Court Finds Plaintiffs Presented Extraordinary Circumstances Sufficient to Permit Filing of a Late Notice of Tort Claim

This matter arose from a tragic fire that occurred on April 8, 2021, at the three-story single-family residence owned by the defendant Newark Housing Authority and occupied by plaintiff Kadisha Jones Richardson and her five children.  Plaintiff Tyron Hartfield, the biological father of four of the five children, was also present at the time of the fire.  During the fire, plaintiffs’ seven-year-old son, Saahir, passed away.  Further family tragedies happened after the fire.  The issue in Richardson v. Newark Housing Authority, 2023 N.J. Super. Unpub. LEXIS 1119 (App. Div. July 5, 2023) was whether the trial court properly granted the plaintiffs’ motion for leave to file a late notice of tort claim to permit plaintiff to sue the Newark Housing Authority for losses suffered from the fire.  No tort claim notice had been filed in the required ninety (90) day time period following the loss.

In addition to the trauma of suffering the death of their son, Hartfield suffered a broken ankle in his attempt to rescue his son and the entirety of the family’s possessions were destroyed.  Plaintiffs and their family were forced to move in with Richardson’s mother.  During this time, Richardson was also caring for her mother, whose physical health was declining.  Less than three months after the fire, Richardson’s mother suffered a stroke and was hospitalized and ultimately passed away.  Further, Richardson was injured in a serious car accident.

In their motion for leave to file a late notice of tort claim, plaintiffs certified that in the months following the fire, they suffered from depression and anxiety from the loss of their son and their stress was further compounded by attending to the mental well being of their other children who had lost their brother and then Richardson’s mother.  Although plaintiffs received a death certificate on April 16, 2021, they still did not have the official cause of death or cause of the fire until November 2021.  On October 29, 2021, the plaintiffs had consulted a law firm for the first time.  However, on December 2, 2021, that law firm declined representation.

Plaintiffs retained their current counsel in March 2022.  Once counsel was retained, counsel promptly filed a motion for leave to file a late notice of tort claim on April 6, 2022, just two days shy of the one-year anniversary of the fire.  The trial court found that though plaintiffs did not file within the notice of tort claim within the required ninety (90) days of the accrual date, they did demonstrate extraordinary circumstances which permitted a late filing.  Specifically, the trial court found that there was excusable neglect on the part of the plaintiffs due to the extraordinary circumstances present.  The court found that the plaintiffs had suffered life-altering events and resulting psychological traumas which continued well beyond the ninety (90) days to file following the April 8, 2021 fire.  Thus, the trial court granted the motion to permit the late filing of the tort claim notice to permit the plaintiffs to pursue the Newark Housing Authority in a lawsuit.

The Newark Housing Authority appealed that order, arguing that there were no extraordinary circumstances present.  The Housing Authority argued that plaintiffs were physically capable of contacting an attorney in a timely fashion and should have done so at the earliest opportunity, irrespective of their constructive or actual knowledge of the ninety (90) day window for filing the notice of tort claim.

Upon appeal, the Appellate Division noted that for a claimant to pursue a claim against a public entity for personal injuries, it must file a notice of tort claim not later than the nineth (90^th) day after accrual of the cause of action, pursuant to N.J.S.A. 59:8-8.  The date of accrual of a cause of action in tort is typically the date of the incident.  The penalty for failing to file a timely notice of tort claim is that the claimant is forever barred from bringing their claim against the public entity. 

However, the Court noted that the Act provides an exception to plaintiffs where the ninety (90) day period has lapsed and allows prospective claimants to file a motion within one year from the accrual of the cause of action “where they demonstrate extraordinary circumstances” to justify filing a late notice of tort claim.  Pursuant to the statute, the claimant must also demonstrate that the public entity has not been substantially prejudiced by the late notice.

The Appellate Division found that the trial court judge exercised “appropriate discretion” in determining extraordinary circumstances existed in the present facts.  The Court disagreed with the defendant’s argument that extraordinary circumstances equated to physical incapacity.  The Appellate Division noted that there was nothing in the statute or case law that required a plaintiff be physically unable to contact an attorney.  Although physical incapability may be sufficient to prove extraordinary circumstances, it is not a necessary pre-condition for a finding of extraordinary circumstances.  The Appellate Division noted that the trial judges are afforded a wide latitude in determining extraordinary circumstances.

Thus, the Court agreed with the trial court findings that extraordinary circumstances were present based upon the facts of the case.  Therefore, the Appellate Division affirmed the trial court decision, permitting the claim to move forward, based upon the strong public policy in favor of resolving the application on the merits. 

Tags: notice, Tort Claims Act