New Jersey Supreme Court Justice Barry Albin

Our Tort Claims Act provides a very short window for notifying a state entity of a possible cause of action against it. NJSA 59:8-8 requires such notice within 90 days, and NJSA 59:8-9 specifies a period of up to one year to serve a late notice if plaintiff's counsel can show “extraordinary circumstances.” This is a very broad, intentional, legislative delegation of judicial authority to evaluate reasons for missing the short time period that the state has provided, for its own benefit.

Our Supreme Court just heard argument on a case where the notice of claim for a terrible accident, causing the death of a teacher and his young daughter, was timely served but on the wrong state entity (the Office of Risk Management). After plaintiffs changed lawyers, a notice was served on the proper state entity (the Turnpike Authority) but almost 200 days after the statutory 90-day period expired. When the complaint was filed, the defendant moved to dismiss but the trial judge ruled that “exceptional circumstances” justified late filing of the notice. The Appellate Division reversed, finding no exceptional circumstances, and that the first entity served had no duty to forward the notice to the Turnpike Authority, which is a “quasi-independent agency” and not technically part of the state.

The Tort Claims Act is a very complicated statute, interpreted in many decisions. The short notice requirement makes it even more difficult for plaintiffs to assert claims against the state and its entities. The Turnpike Authority was certainly on notice that it might be sued for the accident because another victim of the same accident had timely filed, it had the police report, and there was widespread media coverage. One would think the Office of Risk Management would have forwarded to, or at least notified, the Turnpike Authority of the notice. Here, the Turnpike Authority wants protection of the Tort Claims Act, but seeks to rely on the notice of claim technicality, where it had actual notice that it was likely to be sued, partly on the grounds that it is a “quasi-independent agency.” We agree with Justice Barry Albin's question at oral argument: “How was it harmed?” This whole scenario strikes us a sort of “gotcha” by our state against our citizens. The broad statutory delegation to judges to determine “exceptional circumstances” represents a clear legislative understanding there could be a variety of fact situations that justify relaxing the notice period. Here we have actual notice, a state agency that could have forwarded the timely, but misdirected, notice and many other equitable circumstances. We believe there is ample justification for the Supreme Court to reverse the Appellate Division, and not leave these unfortunate survivors to a legal malpractice action against their first lawyer. If this turns out not to be a case for exercising judicial discretion, we call on the Legislature to revisit the provisions of NJSA 59:8-9 to include such cases.