NJ Turnpike
The New Jersey Supreme Court has granted relief from a Tort Claims Act filing deadline under a finding of "extraordinary circumstances" where a plaintiff made timely notice within 90 days of a fatal car crash, but served the notice to the wrong public entity.
The justices reversed an Appellate Division ruling finding that no extraordinary circumstances were present. The court found that the extraordinary circumstances standard was met because timely notice concerning the same crash was made to the proper entity by a separate claimant, and because the plaintiff employed the Tort Claims Act's procedure for obtaining judicial approval of an untimely notice within a year of the accident.
The case stems from a February 2016 crash near Interchange 14C on the New Jersey Turnpike that killed Timothy O'Donnell and his 5-year-old daughter. The crash took place after his vehicle was rear-ended by another vehicle traveling erratically at a high rate of speed, propelling him into oncoming traffic.
On May 17, 2016, within 90 days of the accident, a lawyer for Pamela O'Donnell, Timothy's widow and mother of his child, served a notice of claim on the state Bureau of Risk Management, but did not serve notice of claim on the New Jersey Turnpike Authority, as is required under the TCA.
The notice served by O'Donnell said her husband's vehicle would not have been knocked into oncoming traffic if the Turnpike Authority had installed safety barriers to separate opposing lanes of traffic. She then retained new counsel, who served an amended notice of claim on the Turnpike Authority 197 days after the crash. Two days later, O'Donnell filed suit individually, on behalf of the estates of her husband and deceased daughter, and as the guardian of another daughter who was not involved in the accident.
The Turnpike Authority moved to dismiss the complaint, contending that O'Donnell failed to serve the notice of claim within 90 days of the accident, as required under the TCA. O'Donnell opposed the Turnpike Authority's motion and filed a cross-motion for leave to file a late notice of claim.
A trial court judge denied the Turnpike Authority's motion to dismiss and granted O'Donnell's cross-motion. The trial court found that service on the state did not constitute service on the Turnpike Authority. But the trial court found that O'Donnell demonstrated extraordinary circumstances, which allowed her to file a late claim. The judge deemed the state's failure to forward the notice of tort claim to the proper agency and its failure to notify O'Donnell that the notice was served on the wrong entity were extraordinary. The judge also said it would be wrong to penalize O'Donnell for her attorney's negligence.
On appeal, the Turnpike Authority cited a 2013 Supreme Court decision finding that an attorney's inattention or even malpractice does not constitute an extraordinary circumstance sufficient to excuse noncompliance with the filing deadline under the Tort Claims Act.
The Appellate Division agreed and reversed, citing the 2013 case to support its holding that the trial court mistakenly exercised its discretion in finding extraordinary circumstances.
The Supreme Court granted O'Donnell's petition for certification and her motion to expand the record to include a notice of claim that was timely served on the Turnpike Authority by a lawyer for Eliasar Morales, an ambulance driver who was injured when his vehicle was struck head-on by Timothy O'Donnell's car. Morales' notice of claim included the allegation that the Turnpike Authority was negligent for failing to install roadway safety barriers at the toll plaza where the crash took place. Morales' notice also included a copy of the accident report, which referenced Timothy O'Donnell and his daughter and indicated they had died in the crash.
Justice Lee Solomon wrote that viewing the notices of O'Donnell and Morales, along with all the circumstances surrounding the accident, showed that the Turnpike Authority was notified of its potential liability within 90 days of the accident.
"Armed with information from Morales' notice, the Turnpike Authority could investigate potential claims arising from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect. Therefore, when O'Donnell finally served her amended notice of claim on the Turnpike Authority, it was already aware of its potential liability arising from the accident and was not prejudiced by the untimely filing." Solomon wrote for the court.
The court found the circumstances of the present case are extraordinary in light of the facts, namely that O'Donnell pursued her claim on a timely basis, but her lawyer improperly served the state; that Morales served a timely notice of claim listing the exact same circumstances and the same theory of liability against the Turnpike Authority; and because O'Donnell pursued the statutory remedy for a late notice of claim within one year of the accident.
The court joined in Solomon's opinion by a 6-0 margin. Justice Walter Timpone did not participate.
Justin Lee Klein of Hobbie, Corrigan & Bertucio in Eatontown argued for O'Donnell at the Supreme Court. He declined to comment.
Neither the Turnpike Authority nor its lawyer, Christopher Paldino of Chiesa Shahinian & Giantomasi in West Orange, responded to a request for comment.