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

March 12, 2013


On appeal from the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Hoens


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized).

D.D. v. University of Medicine and Dentistry of New Jersey (A-29/30-11) (068812)

Argued September 25, 2012 -- Decided March 12, 2013

HOENS, J., writing for a majority of the Court.

In this appeal, the Court considers (1) whether the inattention of plaintiff's counsel or her medical conditions constitute the "extraordinary circumstances" needed to excuse an untimely notice of tort claim under the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 to :12-3 (TCA); and (2) whether a timely oral notice of tort claim can be permitted under the doctrine of substantial compliance.

During a meeting with staff members of defendants Rutgers University and the University of Medicine and Dentistry of New Jersey (UMDNJ), plaintiff D.D. disclosed private health information that she requested be kept confidential. On November 24, 2009, D.D. discovered press releases issued by defendants that disclosed her private health information. Plaintiff immediately sent a letter directing defendants to cease and desist from communicating her personal information. Shortly thereafter, in December 2009, plaintiff, accompanied by counsel, met with representatives of defendants, accompanied by counsel. According to plaintiff, based on apologies and assurances made during the meeting, she believed that the matter could be handled privately. Plaintiff's attorney subsequently asked plaintiff for additional information, which she promptly provided. Although her attorney assured her that he would "take care of everything," he was thereafter unresponsive to her efforts to contact him, which included at least ten telephone calls. Because she was unable to reach him, plaintiff retained new counsel in April 2010.

On April 27, 2010, plaintiff's new attorney filed a motion seeking leave to file a late notice of tort claim. Plaintiff's motion was supported by certifications stating that defendants lulled her into inaction and failed to tell her that she needed to file a tort claim notice during their December 2009 meeting; that her first attorney failed to explain the statutory requirement and was unresponsive; and that the release of her personal information caused various health problems, including shock, stress, anxiety, fatigue, depression, elevated blood pressure, hypertension, respiratory insufficiency, insomnia, blurred vision, and lack of concentration. Plaintiff included a doctor's note dated May 20, 2010, stating that she "has hypertension that has recently worsened because of anxiety and acute stress reaction," "has difficulty concentrating and has insomnia secondary to this stress," and "that once her stress is reduced, her blood pressure, concentration and insomnia will improve if not resolve completely." The trial court permitted plaintiff to file a late notice of claim. The court recognized that plaintiff's cause of action had accrued on November 24, 2009, and that she had failed to file her notice within ninety days under N.J.S.A. 59:8-8. Using a totality of the circumstances approach, however, the court found "extraordinary circumstances" to permit a late notice under N.J.S.A. 59:8-9. The trial court considered plaintiff's medical conditions, that plaintiff promptly sought legal advice, and her first attorney's failures. The Court also found that defendants were not prejudiced by the delay and that the purposes of the notice provision were satisfied when the parties met in December 2009.

In a divided decision, the Appellate Division affirmed. The majority determined that the trial court did not abuse its discretion in finding sufficient extraordinary circumstances to excuse a late notice. The majority found that defendants' claim that plaintiff's medical conditions must render her incapacitated was inconsistent with the appropriate totality of the circumstances approach. The majority also found a potential legal malpractice remedy irrelevant to the determination of whether there were extraordinary circumstances. Finally, the majority concluded that plaintiff had substantially complied with the requirements for notice set forth in the statute. One judge dissented, finding that extraordinary circumstances require that plaintiff be physically or emotionally incapacitated during the ninety-day period, that attorney neglect or incompetence does not constitute extraordinary circumstances, and that the doctrine of substantial compliance is inapplicable. This appeal was taken as of right. R. 2:2-1(a)(2).

HELD: Neither attorney inattention nor incompetence constitutes an extraordinary circumstance sufficient to excuse failure to comply with the ninety-day filing deadline under the TCA; plaintiff's medical proofs were insufficient to meet the extraordinary circumstances standard; and the doctrine of substantial compliance cannot serve to relieve a claimant of the TCA's written-notice requirement.

