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O'Donnell v. New Jersey Turnpike Authority

Supreme Court of New Jersey

January 14, 2019

Pamela O'Donnell, Individually, as Administratrix Ad Prosequendum for the Estate of Timothy O'Donnell, as Administratrix Ad Prosequendum for the Estate of B.O., a minor, and as Guardian Ad Litem of A.O., a minor, Plaintiffs-Appellants,
v.
New Jersey Turnpike Authority, Defendant-Respondent, and Service McCabe Ambulance, Elisar Morales a/k/a Eliasar Morales, and Scott Hahn, Defendants.

          Argued November 28, 2018

          On certification to the Superior Court, Appellate Division.

          Justin Lee Klein argued the cause for appellants (Hobbie, Corrigan & Bertucio, attorneys; Justin Lee Klein and Jacqueline DeCarlo, on the briefs).

          Christopher R. Paldino argued the cause for respondent New Jersey Turnpike Authority (Chiesa Shahinian & Giantomasi, attorneys; Christopher R. Paldino, of counsel and on the briefs, and Chelsea P. Jasnoff, on the briefs).

          Michael J. Epstein argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, on the brief).

          Robert J. McGuire, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Robert J. McGuire, on the brief).

          SOLOMON, J., writing for the Court.

         This appeal arises from the tragic deaths of Timothy O'Donnell and his five-year-old daughter, B.O., following a fatal multi-vehicle accident on the New Jersey Turnpike. Timothy's widow and B.O.'s mother, Pamela O'Donnell (O'Donnell), sought to hold the New Jersey Turnpike Authority (NJTA) liable for the wrongful death of her husband and daughter pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3.

         The Court considers whether extraordinary circumstances exist under N.J.S.A. 59:8-9 to permit the untimely filing of a notice of claim when: (1) the claimant pursues her claims against a public entity in good faith within ninety days of the accident and identifies the proper entity in her notice of claim, but serves the wrong public entity; (2) a separate claimant serves a timely notice of claim on the correct public entity pursuant to N.J.S.A. 59:8-8, citing the exact circumstances, parties, and theories of liability in his or her notice; and (3) the claimant then invokes N.J.S.A. 59:8-9's procedure for obtaining judicial approval of an untimely notice of claim within one year of the accident giving rise to the tort claim.

         On a February afternoon, Timothy O'Donnell was driving on the Turnpike with his five-year-old daughter B.O. in the rear passenger seat. Timothy's vehicle was violently rear-ended and propelled onto the opposite side of the Turnpike and into oncoming traffic, where it was struck head on by an ambulance driven by Eliasar Morales. Both Timothy and B.O. died as a result of the accident.

         Within ninety days of the accident, O'Donnell's attorney served a notice of claim on the Bureau of Risk Management of the State of New Jersey but not the NJTA as is required by the Tort Claims Act. The filed notice of claim described the fatal accident and named the NJTA as the responsible state agency and listed its address. O'Donnell alleged that the NJTA's negligence caused the deaths of Timothy and B.O. Specifically, the notice stated that Timothy's vehicle would not have propelled to the opposite side of the Turnpike had the NJTA installed safety barriers to separate opposing lanes of traffic.

         O'Donnell retained new counsel who served an amended notice of claim on the NJTA one hundred and ninety-seven days after the accident. Two days later, O'Donnell brought suit individually, on behalf of the estates of Timothy and B.O., and as guardian of her minor daughter who was not involved in the accident.

         The NJTA filed a Rule 4:6-1 motion to dismiss the complaint, contending that O'Donnell failed to serve the notice of claim within ninety days of the accident pursuant to N.J.S.A. 59:8-8. O'Donnell opposed the NJTA's motion and filed a cross-motion for leave to file a late notice of claim under N.J.S.A. 59:8-9, which permits a claimant to apply to the court for permission to file a late notice of claim if the public entity will not suffer substantial prejudice and extraordinary circumstances justify the untimely filing.

         The trial court denied the NJTA's motion to dismiss and granted O'Donnell's cross-motion. It found that O'Donnell failed to serve timely a notice of claim on the NJTA and that service on the State did not constitute service on the NJTA under the Tort Claims Act. Nevertheless, the trial court found that O'Donnell had demonstrated the existence of extraordinary circumstances and allowed her to file a late notice of claim.

         The Appellate Division reversed. Applying the standard set forth by this Court in D.D. v. University of Medicine & Dentistry of New Jersey, 213 N.J. 130, 157-58 (2013), the panel concluded that there were "no obstacles" preventing O'Donnell's first attorney from identifying the NJTA as the proper entity to be served, and that her second attorney's prompt remedial action and service of an amended notice on the NJTA was insufficient to constitute extraordinary circumstances.

         The Court granted O'Donnell's petition for certification. 235 N.J. 407 (2018). The Court also granted O'Donnell's motion to expand the record. The expanded record included Morales's notice of claim, which he timely served on the NJTA. His notice of claim cited the exact circumstances surrounding the collisions, named the involved parties, and alleged the same theory of liability against the NJTA.

