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December 15, 2014


Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0649-13.

David R. Castellani argued the cause for appellant.

Gerald J. Helfrich argued the cause for respondent.


Plaintiff Joan E. Walker appeals from the April 12, 2013 Law Division order, which denied her motion for leave to file a late notice of tort claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiff also appeals from the August 9, 2013 order, which denied her motion for reconsideration. Because we conclude that the totality of the circumstances established substantial compliance with the TCA notice requirements, we reverse.


The following facts are undisputed. Plaintiff was a tenant at Jeffries Towers, an apartment complex owned and operated by defendant Housing Authority of the City of Atlantic City (the ACHA). On October 22, 2012, plaintiff slipped and fell on water in the laundry room, which apparently leaked from the washing machines, and sustained injuries to her back and neck. She immediately notified security staff at Jeffries Towers of the incident and the cause, and she and a security guard signed a Security Department incident report.

Plaintiff was transported from Jeffries Towers to the hospital, where she was diagnosed with a thoracic compression fracture. She was admitted to the hospital for treatment and then discharged and transferred to a rehabilitation facility, where she remained until November 19, 2012. On October 24, 2012, before her discharge from the hospital, plaintiff and an ACHA representative signed an ACHA incident/accident analysis report, which contained plaintiff's name, address, telephone number, and the date, location, description, and cause of the incident. The report also confirmed that the ACHA received notice of the incident on October 23, 2012, photographs were taken, the ACHA notified the washing machine supplier of the incident, and the ACHA took corrective action to monitor the laundry room on a daily basis.

In December 2012, plaintiff spoke to an ACHA representative and requested information about any claim the ACHA submitted on her behalf for her injuries. The representative gave plaintiff documents confirming that the ACHA had filed a claim with its insurance company, and assured her she need not do anything further.

On January 20, 2013, plaintiff received a copy of a January 15, 2013 letter from the ACHA's insurance adjuster to the washing machine supplier notifying the supplier of plaintiff's accident and the cause. The letter included plaintiff's name, address, telephone number, and copies of the two incident reports, and advised that plaintiff was treated at the hospital and a rehabilitation facility and diagnosed with a thoracic compression fracture. The letter demanded coverage from the supplier's insurance company for plaintiff's claim pursuant to a contractual provision requiring the supplier to name the ACHA as an additional insured on the supplier's insurance policy.

On January 30, 2013, plaintiff met with an attorney about contacting the ACHA's insurance company regarding her claim. On February 6, 2013, the attorney filed a motion for leave to file a late notice of tort claim. As she does on appeal, plaintiff invoked the doctrine of substantial compliance for relief from the ninety-day filing requirement of N.J.S.A. 59:8-8, arguing the totality of the circumstances established she had provided nearly all of the information required by the TCA notice requirements, and the ACHA investigated the claim within the ninety-day period. Plaintiff also argued the ACHA was equitably estoppel from challenging her motion based on the representations made to her by the ACHA's representative that a claim was filed on her behalf and she need not do anything further.1

In opposition, the ACHA did not assert it would be substantially prejudiced by the filing of a notice of tort claim beyond the ninety-day limit. It merely argued that D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130 (2013) required strict compliance with the TCA requirement that a formal written notice of claim be filed within ninety days of the accrual of the cause of action.

In denying plaintiff's motion, the motion judge strictly interpreted D.D. as barring application of the doctrine of substantial compliance where a claimant, such as plaintiff, did not actually file a formal written notice of tort claim with the ACHA. The judge also found that equitable estoppel did not apply. The judge subsequently denied plaintiff's motion for reconsideration, finding that the incident reports did not satisfy all of the requirements of N.J.S.A. 59:8-4, and they were not filed either with the Attorney General or the ACHA, as required by N.J.S.A. 59:8-7.2 This appeal followed.


The decision to grant permission to file a late notice of claim is left "'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (alteration in original) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). However, decisions denying permission to file a late claim are "examine[d] more carefully . . . to the end that whenever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of [permitting] the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (internal quotation marks omitted). In determining whether to deny permission to file a late notice of claim, the court must consider all of the circumstances in combination. Ibid. "Although deference will ordinarily be given to the factual findings that undergird the trial court's decision, the court's conclusions will be overturned if they were reached under a misconception of the law." D.D., supra, 213 N.J. at 147. We conclude that the judge in this case mistakenly exercised his discretion and misconstrued the facts and the law to deny plaintiff's motion.

A claimant must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. The purposes of the notice are as follows

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.

[Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)) (internal quotation marks omitted)].

"It is well settled that the [TCA] demands, at a minimum, the filing of a written notice." D.D., supra, 213 N.J. at 159 (citing N.J.S.A. 59:8-5). The written notice shall include the following information

a. The name and post office address of the claimant;

b. The post-office address to which the person presenting the claim desires notices to be sent;

c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

[N.J.S.A. 59:8-4.]

In keeping with the notice goals, "N.J.S.A. 59:8-4 is 'designed to provide the public entity with sufficient information to enable it promptly to evaluate its liability and potential exposure and, if it chooses, to correct a defective condition and also engage in settlement negotiations prior to the commencement of suit.'" Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009) (quoting Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004)). The notice need not be on the public entity's claim form so long as the claimant provides the information required by N.J.S.A. 59:8-4. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 675 (App. Div. 1999). The notice must also be "signed by the claimant or by some person on his behalf," N.J.S.A. 59:8-5, and "filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission." N.J.S.A. 59:8-7.

A person is forever barred from bringing an action against a public entity or public employee unless he or she complies with the TCA notice requirements. N.J.S.A. 59:8-8(a). However, the harshness of the ninety-day requirement is alleviated by the statutory provision authorizing a Superior Court judge to permit the filing of a notice of claim beyond the ninety-day limit of N.J.S.A. 59:8-8 for a period of up to one year after the accrual of the claim, provided the public entity or public employee has not been substantially prejudiced thereby and the complainant shows sufficient reasons constituting extraordinary circumstances for the failure to timely file a notice of claim. N.J.S.A. 59:8-9.

The doctrine of substantial compliance is an alternative to the extraordinary circumstances requirement and can serve to relieve a claimant of the TCA notice requirements. D.D., supra, 213 N.J. at 159. It is an equitable doctrine "utilized 'to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose.'" Cnty. of Hudson v. State, Dept. of Corrs., 208 N.J. 1, 21 (2011) (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 352 (2001)). "Thus, the doctrine operates 'to prevent barring legitimate claims due to technical defects.'" Id. at 21-22 (quoting Lebron, supra, 407 N.J. Super. at 215). "In general, it rests on a demonstration that a party took 'a series of steps . . . to comply with the statute involved,' and those steps achieved the statute's purpose, as for example, providing notice." Id. at 22 (quoting Galik, supra, 167 N.J. at 353-54) "Even so, the doctrine can only apply if there is no prejudice to the other party and if there is a reasonable explanation why there was not strict compliance with the statute." Ibid. (citations and internal quotation marks omitted).

The doctrine of substantial compliance cannot apply where the notice was oral. D.D., supra, 213 N.J. at 159-160. However, the doctrine may apply where the notice was written and given in a way, which though technically defective, substantially satisfies the purposes for which notices of claim are required. LeBron, supra, 407 N.J. Super. at 214-15. For example, substantial compliance was found where the deficient written notice identified the plaintiff and her attorney, set forth the date and general description of the incident, listed the injuries, and demanded damages, but did not specifically assert a legal theory. Id. at 215-16, 220. Substantial compliance was also found where a claim for damages was sent to the public entity's insurer and the public entity investigated the incident. Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 225-26 (App. Div. 1989). What is important is that the technical deficiencies in the written notice did not deprive the public entity of the effective notice contemplated by the TCA. D.D., supra, 213 N.J. at 159.

Here, the ACHA received written notice of plaintiff's claim for personal injuries on the ACHA's own incident/accident analysis form. The notice was signed by plaintiff and a representative of the ACHA and timely filed with the ACHA. Although the notice had some deficiencies, it contained enough information to notify the ACHA of its potential liability for plaintiff's injuries and afford the ACHA the opportunity to promptly review, settle, and adequately investigate the claim and correct the conditions that gave rise to the claim. In fact, the ACHA evidently had enough information to enable its insurance adjuster to demand coverage from the supplier of the washing machines. We do not suggest that an incident or police report generally would satisfy the TCA's notice requirements. Rather, we conclude that under the specific facts of this case, the ACHA's incident/accident analysis form gave the ACHA effective and timely notice of plaintiff's claim as contemplated by the TCA's notice requirements.


1 Plaintiff also argued she showed sufficient reasons constituting extraordinary circumstances for her failure to timely file a notice of claim. Plaintiff did not address this issue in her merits brief. Thus, the issue is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).

2 N.J.S.A. 59:8-7 provides as follows

A claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission. A claim for injury or damages arising under this act against a local public entity shall be filed with that entity.