On Jan. 23, 2018, a two-judge panel of the Appellate Division issued an unpublished opinion in Pamela O'Donnell, et al. v. New Jersey Turnpike Authority, et al. (Docket No. A-1431-16T1). The case involved a motor vehicle accident on the New Jersey Turnpike which resulted in the death of a man and his five-year-old daughter. Original counsel for plaintiffs served a tort claim notice under N.J.S.A. 59:8-8 on the State of New Jersey, alleging the deaths had resulted from the negligence of the Turnpike Authority. About six and one-half months later, new counsel for plaintiffs served an amended tort claim notice directly on the Turnpike Authority. Almost a week later, plaintiffs filed suit against the authority and others. The authority filed a Rule 4:6-1 motion to dismiss the complaint on the ground that it was barred due to plaintiffs' failure to serve the initial notice within 90 days of the accident as required under N.J.S.A. 59:8-8. A supporting certification acknowledged receipt of the amended tort claim notice but indicated that the authority had not received plaintiffs' initial notice. It was also urged in the motion that the authority is not an entity of the State of New Jersey, because it is independently authorized to sue or be sued. Thus, it argued that the initial tort claim notice had to have been served on the authority and not the state.

Plaintiff argued before the trial court that under N.J.S.A. 59:8-9, a court may permit a tort claim notice to be filed out of time within one year after the accrual of the claim provided that the entity had not been substantially prejudiced. A motion seeking such relief is required to be supported by affidavits showing sufficient reasons “… constituting extraordinary circumstances for … failure to file … within the period of time prescribed [in the statute].” The trial court denied the defendant's motion and granted the plaintiffs' cross-motion, finding that although the plaintiff had failed to timely serve the tort claim notice on the authority, and service on the state was not service upon the authority, nonetheless the negligence or inadvertence of the first attorney should not be visited upon the second attorney who had corrected the mistake of predecessor counsel. The court also found that late notice had been corrected immediately upon discovery and that such situation was within the contemplation of the Legislature when it allowed a court to permit filing out of time.

The Appellate Division reversed the trial court on the basis of the Supreme Court of New Jersey's opinion in D.D. v. Univ. of Med. and Dentistry of New Jersey, 213 N.J. 130 (2013). There, the court noted that the Legislature had permitted relief from untimely filing only in extraordinary circumstances. The court (acting by a three-justice majority) found no such circumstances in the D.D. case. It concluded, however, that plaintiff was not without a remedy since he could sue the attorney for malpractice. Two justices dissented, urging that the trial judge had properly exercised discretion in finding that extraordinary circumstances existed to permit late notice.

Relying on D.D., the Appellate Division in O'Donnell held that “the record is clear that defendant did nothing to impede timely service of the initial tort claim notice, which it never received.” The court further held that there were “no obstacles preventing the first attorney from identifying defendant as the proper entity to be served a tort claim notice…” Finally, the court said, “we also discern no merit to plaintiffs' extraordinary circumstance argument that the attorney's mistake was because he primarily practiced outside the state.”

Significantly, nothing in the opinion suggests that the authority was prejudiced by the initial failure to comply with the tort claim notice statute. We are struck by the fact that the state did receive a notice of this unfortunate accident, and there appears no reason why the state could not have forwarded the notice to the authority (or communicated with plaintiffs' counsel), it being obvious that the authority was the alleged culpable defendant.

We submit that it could reasonably have been found that the original attorney substantially complied with the requirements of the tort claim notice. As far back as 1970, the Supreme Court of New Jersey, in the case of Zamel v. Port of New York Authority, 56 N.J. 1 (1970), found that there is nothing in statutory history or terminology of the tort claims notice requirement “… to indicate that our Legislature ever meant to exclude the highly just doctrine of substantial compliance which is so well designed to avoid technical defeats of valid claims.”  Further, the Zamel case (which was unanimous) found that “… the Port Authority was not prejudiced by the failure of the plaintiffs to comply strictly with the notice of claim requirement… .”  The same is true here.

The result in O'Donnell is a harsh one, but the Appellate Division believed that it was required by D.D., and the D.D. majority apparently believed that such results were intended by the Legislature when it amended the Tort Claims Act to require “extraordinary circumstances” in order to depart from the act's strict notice requirement. However, D.D. was a 3-2 decision, by less than a full court, and one of the justices in the majority no longer sits. We believe that the court should take the opportunity to revist D.D. by granting certification if requested, address anew the meaning of “extraordinary circumstances” as used in the Tort Claims Act, and decide that the trial judge properly exercised judicial discretion in permitting the service of a tort claims notice out-of-time.