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Matthew J. Behr

Co-Chair, Public Entity & Civil Rights Litigation Practice Group

MJBehr@mdwcg.com

Portrait of Matthew J. Behr

Legal Updates for New Jersey Public Entity & Civil Rights

Covid-19 Meets Extraordinary Circumstances Test, Permitting the Filing of a Late Notice of Tort Claim

Presented by the Public Entity & Civil Rights Litigation Practice Group

May 12, 2021

by Matthew J. Behr

                Bernard Waddell was an employee of Hudson County, New Jersey, when he was diagnosed with COVID-19 on March 27, 2020. On April 1, 2020, Mr. Waddell passed away. His Estate filed a notice of tort claim in November 2020, three-plus months after the 90-day requirement expired. The Estate then filed a motion to permit the late notice of tort claim after the 90-day period passed but within the one-year statutory period that would have forever barred any claim against the public entity, Hudson County. Because the Estate filed the motion within one year of the accrual of the cause of action, the court had to find that the failure to file a timely notice of tort claim met the extraordinary circumstances standard. The court held that it did.

            The court found that the state of New Jersey declared a state of emergency concerning Coronavirus on March 9, 2020. Thereafter, 11 Omnibus Orders were issued by the New Jersey Supreme Court, adjusting and guiding the judiciary system. Specifically, the court found that the guiding principal has been the judiciary’s goal to accommodate the legitimate needs of parties and the recognition of the “pervasive and severe effects of the COVID-19 public health crises.” The court found that the unprecedented health crisis must be taken into consideration when deciding whether there were sufficient reasons for the Estate’s failure to file the notice of tort claim within the 90 days. 

            In support of the motion to file a late notice of tort claim, Ms. Waddell submitted a certification in support of the motion in which she stated that when her husband died of COVID-19, her son also became ill because of COVID-19 and she had to care for him. She further certified that only later did she suspect that Mr. Waddell’s workplace and the policies of Hudson County were at fault for her late husband’s death. The Law Division judge accepted Ms. Waddell’s certification and granted the motion to permit the Estate to file a late notice of tort claim. 

            The courts generally have been rather strict in interpreting sufficient reasons under the exceptional circumstances standard for permitting the filing of late notices of tort claims. This decision demonstrates that the courts may be more lenient over the next few years in finding exceptional circumstances based on the pandemic in granting plaintiffs’ motions to file late notices of tort claims after the 90-day required period. Each motion must be reviewed thoroughly, and oppositions to such motions must be filed when appropriate. It is important to consult an attorney regarding all available defenses under the Tort Claims Act if your public entity or your public employee has been sued. Please do not hesitate to contact me to discuss any issue under the Tort Claims Act. I can be reached at 856-414-6048, or please email me at mjbehr@mdwcg.com.

 

The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

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Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. 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Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.