The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it.
But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey.
In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney.
The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is “ordinary” “these days.” Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline.
UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees.