legal advice until five months after he was shot in the leg).

There is no question in the present case that plaintiff's cause of action "accrued," for purposes of the statute, on the day of the accident that produced her leg fracture, i.e., September 17, 2009. See Beauchamp v. Amedio, 164 N.J. 111, 121 (2000) (holding that, for the purposes of the ninety-day time limit, a tort claim accrues when a plaintiff learns she is injured and not when she learns that the injury is serious). The pivotal legal question is therefore whether plaintiff presented sufficient evidence of "extraordinary circumstances" to justify the failure to serve timely notices within ninety days of that accrual date, i.e., by December 17, 2009. The trial court did not abuse its discretion in concluding that plaintiff failed to make such a compelling showing.

The main thrust of plaintiff's asserted justification for missing the ninety-day deadline is, in essence, the internal breakdown within her attorney's law practice, a breakdown that the attorney contends was influenced in part by the health and financial problems he was experiencing. As other cases have instructed, such a breakdown is generally insufficient to amount to "extraordinary circumstances" under the Tort Claims Act, or in similar contexts involving litigation deadlines.

For instance, in Zois v. New Jersey Sports and Exposition Authority, 286 N.J. Super. 670 (App. Div. 1996), the plaintiff was injured after stepping on a beer can in a restroom at the Meadowlands Sports Complex. The next day, the plaintiff retained an attorney, who wrote to the defendant, requesting an incident report. Thereafter, a secretary working for the plaintiff's attorney misplaced the client's file, resulting in the client missing the ninety-day deadline for filing a notice of tort claim under N.J.S.A. 59:8-8. We concluded in Zois that the breakdown within the attorney's office did not constitute "extraordinary circumstances," and thus "the claim against the public entity has been lost," regardless of whether there was prejudice to the defendant. Id. at 674.

Similar reasoning has been applied in contexts outside of the Tort Claims Act. See, e.g., Hartsfield v. Fantini, 149 N.J. 611 (1997) (holding that an attorney's heavy workload, his failure to supervise his secretary, and the departure of two attorneys from a four-attorney firm did not constitute "extraordinary circumstances" that would allow the plaintiff to file a post-arbitration trial de novo request out of time); Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306 (App. Div. 2001) (holding that an attorney's computer failure was not an "extraordinary circumstance" permitting an exception to the thirty-day time limit for filing for trial de novo from an arbitrator's award, even though counsel had no reason to suspect in advance that his office's computer system would not operate correctly); Rodriguez v. Luciano, 277 N.J. Super. 109 (App. Div. 1994) (holding that the plaintiff had failed to meet the "exceptional circumstances" required to defeat a motion to dismiss her case with prejudice for failure to answer interrogatories at a time when plaintiff's attorney was burdened with "staff problems").

Plaintiff cites to Williams v. Maccarelli, 266 N.J. Super. 676 (App. Div. 1993), in which a claimant was allowed to file a notice of tort claim late where the delay was the result of the claimant's attorney failing to properly supervise law students working in his office who were working on the claim. Id. at 679. However, as plaintiff acknowledges, Maccarelli was decided prior to the 1994 amendment to N.J.S.A. 59:8-9, when "sufficient reasons," rather than the more-stringent current test of "extraordinary circumstances," was the guiding standard.

Here, the failure of plaintiff's counsel's diary system, which depended upon a temporary notation marked on a dry erase board, appears to be the primary cause of the late notice. We concur with the trial court that the failure of that idiosyncratic tracking mechanism did not amount to "extraordinary circumstances." The date reminders written on the board could be inadvertently erased at any time. Although the system had apparently worked in the past, it was fraught with risk. That risk became reality in this case, exposing the pitfalls of the tracking system.

In addition, although we share the trial court's sympathy for the attorney's personal hardships, plaintiff has not proven the nexus between those personal difficulties and the failure to file a timely notice of a claim. It is sheer speculation that, had plaintiff's attorney not been under personal stress, he would have remembered, without any prompting, to file the notice of claim when the "backbone of internal security" within his office had been breached by his staff's mistaken erasure.

Moreover, it is a plaintiff's responsibility under the Tort Claims Act to show that she "was diligent and made reasonable efforts" to ascertain the true property owner of the premises where she sustained her injury. See Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 461-62 (App. Div. 2008). Such diligent efforts were not established here. Plaintiff lives in the area of the school, and she obtained legal representation less than one month after her accident. Although her attorney wrote to the police requesting the incident report and to the tax assessor's office seeking the ownership records, plaintiff herself should have also been more diligent and forthcoming with her attorney. It could easily have been envisioned that a wooded piece of land, adjacent to a public school, might belong to the school district or some other public entity.

Plaintiff and her counsel should have been aware, from the time that her case file was opened, that it was likely that a notice of a claim would need to be filed with the appropriate entity within ninety days from the date of the accident. As in Blank, supra, 162 N.J. at 152-53, a prompt and more through investigation should have been pursued, such as an inspection of the area itself, or a personal visit to the Township's offices to inspect the property records. The failure to do so should not be considered "extraordinary circumstances." Although we do not condone the alleged failure of local officials to respond within a reasonable period to the attorney's correspondence, there is no documentation in the record that the attorney followed up on his initial requests before the critical ninety-day deadline expired.

We also find it noteworthy that no affidavit or certification signed by plaintiff herself was submitted to the trial court in support of her motion. Her own failure to act in time has not been justified in any sworn submission that she personally executed. This conspicuous omission also bolsters our reluctance to disturb the trial court's ruling that extraordinary circumstances are lacking here.

In light of the foregoing discussion, we need not reach the second element of N.J.S.A. 59:8-9 and the question of whether the school defendants would be substantially prejudiced if plaintiff's motion had been granted.


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