HANSEN v. ATLANTIC COUNTY JUSTICE FACILITY et al
MEMORANDUM OPINION AND ORDER Denying 3 Motion to File Late Notice of Claim. Signed by Magistrate Judge Joel Schneider on 8/18/17. (js)
[Doc. No. 3]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 17-0466 (JBS/JS)
ATLANTIC COUNTY JUSTICE
FACILITY, et al.,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion to File Late
Notice of Claim” [Doc. No. 3] filed by plaintiff Brooke Hansen.
Plaintiff requests the Court to find that her Notice of Tort Claim
served on defendant Atlantic County1 on or about November 10, 2016
was timely filed pursuant to the New Jersey Tort Claims Act
(“NJTCA”), N.J.S.A. 59:1-1, et seq. In the alternative, plaintiff
(“Notice”) pursuant to N.J.S.A. 59:8-9 because “extraordinary
circumstances” prevented her from timely filing her Notice. The
Defendants Atlantic County Justice Facility d/b/a The Gerald
L. Gormley Justice Facility and Atlantic County Department of
Public Safety played no role for the purpose of the present motion.
Accordingly, “defendant” refers to defendant Atlantic County
unless otherwise noted.
plaintiff’s reply [Doc. No. 16]. The Court recently held oral
argument. For the reasons to be discussed, plaintiff’s motion is
The present action arises out of injuries plaintiff sustained
when she fell and struck her head while detained at the Atlantic
caused her fall. Am. Compl. ¶¶ 1-2 [Doc. No. 7].
On January 28, 2016, plaintiff was arrested and taken into
custody during a traffic stop by the New Jersey State Police due
to a bench warrant issued out of Atlantic County. During the stop,
plaintiff informed the arresting officers that she was under the
influence of alcohol and drugs (heroin and Xanax). Id. ¶¶ 17-22.
Upon arriving at the Facility, plaintiff informed the Facility
personnel that she was intoxicated and under the influence of
drugs. Id. ¶ 24. Due to concerns about possible withdrawal symptoms
raised after medical and mental health evaluations, the Facility
personnel assigned plaintiff a “special needs” status. Def.’s Exs.
B-D [Doc. Nos. 14-2]. Plaintiff’s “special needs” status called
for a “lower level, lower bunk” medical housing between January 28
and February 12, 2016. Def.’s Ex. D.
Prior to being admitted to the Facility’s general population,
plaintiff was placed in a holding cell in the admissions area.
effects of alcohol and drugs, resulting in her fall in the holding
cell. As a consequence of her fall, plaintiff suffered “significant
visible injuries to [her] face and head.” The Facility’s medical
treatment and transported her to Shore Medical Center (“Shore
Medical”). Am. Compl. ¶¶ 30-33; see also Def.’s Ex. E.
Plaintiff arrived at Shore Medical at approximately 5:30 p.m.
on January 28, 2016 and was diagnosed with a “closed head injury”
and “neck sprain/strain.” A computerized tomography (“CT”) scan of
plaintiff’s brain performed on the same day also revealed a “2.3
x 1.3 cm mass” on the right side of her brain. Shore Medical
(“MRI”) of the mass due to the possibility that it “may be related
to a meningioma.” Am. Compl. ¶¶ 34-35; Am. Compl. Ex. A [Doc. No.
7-1]. Plaintiff was discharged from Shore Medical later that
evening and was transported back to the Facility. On February 11,
2016, plaintiff was transported to Shore Medical for a follow-up
MRI as recommended. The MRI revealed a “large flow void arising
from the right internal carotid artery measuring 2 cm in greatest
dimension, most consistent with giant aneurysm.” Am. Compl. ¶¶ 3637; Am. Compl. Ex. B [Doc. No. 7-2].
Plaintiff remained incarcerated at the Facility until April
30, 2016 or for a total of ninety-three (93) days. Am. Compl. ¶¶
38-39. Throughout her incarceration, plaintiff made a number of
telephone calls to her mother and her boyfriend “John” regarding
her circumstances.2 See Def.’s Exs. H2-H6 [Doc. Nos. 14-4 to 148]. In particular, plaintiff spoke with John on numerous occasions
to discuss: (1) plaintiff’s January 28, 2016 fall at the Facility
plaintiff’s need for surgery due to her aneurysm (Def.’s Ex. H5
Phone Tr. 153:7-155:10); (4) the actions allegedly taken by John
and plaintiff’s mother to obtain plaintiff’s medical records for
“Mr. Batt”3 (id. 155:15-156:14); (5) Mr. Batt’s alleged statements
The Court notes that plaintiff’s transcripts are replete
with conversations which demonstrate plaintiff’s awareness of her
situation and her ability to look after her own affairs. The Court
will not recite each and every conversation but incorporates herein
by reference defendant’s summary of the transcripts in its
opposition. See Def.’s Opp’n Statement of Facts ¶¶ 18-47.