1. Claims against a public entity for damages are governed by the TCA. N.J.S.A. 59:8-8 requires that pre-suit notification be provided to defendants within ninety days of a claim's accrual or "be forever barred." N.J.S.A. 59:8-9 permits a claimant who fails to file the notice within ninety days to, in the trial judge's discretion, file a 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," upon a showing of "extraordinary circumstances." Although the TCA originally required a showing of "sufficient reasons" to file a late notice, the Legislature amended the statute in 1994 to require a demonstration of "extraordinary circumstances," a more exacting standard. (pp. 21-25)

2. Plaintiff's proofs in support of extraordinary circumstances relate to her medical conditions and her first attorney's shortcomings. Appellate Division decisions have concluded that medical conditions meet the extraordinary circumstances standard if they are severe or debilitating, impacting the claimant's very ability to pursue redress and attend to the filing of a claim. Applying these precedents to the record, plaintiff's medical state did not meet the statutory threshold of extraordinary circumstances. There is no evidence that plaintiff's medical complaints were of sufficient immediate concern to her or were so significant in nature that she sought medical care to address them. Plaintiff's doctor's note did not attest to the severity of her medical conditions and is not tied to the relevant ninety-day time period. Instead, it was authored some six months after plaintiff learned that her confidential information had been released. In addition, far from being impaired in her ability to act, plaintiff recognized she had a complaint, corresponded with those she thought were responsible, retained an attorney, met with defendants, provided more information to her lawyer upon his request, and then placed at least ten telephone calls to him in her efforts to proceed. (pp. 25-30)

3. In Beauchamp v. Amedio, 164 N.J. 111 (2000), the Court addressed the implications of an attorney's misadvise about filing a tort claims notice. The plaintiff's attorney advised her not to file a tort claims notice because her doctor could not yet determine whether her injuries would be permanent ones. After the ninety-day time period had expired, plaintiff learned that her injuries were serious and permanent. The Court permitted her to file a late tort claims notice. The Court explained that the Appellate Division's suggestion in Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399 (App. Div. 1996), that the cause of action did not accrue until the injuries were found to be permanent and serious, misled the plaintiff's attorney into believing that an earlier filing of a tort claims notice would not be permitted. Concluding that the attorney's advice was incorrect but justified based on Ohlweiler, the Court found extraordinary circumstances. Beauchamp does not authorize a finding of extraordinary circumstances every time an attorney misperceives the date of accrual of a cause of action; rather, the Court found that general confusion about the law created sufficient reason for the attorney's ultimately inaccurate advice. (pp. 30-35)

4. Although plaintiff points to the failures of her first attorney, the Court finds no basis on which to read into the statute any requirement that plaintiff be advised of the technical requirements for pursuing a claim. An attorney's inattention to a file, or even ignorance of the law, does not equate with extraordinary circumstances for tort claims purposes. Beauchamp was not based on the attorney's shortcoming, but rather on a reasonable, albeit ultimately mistaken, perception of the TCA's requirements derived from a published Appellate Division opinion. The Legislature raised the statutory bar from sufficient to extraordinary, sending a strong message that, consistent with the TCA's limited waiver of sovereign immunity and the Court's usual strict construction of its requirements, the relief should be granted less frequently. Were the Court to agree with plaintiff, it would create an entirely new rule that would permit wide latitude to claimants and counsel to circumvent the Legislature's directive. The Court is not free to expand beyond the Legislature's statutorily-established boundaries. To the extent that the claim is barred by the attorney's failing, plaintiff's remedy lies in an action against the attorney for malpractice. (pp. 36-40)

5. It is well settled that the TCA demands, at a minimum, the filing of written notice. The Court's review of the statutory language establishing the essential requirements of a valid notice and its consideration of the underlying purposes that are served by the notice compel the conclusion that there is no basis to extend the substantial compliance theory to relieve plaintiffs of their obligation to file a written notice. (pp. 40-43)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for entry of judgment consistent with this opinion.

JUSTICE LaVECCHIA, dissenting, joined by JUSTICE ALBIN, expresses the view that the majority's holding is overly restrictive, undervalues the totality of the circumstances analysis, and misapplies the abuse of discretion standard of review.

CHIEF JUSTICE RABNER and JUSTICE PATTERSON join in JUSTICE HOENS's opinion. JUSTICE LaVECCHIA filed a separate, dissenting opinion in which JUSTICE ALBIN joins.

Argued September 25, 2012

JUSTICE HOENS delivered the opinion of the Court.

