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Court Finds That Plaintiff’s Notice Of Claim Substantially Complied With The Notice Requirements Of The Tort Claims Act

By on May 27, 2022 in Court Rulings with 2 Comments

Plaintiff, a Rutgers Police Department Officer, was injured on July 12, 2018 when attacked by an individual attempting to be restrained by City of Newark Police officers.  Plaintiff alleges to have suffered serious injuries and was determined to be permanently disabled and unable to perform her duties as a Rutgers Police Officer.  In Peart v. University Hospital of Newark, 2022 N.J. Super. Unpub. LEXIS 854 (App. Div. May 19, 2022), the issue was whether the plaintiff had satisfied the notice requirements of the Tort Claims Act so as to be able to pursue her negligence claim against the public entity defendants.

This incident started when certain City of Newark Police Officers responded to a call for service for the individual who ultimately attacked plaintiff.  Police were familiar with the individual from a prior incident in which he drove erratically in Newark and attempted to evade arrest.  The officers placed the individual in restraints and transported him to the Crisis Emergency Room at University Hospital.  When the individual arrived at the emergency room, it is alleged that the police officers removed his restraints before the doctor could evaluate him. 

Within minutes of the restraints’ removal, this individual became violent and was perceived to be a threat by University Hospital staff.  The behavioral crisis response team was summoned and a call was made for police assistance.  Plaintiff and two officers arrived on the scene.  This individual attacked the officers and beat plaintiff about her head and body, causing her injury.  The individual was ultimately charged with aggravated assault for the attack on the officers.

On October 6, 2018, plaintiff filed a notice of tort claim with the City of Newark.  It alleged that plaintiff’s injuries were caused by the negligent acts and/or admissions of defendants.  Later that month, the City sent plaintiff a deficiency notice stating that the City adopted its own notice of claim form and plaintiff must complete and return it with additional information and documents.

According to the record, the plaintiff attempted to gather additional facts regarding the claim and sought records, reports, communications and other documents from the City of Newark pursuant to OPRA.  Plaintiff made numerous OPRA requests with the City for the next year and she never returned or responded to the City’s deficiency notice with its specialized notice of claim form.

On July 9, 2020, the plaintiff filed a complaint against the defendants University Hospital of Newark, University Hospital Emergency Services, City of Newark, and City of Newark Police Department.  She alleged negligence, gross negligence and violations of the New Jersey Civil Rights Act.

Thereafter, the City filed a motion to dismiss the complaint based upon failure to state a claim upon which relief can be granted and also that plaintiff should be denied the opportunity to file a late notice of tort claim.  Plaintiff then filed an amended complaint, clarifying that the City was vicariously liable for its officers’ alleged violation of plaintiff’s rights under the NJCRA. 

The trial court judge entered an order denying the City’s motion.  The judge ruled that the plaintiff’s notice of claim and supplemental notice which included an e-mailed OPRA request containing details of the attack, substantially complied with the Tort Claims Act.  Further, the judge declined to issue declaratory relief that the plaintiff is not entitled to file a late notice of tort claim.

The City filed a motion for leave to appeal to the Appellate Division, which was granted and stayed the trial court proceedings while the appeal was pending.  On appeal, the City argued that the plaintiff’s tort claims should have been dismissed for failing to serve the supplemental information requested in the City’s specialized claim form, as well as the motion judge should have declared that plaintiff is not entitled to file a late notice of claim.

The Appellate Division disagreed with the City’s argument that the judge abused his discretion by determining that plaintiff’s notice of claim substantially complied with the Tort Claims Act.  To the contrary, the Appellate Division affirmed the trial court’s finding of substantial compliance.

Under the New Jersey Tort Claims Act, for a plaintiff to pursue a claim for a personal injury, the Tort Claims Act requires that prior to filing a complaint, a claimant must provide notice of claim to a public entity within ninety days of the claims accrual (N.J.S.A. 59:8-8(a)).  The purpose of the notice is to allow the public entity at least six months to review and the opportunity to settle a meritorious claim, to provide the public entity with prompt notification of the claim to be able to adequately investigate the facts and prepare a defense, to afford the public entity a chance to correct the conditions or practices which give rise to the claim and inform the State in advance as to the indebtedness or liability that it may be expected to meet.