Furthermore, defense counsel represented that the transcripts are
complete and plaintiff’s counsel did not raise any objections to
the Court’s reliance on the evidence. Aug. 11, 2017 Oral Argument
Transcript (“OA Tr.”) 7:8-22.
3 “Mr. Batt” refers to Gerald Batt, Esquire who represented
plaintiff in her criminal matters. It is not entirely clear what
role, if any, counsel played in the present matter. According to
plaintiff, she was under the false impression that Mr. Batt was
representing her in pursuing a personal injury claim due to John’s
alleged misrepresentations. Pl.’s Reply at 4 [Doc. No. 16].
However, according to Mr. Batt’s March 16, 2017 e-mail, counsel
did not represent plaintiff in any civil matter and he did not
recall ever discussing the matter with plaintiff or anyone on her
behalf. Pl.’s Ex. D [Doc. No. 16-4]. It is true that plaintiff
to John that he would be able to represent plaintiff once counsel
has her medical records (Def.’s Ex. H4 Phone Tr. 87:18-88:20); (6)
plaintiff’s letter to her public defender regarding her criminal
matter (Def.’s Ex. H3 Phone Tr. 12:1-25); and (7) plaintiff’s
attempt to communicate with Mr. Batt by passing a letter to another
inmate to be delivered to Mr. Batt (Def.’s Ex. H2 Phone Tr. 65:566:5). 4 It
conversations made by inmates and they are informed of this policy
during each and every telephone conversation. Def.’s Opp’n at 6
[Doc. No. 14]; see also Def.’s Ex. G ¶ 4(d) [Doc. No. 14-3].
attempted to communicate in writing with Mr. Batt without success
during her incarceration. See Pl.’s Reply at 8-9. However,
plaintiff’s phone transcripts plainly indicate she was trying to
find out why Mr. Batt was not representing her. Id. at 5 (citing
Def.’s Exs. H6 Phone Tr. 49:11-15, 104:18-22, H5 Phone Tr. 25:1114, 46:8-9, 112:22). Plaintiff’s own words belie her claim that
she thought Mr. Batt was representing her.
4 This evidence contradicts plaintiff’s allegation in her
incarceration, Ms. Hansen communicated with counsel, who she
believed was representing her as to her fall.” See Am. Compl. ¶
45. At oral argument plaintiff’s counsel clarified plaintiff’s
[Plaintiff] thought she was being adequately represented
by counsel, but in fact she wasn’t and she had no way of
knowing that because -- or she may have had way of
knowing that but she didn’t -- people were telling her
that oh yeah, this attorney is going to do this for you,
he’s got it, don’t worry about it, he’s taking care of
OA Tr. 12:23-13:5. The Court construes plaintiff’s argument on
this point as claiming that plaintiff was “lulled” into inaction
by third parties’ reassurances that others were acting on her
According to plaintiff, she did not discover the full extent
of her injuries and the causal connection between her symptoms and
the January 28 fall until November 2, 2016.5 On that date, she
visited the Emergency Department of Kennedy University Hospital
(“Kennedy”) complaining of “severe pains in her head and abnormal
swelling and blurry vision in her right eye.” Kennedy performed an
additional CT scan and MRI of plaintiff’s brain which revealed
that plaintiff’s brain aneurysm was increasing in size and required
emergency surgery to remove the aneurysm. Am. Compl. ¶¶ 50-54; Am.
Compl. Ex. C [Doc. No. 7-3]. Plaintiff immediately retained her
present counsel following the November 2 visit to Kennedy and
counsel served plaintiff’s Notice on all necessary public entities
on November 10, 2016 pursuant to the NJTCA. Am. Compl. ¶ 55; Am.
Compl. Ex. D [Doc. No. 7-4]. On or about November 15, 2016,
defendant responded by disputing that plaintiff’s November 10
Notice was timely. See Def.’s Ex. F [Doc. No. 7-3]. Plaintiff
subsequently underwent her first emergency surgery to remove the
aneurysm on November 21, 2016; however, it was aborted due to
Although not determinative to plaintiff’s motion, the Court
notes and plaintiff has conceded that aside from plaintiff’s bald
assertions, there is no support in the record for plaintiff’s
contention that on November 2, 2016, a doctor told her that her
aneurysm was causally related to the fall. OA Tr. 9:16-19; Pl.’s
Br. at 1 [Doc. No. 3-2]. In fact, plaintiff’s counsel conceded
“there’s no dispute that [plaintiff] knew she was injured when she
fell and hit her head.” OA Tr. 14:16-17.
complications. Plaintiff ultimately had her aneurysm removed on
December 14, 2016. Am. Compl. ¶¶ 56-58.
