RUTHH ALLETT v. LEITA HAMILL
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2592-16T1
RUTH HALLETT,
Plaintiff-Respondent,
v.
LEITA HAMILL, COUNTY OF
MERCER, and STATE OF NEW
JERSEY,
Defendants,
and
TOWNSHIP OF EWING,
Defendant-Appellant.
___________________________
Submitted February 14, 2018 – Decided March 15, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2074-16.
Capehart & Scatchard, PA, attorneys for
appellant (Charles F. Holmgren, of counsel and
on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant Township of Ewing appeals from a January 20, 2017
order granting plaintiff Ruth Hallett leave to file a late notice
of claim under the New Jersey Tort Claims Act,
N.J.S.A. 59:1-1 to
12-3. We agree with defendant that the trial judge mistakenly
exercised her discretion because the record does not support a
finding of the "extraordinary circumstances" required for late
filing by
N.J.S.A. 59:8-9. Accordingly, we reverse.
The limited record in this matter reflects that on February
16, 2016, plaintiff allegedly slipped and fell on ice in front of
a house located in Ewing Township. Plaintiff claims she slipped
and fell due to the failure to warn of the allegedly dangerous
condition. Plaintiff suffered a fractured femur and was
purportedly hospitalized from the time of the accident until she
passed away on July 23, 2016. Her injuries allegedly contributed
to her death.
Plaintiff did not seek legal representation immediately after
the incident and did not file a timely notice of her tort claim
with any of the public entity defendants. The ninety-day period
to provide notice of plaintiff's tort claim expired on May 16,
2016.
On August 8, 2016, plaintiff's daughter retained counsel to
handle her mother's personal injury claim. On September 15, 2016,
plaintiff filed a motion for leave to file a late tort claim notice
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on defendants Mercer County, City of Trenton, and State of New
Jersey. Although the motion was served on the other public entity
defendants, it was not served on defendant Ewing Township.
Plaintiff's motion was supported by a certification of
counsel. The certification did not state how long plaintiff was
hospitalized, whether a doctor prescribed medication that would
have affected her ability to concentrate, or whether she suffered
any head injuries, mental impairment, or injuries other than a
fractured leg. Nor did the certification indicate that plaintiff
had difficulty determining the individual or entity which owned,
controlled, or operated the premises where plaintiff fell.
On October 14, 2016, plaintiff filed a complaint naming Leita
Hamill, Ewing Township, Mercer County, and the State of New Jersey
as defendants. Shortly thereafter, Ewing Township filed a motion
to dismiss plaintiff's complaint for failure to file a timely
notice of her tort claim. On or about November 9, 2016, plaintiff
filed a cross-motion for leave to file a late tort claim notice
on Ewing Township, Mercer County, and the State of New Jersey.
Plaintiff's cross-motion was supported by an identical
certification of counsel which contained no additional information
regarding plaintiff's injuries or disabilities. During oral
argument, counsel argued plaintiff was incapacitated as a
justification for the late notice. That argument was not based
3 A-2592-16T1
on personal knowledge and was not supported by an expert report
or objective medical documentation.
The trial court heard oral argument on January 20, 2017.
Plaintiff's counsel indicated discovery was being conducted to
determine the specific location of the accident and whether it
occurred on private or public property. Plaintiff's counsel stated
he had obtained plaintiff's hospital records after the motion was
filed. He further argued plaintiff fractured her femur, was
hospitalized for five months from the time of the accident until
her death, and was of advanced age. He noted the ninety-day notice
period expired "while she was still in the hospital fighting for
her life."
Following oral argument, the trial court issued an oral
decision granting plaintiff's cross-motion for leave to serve late
notice on Ewing Township but dismissed the complaint without
prejudice as to Mercer County and the State. In reaching that
conclusion, the judge indicated that such motions are generally
viewed with great liberality, with any doubt as to the sufficiency
of the reasons to excuse the late filing being resolved in favor
of the claimant, so that whenever possible, cases may be heard on
their merits.
