Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

Tags: automobile accident, notice, Tort Claims Act