Plaintiff filed the instant action on January 23, 2017 [Doc.
No. 1] and amended her complaint on January 27, 2017. [Doc. No.
7]. Plaintiff asserts the following claims: (1) substantive due
process civil rights violation under 28 U.S.C. § 1983 and New
Jersey Civil Rights Act (“NJCRA”), N.J.S.A. 10:6-1, et seq.; (2)
conditions of public property pursuant to N.J.S.A. 59:4-2. See
generally Am. Compl.
Plaintiff filed the present motion on January 25, 2017,
requesting the Court to find her November 10, 2016 Notice was
timely filed under the “discovery rule.” Plaintiff relies on
N.J.S.A. 59:8-8 to argue her claims did not accrue until November
2, 2016 when she allegedly discovered the full extent of her
injuries and the causal connection between her symptoms and the
January 28, 2016 fall. In the alternative, plaintiff requests the
Court to grant her leave to file a late Notice under N.J.S.A. 59:89 and asserts that “extraordinary circumstances” exist to warrant
such relief. Pl.’s Br. at 9-12. In support, plaintiff directs the
Court’s attention to her incarceration during the entire 90-day
filing period, her medical and mental condition allegedly due to
her withdrawal/detox from drug use, the “debilitating effects of
her head injury and aneurysm,” and her inability to obtain new
circumstances are “extraordinary” when considered together and,
thus, the Court’s leave to file late Notice of Claims is warranted.
Pl.’s Reply at 7-9. Plaintiff further argues defendant fails to
“extraordinary circumstances” prohibited plaintiff from timely
filing her Notice. Id. at 9.
In opposition, defendant argues plaintiff’s claims accrued on
or about January 28, 2016 when she fell at the Facility and was
treated at Shore Medical.6 The crux of defendant’s argument is that
the discovery rule is inapplicable to plaintiff’s claims because
plaintiff was fully aware of the fall, her injuries, the need for
surgery and the “identity of the target of a lawsuit” as early as
January 2016. See Def.’s Opp’n at 6.
Defendant further argues plaintiff’s claim of “extraordinary
circumstances” is baseless because there is nothing extraordinary
The Court notes that defendant’s motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) is pending before the
Honorable Jerome B. Simandle, U.S.D.J. In its motion to dismiss as
to plaintiff’s tort claims, defendant incorporates its argument
and law set forth in its opposition to plaintiff’s present motion.
Def.’s Mot. at 2, 13 [Doc. No. 17]. As noted, plaintiff asserts
tort claims and civil rights violations under state and federal
law. Plaintiff’s civil rights claims are not subject to the notice
requirement of the NJTCA. See Cty. Concrete Corp. v. Town of
Roxbury, 442 F.3d 159, 174 (3d Cir. 2006) (“It is true that the
NJTCA’s notice requirements do not apply to federal claims,
including § 1983 actions or to state constitutional torts.”
(internal citations omitted)). Accordingly, the Court’s decision
in the present matter is not case-dispositive.
defendant argues that nothing about plaintiff’s incarceration
prevented her from timely filing her Notice because the Facility
was “ready, willing and able to assist plaintiff” in filing the
Notice. Id. at 18. Defendant further argues that nothing about
plaintiff’s physical or emotional condition prevented her from
timely filing her Notice because plaintiff was “able to ambulate,
converse, read and write, and communicate with her family and
friends.” Id. at 19. As to plaintiff’s argument that she was unable
extraordinary circumstances.” Id. at 20. In support, defendant
mainly relies on plaintiff’s telephone conversations with her
family and friends during her incarceration. In its brief defendant
argued it is substantially prejudiced by plaintiff’s failure to
timely file her Notice. Defendant withdrew this position during
oral argument. OA Tr. 25:13-18.
As will be discussed, plaintiff’s motion is denied. The Court
declines to apply the discovery rule to plaintiff’s claims, finding
that her tort claims accrued on the date of her fall at the
plaintiff’s November 10, 2016 Notice was not timely filed within
the 90-day window pursuant to the NJTCA. The Court further finds
plaintiff fails to demonstrate “extraordinary circumstances” to
justify a late Notice of Claim pursuant to N.J.S.A. 59:8-9.
Under the NJTCA, “[n]o action shall be brought against a
public entity or public employees . . . unless the claim upon which
it is based shall have been presented in accordance with the
procedure set forth in this chapter.” N.J.S.A. 59:8-3. The purpose
of the NJTCA is to “reestablish the immunity of public entities
while coherently ameliorating the harsh results of the doctrine.”