On appeal, defendant argues: (1) the trial court erred by
viewing plaintiff's application with "great liberality" and by
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applying the former "sufficient reasons" standard rather than the
current "sufficient reasons constituting extraordinary
circumstances" standard required by
N.J.S.A. 59:8-9; and (2) the
trial court abused its discretion in determining plaintiff's
proofs met the extraordinary circumstances standard required by
the statute.
Plaintiff filed her motion on November 9, 2016. Her cause
of action against defendants accrued on February 16, 2016. The
motion was therefore filed almost six months beyond the ninety-
day period for filing claim notices prescribed by
N.J.S.A. 59:8-
8.1 Plaintiff sought to avail herself of the late claim provision
of
N.J.S.A. 59:8-9, which authorizes courts to permit a claim
notice to be filed within one year of accrual of the cause of
action if the public entity or employee will not be substantially
prejudiced. That section also requires that a motion to allow
late filing must be
supported by affidavits based upon personal
knowledge of the affiant showing sufficient
reasons constituting extraordinary
circumstances for his failure to file notice
of claim within the period of time prescribed
by section 59:8-8 of this act or to file a
1
The filing of the complaint on October 14, 2016, does not serve
as the filing of notice required by
N.J.S.A. 59:8-8. Guzman v.
Perth Amboy,
214 N.J. Super. 167, 171-72 (App. Div. 1986); Martin
v. Twp. of Rochelle Park,
144 N.J. Super. 216, 221 (App. Div.
1976).
5 A-2592-16T1
motion seeking leave to file a late notice of
claim within a reasonable time thereafter[.]
[
N.J.S.A. 59:8-9 (emphasis added).]
The quoted portion of
N.J.S.A. 59:8-9 results from a 1994
amendment, L. 1994, c. 49, § 5, to the original version of that
section, enacted in 1972, which had required that a motion to
allow late filing be "based upon affidavits showing sufficient
reasons for his failure to file notice of claim within the period
of time prescribed by section 59:8-8 of this act[,]" New Jersey
Tort Claims Act, L. 1972, c. 45, § 59:8-9 (codified as amended at
N.J.S.A. 59:8-9) (emphasis added).
The amendment made two significant changes. It replaced the
general "sufficient reasons" standard with a more demanding
"extraordinary circumstances" standard. It also required
applicants to demonstrate extraordinary circumstances, not only
for why they could not serve the notice of claim within ninety
days, but also for why they could not have filed the late claim
notice motion sooner after the running of the ninety-day period.
The grant or denial of a motion for leave to file a late
notice of claim is "left to the sound discretion of the trial
court, and will be sustained on appeal in the absence of a showing
of an abuse thereof." McDade v. Siazon,
208 N.J. 463, 476-77
(2011) (quoting Lamb v. Global Landfill Reclaiming,
111 N.J. 134,
6 A-2592-16T1
146 (1988)). The exercise of discretion, however, is limited to
cases in which the claimant's affidavit or certification
demonstrates extraordinary circumstances for the delay. Leidy v.
Cty. of Ocean,
398 N.J. Super. 449, 456 (App. Div. 2008) (citing
R.L. v. State-Operated Sch. Dist.,
387 N.J. Super. 331, 340 (App.
Div. 2006)). Judicial findings about the presence of extraordinary
circumstances must be expressly made. Ibid. (citing Allen v.
Krause,
306 N.J. Super. 448, 455-56 (App. Div. 1997)).
In Leidy, we explained the significance of the 1994 amendment:
The "extraordinary circumstances" requirement
was not part of the original Act, and mere
"sufficient reasons" sufficed to warrant
relief from the statutory time bar. The
"extraordinary circumstances" language was
added by amendment in 1994 . . . to raise the
bar for the filing of late notice from a fairly
permissive standard to a more demanding one.