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3, is the statutory mechanism through which our Legislature effected a waiver of sovereign immunity. That waiver is not unlimited, but is bound by the Legislature's declaration of purpose, see N.J.S.A. 59:1-2, and enforced through the application of numerous express limitations embodied in the statute's provisions. Although the legislative declaration observes that part of the purpose for enacting the statute was to address the harsh consequences of strictly applying the common law contours of sovereign immunity, ibid., we have recognized that the "guiding principle" of the Tort Claims Act is "that 'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

Far from a broad waiver of sovereign immunity, the Act was the response of the legislative and executive branches to this Court's abrogation of that traditional common law doctrine. See Velez v. City of Jersey City, 180 N.J. 284, 288 (2004) (describing legislative history). And it is for this reason that we have often described the Tort Claims Act as the means through which the Legislature "re-establishe[d]" sovereign immunity. Id. at 289; see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457 (2009); Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2004); Alston v. City of Camden, 168 N.J. 170, 176 (2001). Faithful adherence to the Legislature's intent requires us to be mindful of this essential purpose of the statute when we consider questions concerning its application in novel circumstances.

Among the most important limitations that the Act imposes on would-be claimants are the ones that are found in the statutory provisions that govern a claimant's obligation to file a notice of tort claim as a prerequisite to initiating litigation. See N.J.S.A. 59:8-1 to -11. This matter, which comes before this Court through a dissent in the Appellate Division, see R. 2:2-1(a)(2), requires us to address two significant issues relating to these statutory notice requirements.

First, we consider whether the inattention of counsel retained by a plaintiff, either independently or in conjunction with the effect of that plaintiff's medical condition, is sufficient to meet the statutory standard of extraordinary circumstances needed for an extension of the ninety-day period allowed by the statute for filing of the notice of claim.

N.J.S.A. 59:8-9. Second, we address whether a claim that was reported only orally within the ninety-day time frame can be found, through the application of the doctrine of substantial compliance, to have been timely filed.

We conclude that neither inattention nor incompetence of counsel meets the extraordinary circumstances test devised by the Legislature. Therefore, in the absence of other sufficient evidence of extraordinary circumstances that prevented plaintiff from pursuing a timely tort claim, we hold that the court is not authorized to grant leave to file a late notice of tort claim on that basis. We further conclude that the meaning and intent of the statutory language regarding notice preclude application of the doctrine of substantial compliance so as to permit a notice of tort claim made without a writing to suffice.


The facts that give rise to this appeal are derived from the record compiled in the context of a motion for leave to file a late notice of claim. Plaintiff D.D. is the founder of a nonprofit community organization that promotes health awareness. In October or November of 2009, she met with staff members of defendants Rutgers University and the University of Medicine and Dentistry of New Jersey (UMDNJ) to discuss being the keynote speaker for an upcoming World AIDS Day program that was being sponsored by Robert Wood Johnson University Hospital. As part of that discussion, plaintiff disclosed confidential information about her health, but contends that she instructed those present to keep the information private and not to disclose it to any other persons under any circumstances. Plaintiff was then asked to provide an official biography that could be used in connection with publicizing the program and she admits that she did not comply with that request.

Plaintiff asserts that on or about November 24, 2009, while she was searching the internet for information about the World AIDS Day program in which she had agreed to participate, she discovered a press release about it that revealed her private and confidential health information. Although she was not able to identify the source of the press release, she believed it to be someone who had attended the meeting and who was employed by one of the defendants or by the sponsoring hospital.

Plaintiff asserts that she immediately sent a letter to defendants and to the hospital, directing that they "cease and desist from communicating such confidential information." More particularly, she represents that she told defendants "to remove the offending information from the internet, and to discontinue sending out any press releases." Shortly thereafter, in December 2009, plaintiff met with representatives of defendants to discuss what had transpired. She was accompanied by an attorney whom she had retained and she contends that one or more attorneys also attended the December 2009 meeting on behalf of defendants.

Plaintiff's description of what happened at the meeting is limited. She asserts that the representatives of defendants repeatedly apologized for the disclosures, asked what they could do to ameliorate the situation, and assured her that policies had already been implemented to ensure that it would not happen again. Based on those apologies and assurances, plaintiff contends that she believed "that the entire matter could be handled privately, without the need for further public humiliation and embarrassment." She does not reveal what, if any, specific demands she made nor does she explain what she believed defendants would be doing to address her concerns or to "handle" the matter.

Following the December 2009 meeting, plaintiff's attorney asked her to provide him with additional information, a request with which she promptly complied. Although her attorney assured her that he would "take care of everything," he was thereafter unresponsive to her efforts to contact him. She describes those efforts as including at least ten telephone calls, in which she left messages on his office telephone and his personal cell phone. During two of those calls, plaintiff spoke with the attorney's colleagues, each of whom told her that her attorney was out of the office teaching a class and assured her that they would give him a message that she had called.

The attorney, however, did not return her calls. Because she was unable to reach him, plaintiff retained new counsel in April 2010. On April 15, 2010, plaintiff's new attorney sent a letter to the Office of the General Counsel of Rutgers University. In that letter, the new attorney attempted to file a notice of tort claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 to :12-3. The letter was generally in the format of a tort claims act notice, see N.J.S.A. 59:8-4, and it specifically requested that Rutgers "waive any alleged late notice issues under the applicable statute." At about the same time, the new attorney apparently sent a similar letter to the General Counsel of UMDNJ.

Rutgers requested more detailed information about plaintiff's claims. UMDNJ responded to plaintiff's new attorney, advising that it considered the notice of tort claim to be untimely and plaintiff's claim therefore to be barred.


Because plaintiff's new attorney recognized that the notice was untimely and because defendants were unwilling to waive that defect, plaintiff commenced this litigation.


On April 27, 2010, plaintiff filed a motion in the Superior Court seeking leave to file a late notice of tort claim against defendants Rutgers and UMDNJ pursuant to N.J.S.A. 59:8-9. Plaintiff's motion was supported by a certification in which she gave two reasons for her failure to file a timely tort claims notice. First, she stated that during the December 2009 meeting with defendants' representatives, they did not advise her that she needed to file such a notice. Second, she described her reaction to learning about the dissemination of her personal information, explaining that she was in absolute shock. After that, I began exhibiting medical symptoms as a result of increased stress and anxiety, including but not limited to elevated blood pressure, fatigue, insomnia, depression and general anxiety. Other health issues have been exacerbated as a result of the increased stress and anxiety.

She asserted that at the time, her "primary concern was dealing with [her] medical conditions without regard to a potential lawsuit against defendants." She did not further describe any efforts that she undertook to address those medical conditions and she provided no documentary evidence to support the statements in her certification.

Rutgers opposed plaintiff's motion, arguing that plaintiff's April 15, 2010, letter was "the first and only notification forwarded to Rutgers concerning this alleged incident." UMDNJ likewise opposed plaintiff's motion. On May 24, 2010, plaintiff submitted a second certification in support of her motion. That certification offered a further explanation of the reasons for her failure to comply with the statutory notice requirement governing timeliness.

In plaintiff's second certification, she again asserted that she had not been told that she would need to file a tort claims notice, implying that defendants were obligated to do so and adding that she believed defendants had lulled her into inaction. In addition, she suggested that her first attorney had not explained the statutory requirement about notice and she detailed her unsuccessful efforts to reach him after she had given him the information he asked for following the December 2009 meeting.

Plaintiff also provided further information about the physical and emotional effects that she claimed the disclosure of her personal health information had caused. In addition to shock, stress, anxiety, fatigue and depression, plaintiff explained that her high blood pressure had worsened and that she had "developed serious hypertension which require[d] medication[,] . . . respiratory insufficiency, insomnia, blurred vision, and lack of concentration."

In support of her assertions about these health effects, plaintiff attached a brief doctor's note. Dated May 20, 2010, the note stated:

[Plaintiff] has hypertension that has recently worsened because of anxiety and acute stress reaction. In the past her blood pressure was controlled with lifestyle modification only, but since the recent stressors, she now has to be on oral blood pressure medication. She also has difficulty concentrating and has insomnia secondary to this stress.

It is my opinion that once her stress is reduced, her blood pressure, concentration and insomnia will improve if not resolve completely.

Finally, plaintiff asserted that the public disclosure of her personal health information had adversely affected her relationships with family, friends and professional colleagues. She explained that "I have noticed a marked change in attitude toward me which has hindered my ability to communicate with others" and that she had become "extremely uncomfortable when I attempt to speak ...

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