Elazar v. Macrietta Cleaners, Inc., C.A. No. 078079, 2017 WL
3161116, at *6 (N.J. July 26, 2017) (quoting Beauchamp v. Amedio,
751 A.2d 1047, 1049 (N.J. 2000)); see also Jones v. Morey’s Pier,
Inc., C.A. No. 077502, 2017 WL 3184454, at *6 (N.J. July 27, 2017)
(noting that the NJTCA provides a “broad but not absolute immunity
for all public entities” and is intended “to bring uniformity to
the laws in this State with respect to sovereign immunity to tort
claims enjoyed by public entities” (citations omitted)).
The NJTCA requires a claimant to file a Notice of Claim within
ninety (90) days of the accrual of the claim as a “prerequisite to
proceeding with a tort claim against a public entity.” Elazar,
2017 WL 3161116, at *6. A failure to comply with the 90-day filing
barred from recovering against [the] public entity.” N.J.S.A.
discretion to allow the late filing of a Notice of Claim. “Under
extraordinary circumstances, and accompanied by a showing that the
public entity has not been substantially prejudiced, a plaintiff
may file a late notice of claim within one year of the accrual of
the claim.” Elazar, 2017 WL 3161116, at *6 (citing N.J.S.A. 59:89); see also Tripo v. Robert Wood Johnson Med. Ctr., 845 F. Supp.
2d 621, 627 (D.N.J. 2012).
In deciding plaintiff’s motion, the Court must engage in a
“sequential analysis” to determine whether plaintiff’s Notice was
timely. Beauchamp, 751 A.2d at 1051. To do so, the Court must first
determine the date on which plaintiff’s tort claims accrued.
Elazar, 2017 WL 3161116, at *6 (citations omitted). The New Jersey
Supreme Court explained:
The first task is always to determine when the claim
accrued. The discovery rule is part and parcel of such
an inquiry because it can toll the date of accrual. Once
the date of accrual is ascertained, the next task is to
determine whether a notice of claim was filed within
ninety days. If not, the third task is to decide whether
extraordinary circumstances exist justifying a late
notice. Although occasionally the facts of a case may
cut across those issues, they are entirely distinct.
Beauchamp, 751 A.2d at 1051). Accordingly, the Court will begin
its analysis by determining the accrual date of plaintiff’s tort
Accrual Date and Discovery Rule7
plaintiff’s tort claims and, thus, plaintiff’s claims accrued on
January 28, 2016. Therefore, plaintiff’s Notice of Tort Claims
served on November 10, 2016 was untimely pursuant to N.J.S.A. 59:88.
significant way”; however, the comments to section 59:8-1 provide,
“[i]t is intended that the term accrual of cause of action shall
be defined in accordance with existing law in the private sector.”
Elazar, 2017 WL 3161116, at *6 (quoting Beauchamp, 751 A.2d at
1050). The existing case law generally holds that a “claim accrues
on the date on which the underlying tortious act occurred.” Id. at
*7 (citing Beauchamp, 751 A.2d at 1050). Nonetheless, in limited
situations where the claimant is unaware of his injury or unaware
that a third party is responsible for a known injury, courts in
New Jersey have applied the discovery rule to toll the accrual
Plaintiff fails to present any legal argument as to the
accrual date of her claims or applicability of the discovery rule
in her papers. See Pl.’s Br. at 9-12; see also Pl.’s Reply at 712. Plaintiff merely states that she did not fully appreciate the
severity of her injury and its causal relationship with her fall
until November 2, 2016. As noted, the record does not support
plaintiff’s assertion on this point. See supra n.5. It appears the
crux of plaintiff’s argument is related to the “extraordinary
circumstances” which allegedly prevented her from timely filing
her Notice. Nonetheless, the Court will engage in a “sequential
analysis” to determine in the first instance the accrual date of
plaintiff’s tort claims.
date. Id. (citation omitted). Stated differently, “[b]y operation
of the discovery rule, the accrual date is tolled from the date of
the tortious act or injury when the injured party either does not
know of his injury or does not know that a third party is
responsible for the injury.” Id. (citing McDade, 32 A.3d at 1129);
see also Tripo, 845 F. Supp. 2d at 628 (“By its own terms, [the
discovery rule] applies only where the injured party has no reason
to know of the existence of a claim.” (citing Lopez v. Swyer, 300
A.2d 563, 566 (N.J. 1973))). The same principle applies under the
requirement tolls the accrual date and “the ninety-day period
within which the injured party must file a notice of claim against
a public entity is likewise delayed until the injured party learns
of the injury or of the third party’s responsibility for the
injury.” Elazar, 2017 WL 3161116, at *7 (first citing McDade, 32
A.3d at 1129; and then citing Beauchamp, 751 A.2d at 1153). In
striking a balance between the immunity of public entities and the
harsh results of the doctrine, the NJTCA “allows only a short
period for service of a notice of claim on the responsible public
entity” once the accrual date is determined. Id. (citing McDade,
32 A.3d at 1129).
In the present matter, plaintiff requests the Court to find
her tort claims accrued on November 2, 2016 when she allegedly
came to “fully appreciate the severity of her conditions [and]
that the symptoms she was experiencing were casually [sic] related
to her injuries from the fall.” Plaintiff further argues she first
learned her aneurysm required brain surgery on November 2, 2016.