[T]he amendment may have signaled the end to
a rule of liberality in filing. Notably, the
1994 amendment does not define what
circumstances are to be considered
"extraordinary" and necessarily leaves it for
a case-by-case determination as to whether the
reasons given rise to the level of
"extraordinary" on the facts presented.
[Ibid. (alteration in original) (citations
omitted).]
Indeed, "the evident legislative purpose of this amendment
was the abrogation of the liberal judicial construction of
'sufficient reasons' standing alone." Blank v. City of Elizabeth,
318 N.J. Super. 106, 110 (App. Div.), aff'd as modified, 162 N.J.
7 A-2592-16T1
150 (1999). It signaled a clear legislative mandate for a
"stricter interpretation of the amended act." Zois v. N.J. Sports
& Exposition Auth.,
286 N.J. Super. 670, 674 (App. Div. 1996).
The judge in this case relied on case law decided before the
1994 amendment when the original, liberal version of the statute
was in effect. The standard was significantly elevated after
those cases were decided.
Our case law recognizes that "medical conditions meet the
extraordinary circumstances standard if they are severe or
debilitating[,]" impacting "the claimant's very ability to pursue
redress and attend to the filing of a claim." D.D. v. Univ. of
Med. & Dentistry of N.J.,
213 N.J. 130, 149-50 (2013). We have
previously addressed whether "severe or debilitating" medical
conditions have met the extraordinary circumstances standard.
See, e.g., Mendez v. So. Jersey Transp. Auth.,
416 N.J. Super.
525, 533-36 (App. Div. 2010) (satisfying the test where the
plaintiffs were unconscious at the accident scene, suffered from
severe head trauma requiring ambulance transport to a nearby trauma
center, spent considerable time in hospitals and rehabilitation
facilities, and had no recollection of events occurring
immediately before or after the accident); Maher v. Cty. of Mercer,
384 N.J. Super. 182, 189-90 (App. Div. 2006) (constituting
sufficient extraordinary circumstances where a severe staph
8 A-2592-16T1
infection was treated with an induced coma with little chance of
survival). These cases illustrate the magnitude of what is meant
by "severe or debilitating."
Here, counsel's certification falls short of making the kind
of detailed showing, based on personal knowledge, required by our
case law to establish extraordinary circumstances. See, e.g.,
O'Neill v. City of Newark,
304 N.J. Super. 543, 546-54 (App. Div.
1997) (disallowing the late claim by a seriously injured claimant
who suffered a gunshot wound and underwent surgery in the months
following his injury and who produced a psychologist's report;
finding that report insufficient to establish that the claimant
lacked the "mental capacity" to contact an attorney within ninety
days); Keller v. Cty. of Somerset,
137 N.J. Super. 1, 7 n.4 (App.
Div. 1975) (rejecting a generalized claim of debilitating
emotional strain without detailing its scope and duration and
uncorroborated by medical testimony causally relating it to the
delay in filing).
Plaintiff did not provide an expert report or objective
medical documentation establishing the nature and extent of her
injuries or disability. Other than indicating she suffered a
fractured femur, plaintiff provided no information regarding any
other injuries she suffered. Notably, plaintiff did not claim to
have suffered any head injuries or cognitive impairment. The
9 A-2592-16T1
unsupported claim by counsel that she was "fighting for her life"
while hospitalized is nothing more than a vague, conclusory, self-
serving declaration, which was not based on personal knowledge.
If plaintiff's showing was deemed sufficient to establish
extraordinary circumstances, the post-amendment version of
N.J.S.A. 59:8-9, intended by the Legislature to raise the bar,
would instead constitute a virtually meaningless standard.
"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.,
213 N.J. at 147 (citing McDade,
208 N.J. at 473-74). This is such a case. We are satisfied that
the judge mistakenly exercised her discretion by employing the
former statutory standard.
For the reasons we have stated, application of the controlling
legal principles to the facts of this case precludes leave to file
a late claim notice. Accordingly, the trial court should have
granted defendant's motion to dismiss the complaint and denied
plaintiff's cross-motion for leave to file a late claim notice.
Reversed.
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