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Discovery Rule Applies to Notice Provisions of the NJ Tort Claims Act.

September 7, 2017

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As a prerequisite to proceeding with a tort claim against a public entity, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of the cause of action.  Under “extraordinary circumstances” accompanied by a showing that the public entity had not been substantially prejudiced, a plaintiff may file a late notice of claim within one year of the accrual of the claim.  Failure to file in accordance with these statutory provisions bars a plaintiff from bringing a tort claim against the public entity.
The New Jersey Supreme Court in <a href="http://caselaw.findlaw.com/nj-supreme-court/1868835.html"><em>Elazar v. Macrietta Cleaners, Inc</em></a>. held that the common law discovery rule applies to determine the date on which a claim against a public entity begins to accrue.  Plaintiffs owned an electronics repair store adjacent to a dry cleaning store.  Township owned property behind the dry cleaning store.  In the late 1980s, plaintiffs noticed a chemical odor emanating from the dry cleaning store, and began having medical problems in the early 1990s.  In 1998, the dry cleaning store arranged for the removal of underground storage tanks.  In 2010, the dry cleaning store retained an environmental consultant who sampled air quality.  In 2011, plaintiffs received two letters from the consultant, which advised that soil located on the dry cleaning store and the Townships’ properties was going to be excavated due to evidence of soil contamination emanating from the underground storage tanks.  In January 2012, plaintiffs were advised by their doctors that their medical conditions were connected to the air contaminant reported by the consultant.  In March, 2012 plaintiffs retained an attorney who filed an OPRA request with the New Jersey Department of Environmental Protection that resulted in the production of documents in July 2012 indicating that the leaking underground storage tanks had been on Township property.  In September 2012, plaintiffs filed suit against the dry cleaning store, and a notice of claim against the Township.  One year later, plaintiffs amended their complaint to join the Township.
The Township moved for summary judgment, arguing that plaintiffs should have been aware in 2011 (i.e. when they received the letters from the environmental consultant), that they had a potential claim against the Township.  Accordingly, the Township argued that plaintiffs’ claims were barred since they failed to file a notice of claim within 90 days of receipt of those letters.  In opposition, the plaintiffs argued that their claim was timely because it was filed within ninety days of July 2012, the date on which they received documents from the NJDEP that revealed the tanks were located on Township property.  The Supreme Court agreed with the plaintiffs, and  held that the common law discovery rule applied to the notice of claim procedure in the Tort Claims Act.  The standard was whether plaintiffs knew or should have known of sufficient facts to support their claim against the Township.
In the context of multi-defendant cases, it is possible for a plaintiff to be reasonably unaware that a third party may also be responsible when it is clear that another party is responsible.  Therefore, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals the other party’s responsibility.
Thanks to Michael Noblett for his contribution to this post.
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<a href="http://caselaw.findlaw.com/nj-supreme-court/1868835.html"></a>
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