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Late Filing Ok’d

Posted by Unknown | Feb 07, 2019 | 0 Comments

Public entities in New Jersey are immune from tort liability.  However, the Tort Claims Act provides injured people with a way to recover for the negligent acts of public entities.  However, the Act imposes strict requirements upon litigants seeking to sue public entities to limit a public entity's exposure.  The Act requires them to file a notice of a claim with the public entity within ninety (90) days of the alleged negligence.  Then, a litigant may not file suit until six (6) months after the notice of claim is received by the public entity.

The Act does allow judges to use their discretion to permit people to file notices outside this 90-day requirement.  Specifically, a judge may allow a late filing within a year of the claim if the public entity will not be substantially prejudiced and there are extraordinary circumstances for excusing the litigant's failure to comply with the ninety-day notice requirement. 

Recently, in O'Donnell v. New Jersey Turnpike Authority the Court examined the scope of this exception to the 90-day requirement and agreed to allow a late filing.  In O'Donnell, a surviving spouse and mother of an automobile accident victim brought an action against the New Jersey Turnpike Authority to recover for the wrongful death in a head on collision with an ambulance that crossed into the opposite lane of traffic.  The spouse's first attorney properly prepared a notice but improperly served it on the State rather than Turnpike Authority.  Another driver involved in the accident, however, did prepare and serve the Authority with a notice that cited the exact circumstances surrounding the collision, named the parties involved, and alleged the same theories of liability as the surviving spouse had alleged.  After the initial ninety-day window closed but within one year of the accident, the surviving spouse, through new counsel, served an amended notice of the claim on the Turnpike Authority and two days thereafter brought suit against the Turnpike Authority. 

The Court held that extraordinary circumstances existed.  It reasoned that although an attorney's error alone is not sufficient alone to meet the extraordinary circumstances standard, here, the surviving spouse submitted proofs demonstrating extraordinary circumstances beyond her attorney's error.  The Court noted that following the accident she quickly pursued her claims against the Turnpike Authority in good faith and identified the correct responsible party along with its address in a properly prepared notice of claim that was improperly served upon the wrong public entity.  The Court reasoned that the Turnpike Authority would not be prejudiced by the late filing because it received a proper and nearly identical notice from the other driver involved, which notified it of the pertinent details of the collision, alleged identical theories of liability, and, importantly, attached a police report that named the victims.  The Court stated that such a notice provided the Turnpike Authority with the opportunity to investigate potential claims and prepare a defense. 

If you believe you have been injured as a result of the negligence of a public entity or its employees, it is critical you speak to a lawyer as soon as you can.  While the Court in O'Donnell did allow an exception to the procedural requirements of the Tort Claims Act, you never want to rely on the grant of an exception if you have been injured.  The attorneys at Lavery, Selvaggi, Abromitis, & Cohen, P.C. are experienced in matters involving the Tort Claims Act and will be able to protect you if you are injured by the actions of a public entity or its employees.   

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