On January 14, 2019, the New Jersey Supreme Court issued it’s ruling in the matter of O’Donnell v. New Jersey Turnpike Authority, A-69-17, reversing the Appellate Division’s prior ruling, reinstating the Plaintiff’s Tort Claims Notice and remanding the matter back to the trial level. This is a tremendous victory for the Plaintiffs of New Jersey in the fight to hold public entities accountable in civil suits.
For those who are unaware, whenever a cause of action is brought against a public entity, whether it be NJ Transit, the State of New Jersey, a local police department, a doctor employed by UMDNJ or other State run facility, etc., a Title 59 Notice of Claim form must be filled out and served on the public entity against whom relief is sought, within 90 days of the accident/cause of action. This essentially creates two separate Statutes of Limitations; one for the Tort Claims Notice, and another for the actual filing of the Complaint (which must be done no less than 6 months following the Tort Claims Notice). If the deadline for either is missed, it is an absolute bar to recovery and the case cannot go on. The only exception to the 90-day statute of limitations is if the Plaintiff can show “extraordinary circumstances” as to why the 90-day deadline was missed, and make a motion to allow a late Notice of Claim within 1 year from the date of the cause of action. Even still, practically speaking the 90-day requirement for serving a Notice of Claim is strictly construed, harshly enforced, and can be a significant impediment in bringing a case against a public entity.
The O’Donnell matter arises out of a tragic set of circumstances. Timothy O’Donnell and his minor child were driving on the westbound New Jersey Turnpike Extension at the 14C interchange in Jersey City when their vehicle, which was stopped in the toll plaza, was struck in the rear at a very high rate of speed by another vehicle. The O’Donnell vehicle was ejected out of the toll plaza, across several lanes, and without a solid divider between eastbound and westbound lanes, into oncoming traffic on the Turnpike extension, where it was then struck head-on by an ambulance. Sadly, both Timothy O’Donnell and his minor child perished as a result of their injuries. Pamela O’Donnell, the widow of Timothy, consulted counsel well within the 90-day period, and he filed a Tort Claims Notice against the NJ Turnpike Authority on grounds that there should have been a divider to prevent traffic from crossing directions. Unfortunately, this attorney served the Notice of Claim on the State of New Jersey, a separate public entity from the New Jersey Turnpike Authority, and in doing so, blew the 90-day Statute of Limitations and cut off O’Donnell’s ability to pursue a claim against the Turnpike Authority. After finding new counsel, this mistake was quickly discovered and an amended Notice of Claim was filed with the proper party, and new counsel moved the Court for permission to file a late Notice of Claim, which was granted by the Court. Subsequently, the New Jersey Turnpike Authority appealed this decision, and was successful in overturning the trial court’s decision, which dismissed the O’Donnell’s claim against the NJ Turnpike Authority. The O’Donnell suit was filed in Middlesex County.
Separately from the O’Donnell matter, The Law Office of Patrick Patel represented the driver of the ambulance that was struck by the O’Donnell vehicle, who also sustained serious injuries as a result of the collision. Recognizing the same issue, The Law Office of Patrick Patel properly and timely served the Notice of Claim on the New Jersey Turnpike Authority under the Title 59 requirements, and filed suit in Hudson County, the site of the collision.
Subsequently, the dockets for the two cases were consolidated in Hudson County, at which point new counsel for O’Donnell became aware that the Turnpike Authority was served with a timely Notice of Claim for the same theory of liability in the companion action. This created a unique situation where there were two plaintiffs in one case, with the same cause of action, arising out of the same incident, but with the NJ Turnpike Authority a viable defendant as to one Plaintiff but not the other.
Armed with this new information, counsel for O’Donnell pursued this matter to the Supreme Court of New Jersey with the novel legal question; would the Tort Claims Notice from the companion action allow for constructive notice of the pending lawsuit in theirs? On January 14, 2019, the Supreme Court ruled, overturning the Appellate Division’s dismissal and reinstating the case as to the Turnpike Authority in the O’Donnell matter. The timely filed notice in the companion matter that set forth the same cause of action and theory of liability removed the prejudice to the Turnpike Authority, as they were on notice of the issue. Furthermore, the Notice of Claim form submitted by the Law Office of Patrick Patel included a copy of the police report from the collision, which listed the O’Donnell vehicle and occupants thereof, effectively putting the Turnpike Authority on notice that litigation involving the decedents could be anticipated.
This matter has been remanded to the trial court and is still pending a resolution.
SO WHAT DOES THIS DECISION MEAN FOR PLAINTIFFS IN OTHER CASES?
The O’Donnell decision is a major victory for Plaintiffs who are seeking relief against public entities with Title 59 protection.
The 90-day statute of limitations for the service of a Notice of Claim is obviously not a widely known rule among the general public who may not be aware of the legal ramifications of waiting to consult a lawyer or seek legal advice. Individuals may inadvertently waive their right to pursue legal action merely by waiting too long to seek the advice of counsel, at which point there may be nothing the lawyer can do to help if the 90 days has elapsed. In situations where there are multiple Plaintiffs in a cause of action, the O’Donnell decision paves the way for a relaxation of the Draconian application of this 90-day Notice of Claim deadline. A hypothetical example of a situation where this could occur would be a bus crash involving NJ Transit with multiple passengers injured. As long as one passenger put the public entity on notice properly, other passengers who did not could theoretically continue with their claim provided they acted diligently in seeking legal advice and moved the Court to file a late notice of claim within 1 year. This ruling is a solid step away from the black-and-white application of the notice rule, and more congruent with basic fairness, common sense, and the principles of Title 59 in that the public entity is not prejudiced.
-Joseph A. Siclari, Esq.
You can read entire O’Donnell decision here.