Pl.’s Br. at 7. In opposition, defendant argues that plaintiff was
fully aware of “her accident, her injuries, the necessity of
surgery, and of the target of a lawsuit” in January or February
2016. See Def.’s Opp’n at 6.
The Court agrees with defendant. This is so because it cannot
be contested that plaintiff knew of her injury on January 28, 2016
“Emergency Department Note-Physician” (“ER Note”) attached to
plaintiff’s amended complaint indicates that plaintiff was able to
provide her medical history and the description of her fall to the
examining physician. Id. In particular, the ER Note indicates:
“Additional history: pt. from jail, was in intake after arrested
. . . while at intake, pt. fell from standing position and hit
head . . . pt. not sure if blacked out, pt. arrived awake, verbally
responsive at exam, requesting not to get narcan, pt. moving all
4 ext. in no acute distress.” Id. Plaintiff is mistaken in her
belief that the discovery rule tolls the accrual date under the
NJTCA until a claimant becomes fully aware of the extent of her
injuries. See Beauchamp, 751 A.2d at 1053 (“Although the full
extent of an injury or loss may not be known, the notice is
triggered by the occurrence of injury and must be filed in order
for a complaint to be lodged against the public entity.”). The
record is clear, and plaintiff concedes, that she was aware of her
head injury due to the January 28, 2016 fall as evidenced by the
physician on the same date.
Likewise, plaintiff was aware that a third party may be
responsible for her injury on the date of the incident because
plaintiff was able to provide the location of her fall—intake area
of the Facility—to the examining physician at Shore Medical. See
transcript of plaintiff’s phone calls shows she was aware that a
third party may be responsible for her injury by February 16, 2016
at the latest when she spoke with her boyfriend John:
Nothing, he just said that it’s pretty serious and
he’s going to keep his eye on me and see me every week.
Brooke, listen, that’s important.
I know this is important, and my mom is getting my
medical information. So you got to get Mr. Batt to get
this -- maybe get a lawsuit going because.
Listen. Listen, and it’s from the fall?
Well, that’s where he’s -- he’s not sure if it’s
from the fall or if it’s from -- if it happened at birth
or it’s from anything -Def.’s Ex. H6 Phone Tr. 132:25-133:11. Plaintiff’s transcript also
evidences she clearly related her injuries to her fall when she
told John on February 16, 2016: “Like you’re going to have me do
all this and instead of getting Mr. Batt to help get a lawsuit
going. . . . Because you know this is all because of the fall.”
Id. 134:4-10. The fact that early on plaintiff associated her
injuries with her January 28, 2016 fall is further evidenced by
plaintiff’s February 17, 2016 conversation when she told John:
“[I]t would be nice to -- it would be nice to have . . . . A
lawsuit for neglecting me for six days after I -- banged my head.
. . . Hopefully I can get my f**kin lawsuit that I’ve been wanting
all my life.” Def.’s Ex. H5 Phone Tr. 14:19-15:5.
Therefore, since plaintiff was aware her head injury was due
to her fall as early as January 28, 2016, and no later than February
16, 2016, the discovery rule is of no assistance to plaintiff.
Accordingly, the Court finds that plaintiff’s tort claims accrued
on January 28, 2016 and that her November 10, 2016 Notice served
on defendant was untimely pursuant to N.J.S.A. 59:8-8. The Court
will now discuss whether plaintiff has sufficiently demonstrated
“extraordinary circumstances” to justify allowing her to file a
late Notice of Claim pursuant to N.J.S.A. 59:8-9.
Late Notice of Claim Under N.J.S.A. 59:8-9
The thrust of plaintiff’s motion is if the Court finds her
tort claims accrued on the date of her fall at the Facility, she
should be permitted to file a late Notice of Claim pursuant to
N.J.S.A. 59:8-9. According to plaintiff, her medical and emotional
condition while incarcerated and being under the wrong impression
circumstances. Plaintiff further argues that defendant failed to
show it will be substantially prejudiced by a late Notice. As
plaintiff’s circumstances. The Court agrees with defendant there
failure to timely comply with N.J.S.A. 59:8-8. Ignorance of the
ninety-day deadline does not excuse late filing. D.D. v. Univ. of
Med. & Dentistry of N.J., 61 A.3d 906, 921 (N.J. 2013) (citation
As noted, pursuant to N.J.S.A. 59:8-9, the Court may exercise
its discretion to allow plaintiff to file a late Notice within one
extraordinary circumstances sufficiently explaining her failure to
timely file her Notice and (2) defendant has not been substantially
“extraordinary circumstances”8 and the issue of whether a claimant
has demonstrated extraordinary circumstances must be determined on
a case-by-case basis. Tripo, 845 F. Supp. 2d at 631 (citation
The New Jersey Legislature amended the NJTCA in 1994 to add
the “extraordinary circumstances” language to section 59:8-9. The
Supreme Court of New Jersey recognized that the intent behind the
amendment was to raise the bar for filing a late Notice of Claim
by replacing a “fairly permissive standard” with a “more demanding
one.” D.D., 61 A.3d at 916-17 (“Courts faced with applications for
leave to file a late notice of claim, therefore, must proceed with
their evaluation mindful of the Legislature’s direction that the
proofs demonstrate circumstances that are not merely sufficient,
but that they instead be extraordinary.”).