         HELD: Under the limited circumstances of this case, extraordinary circumstances existed justifying O'Donnell's late filing.

         1. The Tort Claims Act imposes strict requirements upon litigants seeking to file claims against public entities. Under N.J.S.A. 59:8-8, a claimant must file a notice of claim with the public entity "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-4 sets forth six categories of information that the notice of claim must contain. The notice of claim, further, must be filed directly with the specific local entity at issue. N.J.S.A. 59:8-7. When enacting the notice of claim provision of the Tort Claims Act, the Legislature sought to afford to public entities an opportunity to plan for potential liability and correct the underlying condition. (pp. 11-13)

         2. Recognizing the harshness of N.J.S.A. 59:8-8's ninety-day deadline, the Legislature created a mechanism through which a claimant could obtain judicial approval to file a late notice of claim under certain circumstances: N.J.S.A. 59:8-9 permits a claimant to apply for leave to serve a late notice of claim on a showing of extraordinary circumstances, so long as the application is filed within one year of the accrual of the claim and the public entity has not been substantially prejudiced by the delay. The Court has analyzed the imprecise "extraordinary circumstances" standard on a case-by-case basis. (pp. 13-15)

         3. In Lowe v. Zarghami, a patient brought a medical malpractice action against a physician who left a metallic clip in her body during surgery. 158 N.J. 606, 611, 613 (1999). The physician was employed by a public entity, but the surgery was performed at a private hospital. Id. at 611-12. The Court applied the extraordinary circumstances exception because the failure to file a timely notice arose "not from any lack of diligence," but rather because the physician's "status as a public employee was obscured by his apparent status as a private physician." Id. at 629. The Court explained that a late notice would prejudice neither the physician nor his employer: No investigation was hindered by the untimely filing, and, given the discovery of a metallic object in the patient's body, the physician "must have been aware of the possibility of a malpractice suit." Ibid.; see also Ventola v. N.J. Veterans Mem'l Home, 164 N.J. 74, 82 (2000) (finding extraordinary circumstances where, due to understandable confusion concerning the status of a veterans' home, notice was initially served on a federal rather than state entity but full documentation of incident in medical records prevented prejudice); Beauchamp v. Amedio, 164 N.J. 111, 122-23 (2000) (recognizing that the attorney's confusion that led to a late filing was derived in part from a previous decision of the Appellate Division and applying the extraordinary circumstances exception to allow an untimely notice of claim). In D.D., the Court determined that attorney malpractice, in and of itself, could not satisfy the extraordinary circumstances threshold. 213 N.J. at 157. (pp. 15-18)

         4. Here, there is no allegation that the NJTA did anything to impede timely service, and the statute in its current form imposes no obligation on the State to forward the notice of claim to the NJTA or to notify O'Donnell of her counsel's error. However, O'Donnell submits proofs beyond her attorney's error that, when considered in their totality, demonstrate extraordinary circumstances: (1) O'Donnell quickly pursued her claims against the NJTA in good faith and identified the correct responsible party and its address in a properly completed notice of claim, but her attorney improperly served the State; (2) Morales served a timely notice of claim on the NJTA under N.J.S.A. 59:8-8, listing the exact circumstances surrounding the accident and the same theory of liability against the NJTA; and (3) O'Donnell pursued N.J.S.A. 59:8-9's procedure for permission to file a late notice of claim within one year of the accident. Because the legislative purposes of the Tort Claims Act have been satisfied and O'Donnell's untimely filing will not prejudice the NJTA, this is not the type of case that the Tort Claims Act intended to weed out. In the rare case, such as this one, where the claimant sets forth adequate proofs indicating that the totality of facts and circumstances are extraordinary, it is consistent with the Tort Claims Act, its legislative history, Court precedent, and the interests of justice to allow the claimant to pursue his or her claims against the public entity. The Court recognizes that the Appellate Division rendered its judgment without knowledge of Morales's notice of claim. (pp. 19-23)

         The judgment of the Appellate Division is REVERSED, the complaint is REINSTATED, and the matter is REMANDED to the trial court for further proceedings.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA join in JUSTICE SOLOMON'S opinion. Justice TIMPONE did not participate.

          OPINION

          SOLOMON JUSTICE

         This appeal arises from the tragic deaths of Timothy O'Donnell and his five-year-old daughter, B.O., [1] following a fatal multi-vehicle accident on the New Jersey Turnpike. Timothy's widow and B.O.'s mother, Pamela O'Donnell (O'Donnell), sought to hold the New Jersey Turnpike Authority (NJTA) liable for the wrongful death of her husband and daughter pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. O'Donnell's attorney prepared a notice of tort claim describing the fatal accident and naming the NJTA as the responsible entity. Within ninety days of the accident, O'Donnell's attorney served her notice of claim on the State, rather than the NJTA. However, another driver involved in the accident properly served the NJTA within the ninety-day window. This notice of claim served upon the NJTA cited the exact circumstances surrounding the collisions, named the involved parties, and alleged the same theory of liability against the NJTA. After the ninety-day window ...


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