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Lawyer Inattentiveness Not Extraordinary Enough To Waive Notice for Tort Claims Act (NJ)

March 18, 2013

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In common law, a subject could not sue the sovereign for a tort action.  New Jersey courts abrogated this common law to the displeasure of the Legislature.  The Legislature responded by re-establishing sovereign immunity - but allowing limited exceptions when a person could sue a public entity.  However, in an effort to minimize litigation against public entities, the TCA requires a claimant to give timely notice, i.e. within 90 days so that the claim can be investigated and perhaps resolved outside litigation.   A tardy notice can only be excused for "extraordinary circumstances" - and then only if presented within one year after accrual of the claim. 
This notice provision has been the subject of much scrutiny with many theories advanced to attempt soften its effects.  In <em><a href="">D.D. v. UMDNJ</a>, </em>the New Jersey Supreme Court addressed two common themes:  1)  late notice should be excused because of lawyer inattention, either independently offered or in conjunction with a claim that the plaintiff's medical condition influenced the ability to give timely notice; and 2)  whether oral notice of the claim could be considered substantial compliance.  In short, a divided Supreme court said, no and no.
The majority opinion hewed to the legislative intent that immunity is the general rule and liability is the exception.  Guided by this, the Court held that it was not authorized to grant leave for late notice in a case based upon disclosure of a participant's medical history in connection with a World AIDS Day program.
Although the plaintiff described physical and emotional effects related to the disclosure, the Court did not consider her circumstances to meet the standard of "severe and debilitating."    Moreover, combining this with the foibles of her attorney did not create exceptional circumstances.  In fact, the Court found that a claim of attorney incompetence, inattentiveness or malpractice was not an extraordinary circumstance to justify late notice. Thus, medical complaints that do not demand immeidate attention and did not significantly interfere with the pursuit of a claim will not excuse late notice even if coupled with lawyer inattention.
Finally, the required notice must be written.  The Court ruled that oral notice is simply not substantial compliance underof the Act.
For more information, contact Denise Fontana Ricci at <a href=""></a>.

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