circumstances exist, the Court must focus on “evidence that relates
to plaintiff’s circumstances as they were during the ninety-day
period, because that is the time during which the notice should
have been filed.” D.D., 61 A.3d at 918. Nonetheless, several
guideposts can be gleaned from New Jersey case law discussing
extraordinary circumstances under the NJTCA.
Medical or Emotional Conditions
extraordinary, they must be “severe or debilitating.” In other
condition and the consequential impact on the claimant’s very
ability to pursue redress and attend to the filing of a claim.”
Id. at 917-18 (citations omitted). Here, plaintiff asserts her
circumstances. Plaintiff also argues during her incarceration she
“was not of sound mind, suffered from brain damage, depression
and anxiety.” Pl.’s Br. at 1.
While the Court does not minimize the potential impact of
plaintiff’s brain aneurysm and the consequences of drug addiction,
the record does not support plaintiff’s contention that her medical
or emotional condition were sufficiently “severe or debilitating”
to prevent her from attending to her affairs, including filing her
Notice of Claim. In fact, the opposite is true. Plaintiff’s
conversations and actions demonstrate that at all relevant times
she was cogent, alert and attentive to her circumstances. Plaintiff
was also unquestionably aware of her fall and the fact she was
injured from the fall. Indeed, as discussed infra, during her
incarceration plaintiff even discussed the possibility of a civil
lawsuit arising from her fall. And, she also discussed the details
of her fall.
Plaintiff’s phone conversations plainly belie her claim that
while in jail she was incapacitated. For instance, plaintiff’s
medical or emotional condition did not prevent plaintiff from
“repeatedly questioning whether Mr. Batt in fact represented her,
misrepresenting his communications with Mr. Batt.” Pl.’s Reply at
5 (relying on defendant’s Exhibit H6 attached to its opposition to
plaintiff’s motion). Nor did plaintiff’s medical or emotional
condition prevent her from seeking redress and attend to her
requesting information in March 2016. See Def.’s Ex. H3 Phone Tr.
12:1-10. Accordingly, the Court finds that plaintiff’s medical or
Nor is plaintiff’s incarceration during the 90-day filing
period extraordinary. Plaintiff argues while ignorance of the law
and attorney negligence may be an insufficient basis to permit the
filing of a late Notice, “an attorney’s negligence . . . combined
with the victim’s deprivation of liberty or physical incapacity,
both of which exist here” support the finding of extraordinary
circumstances. Pl.’s Br. at 12 (citing Bayer v. Twp. Of Union, 997
A.2d 1118, 1130 (N.J. Super. Ct. App. Div. 2010)). Plaintiff’s
reliance on Bayer is misplaced because she fails to consider the
full context of the decision. In Bayer, the Appellate Division
affirmed the lower court’s denial of a motion to file a late claim.
The court reasoned that the claimant arrestee’s desire to obtain
dismissal of his criminal charges before filing his Notice so not
possibility of an extraordinary circumstance finding based on the
same facts where the claimant is “incarcerated, disabled, or
otherwise physically incapable of protecting his rights during the
90-day filing period.” Bayer, 993 A.2d at 1130-31. However, that
determination is to be done on a case-by-case basis and Bayer does
not stand for the proposition that incarceration is extraordinary
Plaintiff’s incarceration during the 90-day window is not
determinative here. The Court’s focus is on plaintiff’s specific
circumstances, including her incarceration, that she experienced
during the filing period. See Tripo, 845 F. Supp. 2d at 631; see
also D.D., 61 A.3d at 918. There is no support for plaintiff’s
innuendo that an incarcerated inmate is excused from filing a
Notice of her injury. Further, this is not a situation where
plaintiff was physically incapable of looking after her own affairs
during her incarceration. For instance, plaintiff was able to
discuss her injury and prognosis with her family and friends, even
strategizing about a possible civil suit arising from her injury.
important, and my mom is getting my medical information. So you
got to get Mr. Batt to get this -- maybe get a lawsuit going . .
