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In Tracey v. Borough of Essex Fells, a case recently decided by the New Jersey Appellate Division, the plaintiff was injured when an off-duty police car nearly struck him while jogging. At the time, Tracey did not believe he was injured, but he did file a police incident report. Two months later, Tracey sought treatment for knee pain, but was told there was no real damage, only minor swelling. Eight months later, however, plaintiff was diagnosed with a knee injury requiring surgery. The source of the injury was attributed Tracey’s earlier fall.
After learning of seriousness of the knee injury, Tracey submitted notice of suit to the municipality as required under the Tort Claims Act (TCA). Tracey moved before the Court to deem the notice as timely filed. The city moved to dismiss under N.J.S.A. 59:8–8, which required that, baring extraordinary circumstances, a claimant must provide the defendant with a notice of claim within 90 days. This Tort Claim Notice should include specific information, such as a general description of the injury, damage or loss incurred, and the amount claimed. The only exceptions to this rule are those situations in which the notice, although both timely and in writing, had technical deficiencies that did not deprive the public entity of effective notice. In order to deem a notice as timely filed, a claimant must show (1) lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of claim; and (5) a reasonable explanation why there was not strict compliance with the statute.
Here, the court rejected Tracey’s argument and found that there were no extraordinary circumstances that would merit extending the 90 day TCA notice period, because Tracey did in fact discover that he had suffered an injury, albeit a minor one, within the 90-day period. On appeal, Tracey argued that by filing the police report he met the technical requirements and adequately put the municipality on notice. The Appellate Division rejected this argument and the panel held that incident reports are no substitute for the Tort Claim Notice. Specifically, the incident reports were not signed by the plaintiff, they were not filed with the municipality, and they gave no notice that the plaintiff was injured or intended to assert a claim against the public entity.
Tracey’s predicament in this case is an important lesson for litigants. As the case demonstrates, the Tort Claims Act sets rather strict time limitations on notice that are not easily relaxes absent extraordinary circumstances. The New Jersey environmental lawyers at Lieberman Blecher & Sinkevich regularly address issues of governmental tort immunity under the Tort Claims Act in toxic injury cases. For example, the firm recently filed a notice of claims against a school district for toxic mold injuries sustained by its students. In meeting the notice requirements of the TCA, it is important to timely and adequately describe the injuries a plaintiff has sustained and the relief that he or she is seeking. If you have questions about governmental tort immunity, our team may be able to assist you.
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