In the case of a Jersey City teacher killed along with his 5-year-old daughter in a car accident at a New Jersey Turnpike toll plaza, the state Supreme Court has taken up the issue of whether a lawyer's service of process error amounts to extraordinary circumstances sufficient to skirt dismissal because of a late tort claims notice.

In a May 21 order, the court granted a petition for certification in O'Donnell v. New Jersey Turnpike Authority, presenting the question: “Was the failure of plaintiffs' first attorney to serve a timely tort claim notice against defendant an extraordinary circumstance justifying plaintiffs' late tort claim notice under N.J.S.A. 59:8-9?”

Courts below have answered that question differently. A two-judge Appellate Division panel in January, reversing a decision below, ruled that the attorney who originally represented the family fell short of the Tort Claims Act's requirements in filing a notice with the state rather than the turnpike authority itself.

The statute requires that plaintiffs suing public agencies give notice within 90 days that they may be the subject of a negligence lawsuit, but allows a way around the 90-day time bar if “extraordinary circumstances” led to the tardiness.

According to the January decision, Timothy O'Donnell and his daughter, Bridget, were killed on Feb. 22, 2016, at the westbound 14C tolls in Jersey City when their vehicle was rear-ended by a car driven by defendant Scott Hahn and propelled through the toll plaza. O'Donnell's sedan was then thrust into the eastbound lanes of traffic, where it was struck by a CarePoint Health van, the court said.

The original attorney for Pamela O'Donnell—Timothy O'Donnell's wife and Bridget's mother—filed a timely tort claims notice with the state Office of Risk Management on May 16, 2016. The court didn't name the original attorney.

The lawsuit alleged that the authority failed to properly maintain its facilities, leading to the accident.

Pamela O'Donnell retained new counsel, Jacqueline DeCarlo of Middletown's Hobbie Corrigan & Bertucio, who filed a tort claims notice with the turnpike authority on Sept. 6, 2016, 197 days after the accident.

The authority moved to dismiss the case, but a Middlesex County Superior Court judge, citing extraordinary circumstances, denied the motion. The turnpike authority appealed.

The Appellate Division, in reversing, said, “There was no obligation on the state to forward the wrongly filed tort claims notice to defendant.” Judges Clarkson Fisher Jr. and Thomas Sumners Jr. reasoned that the turnpike authority is a quasi-independent agency that is technically not part of the state government.

“And there were no obstacles preventing the first attorney from identifying defendant as the proper entity to be served a tort claim notice for negligent safety and maintenance of the Turnpike,” the panel said in the per curiam decision. ”We also discern no merit to plaintiff's extraordinary circumstance argument that the attorney's mistake was because he primarily practiced outside this state.”

The panel relied on the New Jersey Supreme Court's 3-2 decision from 2013 in D.D. v. Univ. of Med. and Dentistry of New Jersey.

Norman Hobbie, one of the lawyers at the plaintiffs' firm who is handling the case, declined to comment on the court's granting of certification. The attorney for the turnpike authority, Christopher Palladino of West Orange's Chiesa, Shahinian & Giantomasi, was unavailable for comment.