. .”). Likewise, plaintiff was able to discuss the events leading
up to her January 28, 2016 arrest only five days after the fall.
Id. 13:9-11 (“I was with Wil and Kurt. I went right to Camden, got
some f**king dope, shot it on the way home, got pulled over, got
plaintiff was also able to describe the circumstances surrounding
her fall. Id. 6:19-25 (“Listen to what happened to me. When I came
in, I was real f**ked up and I smacked my head really hard and I
got knocked out unconscious and they had to rush me to the hospital
. . . .”). Plaintiff was even able to assist another inmate during
a phone conversation with John. Id. 44:9-45:18 (“She said thank
you. All you got to do is just tell her to please put money on the
phone for her daughter, okay?”). Therefore, the evidence does not
support plaintiff’s claim that her incarceration prevented her
evidence that she was alert, cogent and attentive during the 93
days she was incarcerated. Accordingly, the Court finds that
plaintiff’s incarceration during the 90-day filing period does not
Inability to Retain Counsel
Plaintiff argues that her misunderstanding as to Mr. Batt’s
role in pursuing a civil claim further supports a finding of
extraordinary circumstances. In support, plaintiff appears to be
making two alternative arguments. In her opening brief, plaintiff
claimed attorney negligence in that Mr. Batt failed to respond to
her attempts to communicate with counsel. Pl.’s Br. at 6. In her
reply, plaintiff attempts to place blame on third parties, i.e.,
her mother and John, for her mistaken belief that they were “taking
actions on her behalf.” Pl.’s Reply at 8-9. Plaintiff’s counsel
clarified plaintiff’s position on this issue at oral argument,
arguing that plaintiff was lulled into inaction due to reassurances
by third parties. See supra n.4. As noted, defendant asserts
extraordinary circumstances. Def.’s Opp’n at 20.
Plaintiff’s attorney’s alleged negligence as an excuse is
rejected out of hand. This is so because it is well-settled that
attorney negligence, inattentiveness or even malpractice is not
sufficiently “extraordinary” to excuse a claimant’s failure to
comply with N.J.S.A. 59:8-9. D.D., 61 A.3d at 922; Rogers v. Cape
May Cty. Office of Pub. Def., 31 A.3d 934, 942 (2011) (“[A]
plaintiff’s ignorance of the ninety-day deadline or counsel’s
Exposition Auth., 670 A.2d 92, 94 (N.J. Super. Ct. App. Div. 1996)
plaintiff’s attorney failed to timely file a Notice because of the
To the extent plaintiff argues she was lulled into inaction
due to her mistaken belief that others were acting on her behalf,
the record contradicts plaintiff’s argument. Plaintiff’s own words
demonstrate that she was “repeatedly questioning whether Mr. Batt
in fact represented her, why nothing was being done, and that John
appears to be misrepresenting his communications with Mr. Batt.”
Pl.’s Reply at 5. Even if plaintiff was in fact under the wrong
impression of Mr. Batt representing her or others acting on her
behalf, it would not be a situation where defendant actively misled
or lulled plaintiff into inaction. See McDade, 32 A.3d at 1132
(rejecting the plaintiff’s equitable estoppel or tolling argument
and noting that in “rare cases, courts have invoked equitable
estoppel to relax the requirements of the Tort Claims Act when the
defendant has misled the plaintiff about a material issue.”); see
also Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005)
(declining to equitably toll the statute of limitations in an
action under the Suits in Admiralty Act, 46 U.S.C. §§ 741, et seq.,
because there was no evidence that the defendant “attempted to
prevent or discourage [the plaintiff] from obtaining legal counsel
by making “affirmative misrepresentations”).
Plaintiff’s inability to retain counsel or obtain sound legal
extraordinary circumstances. See Zois, 670 A.2d at 94. To be sure,
this is not a case where an attorney was retained and due to the
attorney’s fatal illness and related incapacity, the claimant’s
notice was not timely filed. See Beyer v. Sea Bright Borough, 114
A.3d 380, 382-83 (N.J. Super. Ct. App. Div. 2015). Nor is this a
case where an attorney was reasonably confused over the state of
the law regarding the NJTCA’s notice requirement. See Beauchamp,
751 A.2d at 1053 (“Because [the plaintiff] relied on legal advice
that was derived from the confusion surrounding this issue, we
think she deserves to be granted relief from the ninety day filing
requirement of the [NJTCA].”). Accordingly, the Court declines to
find extraordinary circumstances in plaintiff’s alleged mistaken
belief that an attorney was representing her. In fact, plaintiff’s
own words demonstrate she knew an attorney did not represent her.
“totality” of plaintiff’s circumstances to determine if they are
Totality of Circumstances
In determining whether extraordinary circumstances exist the
Court must “consider the collective impact of the circumstances
offered as reasons for the delay.” R.L. v. State-Operated Sch.
