Opinion
DOCKET NO. A-3303-12T3
12-10-2014
JUDITH BARBER, Plaintiff-Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION AND STATE OF NEW JERSEY MOTOR VEHICLE COMMISSION, Defendants-Respondents.
Salny Redbord and Rinaldi, attorneys for appellant (Alexander J. Rinaldi, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6638-12. Salny Redbord and Rinaldi, attorneys for appellant (Alexander J. Rinaldi, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief). PER CURIAM
Plaintiff Judith Barber appeals from a February 5, 2013, order of the Law Division denying her motion to file a late notice of claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3. We reverse and remand for a hearing.
The facts are as follows. On May 10, 2012, while at a New Jersey Motor Vehicle Commission facility, Barber caught her foot and tripped on a wire while attempting to walk from the counter where she was standing. She was transported to the hospital via ambulance and treated for injuries to her spine, knee, and shoulder. She alleges the wire she tripped over was negligently placed and was a tripping hazard. She also asserts that she suffered severe and debilitating pain, which increased each day.
According to Barber, after the accident she was able to attend doctor visits and get to physical therapy sessions. Otherwise, however, she was bedridden. In that state, her focus was on rehabilitation and her severe pain, and not on filing a lawsuit. Her treatment was delayed while she waited on approval from her insurance carrier to get an MRI. It was not until August 9, 2012, one day after the initial ninety day requirement to file a tort claims notice, that the MRI was performed. See N.J.S.A. 59:8-8.
On August 16, 2012, Barber was advised of the MRI findings, and was scheduled for surgery two days later. On that same date, August 16, 2012, faced with immediate surgery, Barber for the first time contacted an attorney. Barber's attorney immediately sent the required tort claims notice, which at that point was eight days past the ninety day deadline. On August 18, 2012, Barber underwent her surgery as scheduled. The inpatient procedure, which was performed at a hospital, consisted of a laminectomy, excision of a disc, and placement of pedicle screws.
On August 20, 2012, Barber's counsel filed a motion to file a late tort claims notice. The motion was denied in a written decision, effectively barring Barber's case from being heard on the merits. The trial judge's decision was made based on the papers and oral argument, but without a hearing. This appeal follows.
N.J.S.A. 59:8-8 requires a claimant to file notice of her claim against a government entity within ninety days of the accrual of the cause of action. However, in the discretion of the trial court, a claimant may be permitted to file such a notice within one year after the accrual of her claim, provided the public entity or public employee has not been substantially prejudiced. N.J.S.A. 59:8-9. In order to justify a late filing, a claimant must present "extraordinary circumstances" for the failure to file notice within the prescribed time period. Ibid.
Historically, until 1994, the Tort Claims Act required claimants to demonstrate only "sufficient reasons" for the delay, and that the State would not be prejudiced as a result. N.J.S.A. 59:8-9 (prior to 1994 amendment). The Tort Claims Act was amended in 1994, clarifying that "sufficient reasons" for late filing must constitute "extraordinary circumstances." N.J.S.A. 59:8-9. There is no question that this change created a more demanding standard for overcoming the State's immunity from tort liability. As the Supreme Court stated,
Although that change in language suggested that the amendment may have signaled the end to a rule of liberality, Zois v New Jersey Sports and Expo. Auth., 286 N.J. Super. 670, 675, 670 A.2d 92 (App. Div. 1996), the new version does not define what circumstances are to be considered extraordinary and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of extraordinary on the facts presented.
[Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citing Allen v. Krause, 306 N.J. Super. 448 (App. Div. 1997); Ohlweiler v. Chatham, N.J. Super. 399, 404 (App. Div. 1996); O'Neil v. Newark, 304 N.J. Super. 543, 551 (App. Div. 1997)) (quotations omitted).]
