Professional Liability

Last week the New Jersey Appellate Division and the Third Circuit issued two different opinions in regard to the notice requirements pursuant to the New Jersey Tort Claims Act (TCA). Both highlight the complexity of TCA litigation and courts’ contrary viewpoints.

First, in Estate of Khiev v. South Jersey Transportation Authority, Docket No. A-06230 (App. Div. February 14, 2024), four members of the Khiev family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway, which is owned by the South Jersey Transportation Authority. Approximately one week after the accident, the family contacted an attorney, who requested the police report and video of the crash. Plaintiffs’ counsel then retained two experts to investigate the crash. Plaintiffs’ counsel did not receive the final expert reports and video until a month and a half after the 90 days requirement to file a tort claims notice had expired. 

The Appellate Division upheld the trial court’s determination that, under the discovery rule, the plaintiffs’ claim did not accrue until receipt of the final reports and the video, because it was only when the plaintiffs’ experts reviewed and analyzed the video did they conclude that the defendant might be responsible for the deaths and injuries. Also, the court affirmed the trial court’s finding that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice due to extraordinary circumstances.

In a somewhat conflicting decision, in Spencer v. Princeton University, Civil Action Nos. 23-1663 & 23-1689 (3rd Cir. February 13, 2024), the Third Circuit affirmed the District’s Court’s finding that the plaintiff did not timely file a tort claims notice and dismissed the claims against the Municipality of Princeton. Spencer was seriously injured when he rode his bicycle over a poorly maintained sewer grate on the campus of Princeton University. The plaintiff timely filed a tort claims notice on Mercer County but did not do so for Princeton, instead, sending a notice to Princeton more than nine months after the accident. 

The plaintiff had retained an attorney, who immediately reviewed public documents and retained an investigator. They reached the conclusion that Mercer County owned and maintained the sewer grate. However, seven months later, plaintiff’s counsel was informed by Mercer County that they did not own or maintain the grate, Princeton did. The plaintiff then filed a notice of claim with Princeton but did not file a motion seeking permission to file a late notice of claim. 

The court first held that the accrual date was the date of the accident, because counsel should have been aware from the public records that the grate may have been owned by Princeton, and therefore, there was no reason the plaintiff could not have filed notices with both the County and Princeton. As a result, the discovery rule did not apply.

Second, the plaintiff argued estoppel. The court rejected this argument because Princeton did not stop plaintiff’s counsel from seeking leave to file a late notice. Therefore, the dismissal of Princeton was affirmed.

Both of these cases are excellent examples of the importance for a public entity to immediately retain counsel who thoroughly understands the TCA and all available defenses. Please do not hesitate to contact me to discuss any issue under the TCA. I can be reached at 856-414-6048 or you can email me at mjbehr@mdwcg.com. 

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^{Legal Updates for New Jersey Public Entity & Civil Rights, February 20, 2024, has been prepared for our readers by Marshall Dennehey. 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. © 2024 Marshall Dennehey. All Rights Reserved.}