Dist., 903 A.2d 1110, 1116 (N.J. Super. Ct. App. Div. 2006)
(citations omitted). This is so because the NJTCA does not define
what constitutes “extraordinary circumstances” leaving that to be
determined by courts on a case-by-by basis. See D.D., 61 A.3d at
916. Even considering plaintiff’s asserted reasons for her delay
in totality, the Court does not find that her circumstances during
the 90-day filing period were extraordinary to justify a late
filing of Notice. In doing so, the Court is mindful of the
legislative intent behind the NJTCA and the 1994 amendment to add
“extraordinary circumstances” language, i.e., that the waiver of
sovereign immunity in enacting the NJTCA is limited. Id. at 91617.
The crux of plaintiff’s argument boils down to: “Ms. Hansen’s
physical condition, combined with her incarceration, actually
restricted her ability to obtain counsel and sound legal advice
for the entire duration of the 90-day Tort Claims Act window.”9
Pl.’s Reply at 9. This assertion is contradicted by plaintiff’s
own words. The Court agrees with defendant that nothing about
plaintiff’s physical and emotional condition—including her injury,
drug/alcohol use and incarceration—prevented her from looking
after her own affairs. For instance, in a phone conversation with
John on March 31, 2017, plaintiff states that she wrote a letter
to the public defender:
Because I was trying to hold off to see if you got
an answer from the public defender, but you didn’t.
To the extent plaintiff relies on Tola v. State, C.A. No.
A-3571-05T2, 2006 WL 3025617, at *1 (N.J. Super. Ct. App. Div.
Oct. 26, 2006), the reliance is misplaced. See Pl.’s Br. at 11. In
Tola, the plaintiff was granted leave to file a late Notice of
Claims based on allegations of extraordinary circumstances
supported by the plaintiff’s affidavit. In particular, it was
undisputed the plaintiff suffered serious incapacitating injuries,
was bedridden for four weeks, and then confined to a wheelchair
and then a walker to get around. Id. at *3. Plaintiff further
certified that due to his physical condition causing him
substantial pain, he was limited to “doing only the bare
necessities of attending to medical appointments to address his
injuries.” Id. The Appellate Division affirmed, finding that
“[g]iven the severity of plaintiff’s injuries and the short period
of time [nineteen days] that elapsed between expiration of the
ninety-day period . . . and plaintiff’s notice,” it was unable to
find reversible error. Id. In the present matter the record is
replete with evidence of plaintiff’s ability to look after her own
affairs beyond “the bare necessities of attending” to her medical
needs. Accordingly, the Court finds that plaintiff’s reliance on
Tola is inapposite.
They won’t give me no information. They said
they’ll have him call me back.
Yeah, and I said f**king they -- they ain’t going
to give me no information, Brooke.
All right. Well, I wrote a letter to them. So I’ll
get the answer back.
Def.’s Ex. H3 Phone Tr. 12:1-10. In light of the evidence that
plaintiff was able to diligently and cogently communicate with the
allegedly suffering the “debilitating effects of her head injury
Likewise, plaintiff’s proffered reason of ineffective counsel
or lack of access to counsel during the 90-day period is not
determinative. This is so because it is clear nothing prevented
plaintiff from communicating with her public defender and others
during the 90-day filing period. Since plaintiff was contemplating
the filing of a civil lawsuit, and she was physically and mentally
able to take care of her affairs, nothing prevented plaintiff from
Accordingly, the Court finds that plaintiff’s proffered reasons of
her “physical condition, combined with her incarceration, actually
advice,” considered in totality, do not constitute extraordinary
circumstances. Having found that plaintiff’s proffered reasons for
her delay do not constitute extraordinary circumstances, the Court
need not discuss whether defendant is substantially prejudiced by
plaintiff’s late notice. 10 In any event, defendant’s prejudice
argument is moot.
In sum, plaintiff has failed to demonstrate that the discovery
rule is applicable to her tort claims under the New Jersey Tort
Claims Act, N.J.S.A. 59:1-1, et seq. Plaintiff has also failed to
emotional condition, and the lack of access to counsel constitute
extraordinary circumstances under N.J.S.A. 59:8-9 when considered
individually or in totality.
O R D E R
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED this 18th day of August 2017, that
plaintiff’s “Motion to File Late Notice of Claim” [Doc. No. 3] is
/s/ Joel Schneider
United States Magistrate Judge
To the extent plaintiff requests additional discovery, the
request is denied. Plaintiff represented she only needed discovery
related to the alleged “substantial prejudice” suffered by
defendant. This issue is moot. Defense counsel conceded there was
no “substantial prejudice” for the purpose of the present motion.
OA Tr. 6:22-25; 25:12-18.
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