Under N.J.S.A. 59:8-4, the notice of claim must provide only six items to include the following:

  • The name and address of the claimant;
  • The address to which the person presenting the claim desires notices to be sent;
  • The date, place and other circumstances of the occurrence which gives rise to the claim;
  • A general description of the injury, damage or loss incurred;
  • The names of the public entity, employee or employees causing the injury, damage or loss;
  • The amount claimed, including the estimated amount of any injury, damage, or loss.

In this case, the plaintiff’s initial notice of claim sent on October 6, 2018 was timely but did not meet all of these requirements.  This initial notice of claim failed to identify the individual and provide sufficient facts to alert the City of its liability.

The Appellate Division noted that the doctrine of substantial compliance within the Tort Claims Act served “the purpose of alleviating the hardship and unjust consequences which attend technical defects of otherwise valid claims.”

Under the case law: “substantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purpose for which notices of claims are required.”  To be able to satisfy this standard, the plaintiff must be able to show the lack of prejudice to the defending party, the steps taken to comply with the statute involved, a general compliance with the purpose of the statute, a reasonable notice of the plaintiff’s claim, and a reasonable explanation why there was not strict compliance with the statute.

In this case, on October 23, 2018, five days beyond the statutory 90 day period, the City’s counsel had sent the deficiency notice to plaintiff’s counsel requesting that the plaintiff complete and return the City’s adopted notice of claim form.  It is undisputed that this form was never returned. 

However, on December 7, 2018, plaintiff’s counsel sent an e-mail containing an OPRA request to the City Clerk, in which he asked for government records relating to the “crime perpetrated by the individual.”  Further, the e-mail provided a copy of the Rutgers Police Department Incident Report and alleged that the individual had been transported to University Hospital by members of the Newark Police Department.  The Incident Report included a narrative from Officer Clifford, who responded to the Emergency Crisis and witnessed the individual’s attack on plaintiff. 

The Appellate Division found that the plaintiff’s initial Notice of Tort Claim, along with the e-mailed OPRA request and attached police report gave “some indication of the asserted basis” of the City’s liability in compliance with N.J.S.A. 59:8-4(c).  This e-mailed OPRA request identified the individual who attacked plaintiff and provided sufficient details to allow the City to investigate the claim.

Further, the Appellate Division noted that plaintiff attempted to provide all possible information of the City by making numerous OPRA requests, many of which the City did not answer for several months.  The City had not demonstrated prejudice because of plaintiff’s supplemental notice.  The Court found that the incident was serious and the City had ample opportunity to conduct its own investigation, as plaintiff’s supplemental notice provided the specific circumstances on the individual’s attack.

Thus, the Appellate Division found that in keeping with the Tort Claim Act’s goals, “plaintiff’s initial Notice of Claim and Supplemental Notice enabled the City to properly evaluate its liability and potential exposure and, if it chooses to engage in settlement negotiations prior to the commencement of suit.”  Hence, the Appellate Division found that the trial court judge did not abuse his discretion in ruling that the plaintiff’s notice “substantially complied” with the Tort Claim Act’s notice requirement.

The Appellate Division also rejected the City’s argument that the plaintiff’s notice of claim was deficient because he failed to return the City’s specialized notice of claim form.  The Court rejected that argument because the plaintiff’s notice need not be supplied in a public entity’s specialized notice of claim form so long as a claimant provides the information requested, which plaintiff did so in her supplemental notice.  Further, the Appellate Division noted that the plaintiff’s failure to return the form can be attributed to her numerous unanswered OPRA request of the City.  The information that she provided in her initial and supplemental notice was all that she could obtain despite diligent effort.  Thus, the Appellate Division ruled that under the circumstances, “plaintiff’s failure to return the form is excusable and does not preclude finding substantial compliance.”

Because the Appellate Division found that plaintiff substantially complied with the notice requirements of the Tort Claims Act, it did not address the City’s request for declaratory relief that plaintiff was not entitled to leave to file late notice of claim.  Hence, the Appellate Division affirmed the trial court’s ruling, denying the City’s request to dismiss the complaint.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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There Are 2 Brilliant Comments

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  1. Stephen Gilbert says:

    Are you going to retire or continue to work successfully for ever?

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