More recently in a divided decision, the Supreme Court addressed this same issue in D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130 (2013). In D.D. the plaintiff disclosed private health information to defendant's staff, which they released without her permission. 213 N.J. at 135. As a result, the plaintiff alleged she suffered stress and hypertension that were exacerbated due to the anxiety and embarrassment of the situation. Id. at 135.
D.D. obtained counsel and she and her counsel met with defendant's representatives to discuss the possible resolution of her concerns and thereafter, despite counsel advising plaintiff that he would pursue the matter, he failed to take any action on her behalf. Approximately five months after the accrual of plaintiff's cause of action, she obtained new counsel, who filed a motion seeking leave to file a late claim notice. Id. at 137.
The Supreme Court held that an attorney's inattention, or even malpractice, does not create extraordinary circumstances which justify a late filing. The court held that "[w]e do not find in the statutory language an intention that the increased threshold of extraordinary circumstances can be satisfied by coupling an attorney's inattentiveness with otherwise inadequate medical proofs." D.D., supra, 213 N.J. at 157.
Before this court is the question of what constitutes adequate medical proof to justify a late filing. As to D.D.'s inadequate medical proofs, the majority found that since D.D. had met with both counsel and representatives of the defendant prior to the expiration of the ninety day period, she was not prevented by her medical condition from pursuing her claim. Finding that D.D.'s injuries were vague, common and transitory conditions of stress and emotional strain, the Court held that she was "far from being stymied or even impaired in her ability to act." Id. at 151. In fact, the plaintiff's injuries had not interfered with her ability to hire counsel, but her attorney failed her. Ibid. The plaintiff presented no evidence that she had sought medical care during the ninety day period, and the Court made it clear she still had a remedy in a legal malpractice action. Id. at 158.
Barber claims she suffered a severe debilitating injury which required surgery. In Lowe, supra, 158 N.J. at 629, the Court held that we should review "more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Ibid. (citing Feiberg v. State, D.E.P., 137 N.J. 126, 135 (1994)) (quotations omitted). In line with the above, the court in D.D. made a specific statement that:
[W]e do not leave this plaintiff without a remedy nor does the application of the standard chosen by our Legislature deprive her of justice. To the extent that the claim is barred by the attorney's failing, however, plaintiff's remedy, and her avenue
to secure a just result, lies in an action against the attorney for malpractice.
[D .D., supra, 213 N.J. at 158.]
The Court in D.D. provides no specific criteria for determining whether a medical condition meets the extraordinary circumstances standard other than it must be "severe and debilitating." Each case must be decided based on its own circumstances.
The question for the trial court is whether, when viewed objectively, plaintiff suffered a severe or debilitating injury that impaired her ability to act during the relevant time period. In reviewing a trial court's decision on a motion to file a late notice of tort claim under N.J.S.A. 59:8-9, we use an abuse of discretion standard. See Lamb vs Global Landfill Reclaiming, 111 N.J. 134 (1988).
Here, the court found there was no prejudice to the defendant, but found claimant had not proven extraordinary circumstances based on her medical condition. There are no findings by the court as to whether her condition was severe and debilitating, nor does the court acknowledge that when her motion was denied, plaintiff was left with no remedy. The opinion sets forth plaintiff's claims and defendant's attack on these claims, but the court makes no findings of fact as to how severe and debilitating the actual condition of plaintiff was following the accident.
The Supreme Court has made it clear that when the trial court may be inclined to deny the filing of a late claim, and thereby deny plaintiff any remedy for her injury, it should do so only after a careful analysis of the specific circumstances of the case. Here, there appear to be credibility issues that warrant a hearing before the court can make findings of fact. In so ruling, we do not hold that a hearing would be required in all cases where a plaintiff seeks to demonstrate extraordinary circumstances necessary for leave to file a late notice of claim. However, where there is a material factual dispute as to whether plaintiff's medical condition was severe enough to significantly impact her ability to pursue legal action during the ninety day period following her accident a hearing should be held.
Reversed and remanded for an evidentiary hearing, and reconsideration by the court. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION