JOHN ESCALANTE VS. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION (L-0617-20, MERCER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3514-19
JOHN ESCALANTE,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY
DEPARTMENT OF
TRANSPORTATION,
SOMERSET COUNTY,
TOWNSHIP OF BEDMINSTER,
Defendants-Respondents,
and
MORRIS COUNTY,
TOWN OF POTTERSVILLE,
TOWNSHIP OF TEWKSBURY,
and TOWNSHIP OF WASHINGTON,
Defendants,
and
HUNTERDON COUNTY,
Defendant-Appellant.
_______________________________
Argued May 5, 2021 – Decided June 3, 2021
Before Judges Fuentes, Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket Number L-0617-20.
James M. McCreedy argued the cause for appellant
Hunterdon County (Wiley Malehorn Sirota & Raynes,
attorneys; James M. McCreedy, of counsel and on the
briefs; Michael J. Skapyak, on the briefs).
Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
Somerset County, join in the brief of appellant
Hunterdon County.
DiFrancesco, Bateman, Kunzman, Davis, Lehrer &
Flaum, PC, attorneys for Bedminster Twp., join in the
brief of appellant Hunterdon County.
Gurbir S. Grewal, Attorney General, attorney for The
State of New Jersey, joins in the brief of appellant
Hunterdon County.
Thomas J. Manzo argued the cause for respondent
(Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Craig J. Hubert, of counsel and on the brief;
Thomas J. Manzo and Reena Pushpangadan, on the
brief).
PER CURIAM
Defendant Hunterdon County appeals from a May 4, 2020 order granting
plaintiff John Escalante's motion for leave to file and serve a late notice of claim
A-3514-19
2
against it and co-defendants, public entities and employees, pursuant to the Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.
I.
The following facts are derived from the motion record. On May 4, 2019,
plaintiff, a forty-nine-year-old United States Marine Corps Master Gunnery
Sergeant, was seriously injured in a bicycle accident during a ninety-mile
bicycling training expedition with his team while traversing the Lamington
River Bridge in Pottersville, which connects Hunterdon and Somerset Counties.
Plaintiff lost control of his bicycle and crashed headfirst into an open metal
grate-type bridge, and suffered a subarachnoid hemorrhage; loss of
consciousness; traumatic brain injury; post-concussion syndrome; maxillofacial
fractures and lacerations; a right-hand fracture; and back, wrist, and knee sprains
and strains. His nose and facial soft tissue were "torn from his face." Plaintiff
described the dangerous condition in his TCA notice of claim as defendant's
negligent maintenance of the bridge and failure to warn of the metal grating on
the bridge.
Plaintiff was transported by ambulance to Morristown Medical Center and
spent four days in the Intensive Care Unit. Within ninety days of the accident,
plaintiff underwent three "extensive" surgeries related to the accident, including
A-3514-19
3
fixation of plates and screws to bones in his skull, interior nasal reconstruction,
rhinoplasty, mandibular fracture repair with wiring, dental bridges, and dental
implants. His jaw was wired shut for ten days following the accident.
Plaintiff was a combat Marine who was deployed to Iraq on three
occasions and is now on reserve status. After witnessing "abominable acts" to
other Marines and civilians in Iraq and being engaged in active combat in "third-
world-country conditions," plaintiff developed post-traumatic stress disorder
(PTSD), which he claims was aggravated by the subject accident. His
exacerbated PTSD symptoms included severe anxiety, flashbacks,
hallucinations, depressive mood, and intense periods of fear.
In his revised affidavit submitted in opposition to defendant's motion,
plaintiff stated he was discharged from Morristown Medical Center on May 9,
2019, and was "barely able to eat, drink or speak properly." He also suffered
from "severe headaches," was instructed not to drive by his surgeon because
plaintiff was recuperating from facial surgery and was taking Percocet for pain
management. Plaintiff's surgeries were performed on multiple dates through and
including January 14, 2020.
It is undisputed that plaintiff did not file a TCA notice within ninety days
of the May 4, 2019 accident, but filed the notice within one year of the incident
A-3514-19
4
on February 11, 2020. By the time the TCA notice was filed, plaintiff had
undergone ten surgeries. On March 20, 2020, plaintiff filed a notice of motion
for leave to file and serve a late notice of claim. In his initial moving affidavit,
plaintiff attested to "experiencing depression, anxiety, insomnia, flashbacks and
hallucinations," and was "advised by [his] doctors to focus on improving [his]
physical and mental health." Plaintiff also represented he "was essentially
confined to [his] bed for surgical recovery and mandatory doctor appointments"
and could not meet with his counsel until February 5, 2020. The TCA notice
was filed six days later on February 11, 2020. Defendant filed opposition to
plaintiff's motion but did not request a plenary hearing.
The trial court scheduled an initial hearing on April 16, 2020, and allowed
all of the parties to supplement the record. In response, plaintiff submitted a
revised affidavit dated April 24, 2020, and an affidavit from Dr. Martin
Weinapple, a board-certified psychiatrist. In his revised affidavit, plaintiff
stated he was unable to drive until "August 6, 2019," when, accompanied by his
wife, he managed to drive a short distance, and that he "withdrew from social
situations following the trauma." Plaintiff claimed he was "unaware of the
ninety[-]day rule for filing a notice of tort claim against a public entity" and
A-3514-19
5
"even if [he] had known, [he] was in no physical or mental condition to seek
legal representation at that time."
Dr. Weinapple certified that at the request of plaintiff's counsel, a one-
hour video-conference interview and evaluation of plaintiff was conducted to
assess whether he "sustained new and/or aggravated preexisting psychiatric
injuries as a result of a May 4, 2019 bicycle accident, and if any such psychiatric
injuries played a role in preventing [him] from seeking legal recourse in the
months after his accident." In his certification, Dr. Weinapple noted he
"personally observed" plaintiff having "cognitive impairment," "distractibility
and impairment of his concentration and attention," indicative of his post -
concussive syndrome. Dr. Weinapple concluded that plaintiff "suffered from
disabling psychiatric and psychological injuries" during the three months
following his accident that "would have prevented him from seeking legal
counsel or initiating any type of recourse within the first three-to-six months
after the accident."
Defendant supplemented the record with public social media information
posted by plaintiff. According to his public Twitter account, plaintiff was
"tweeting" and "retweeting" during the ninety-day timeframe following the
accident, and thereafter, a public Instagram account, veteranwithacamera,
A-3514-19
6
depicted plaintiff dressed in his Marine uniform on June 14, 2019, Flag Day, at
an Army Week Gala. His public Twitter account revealed a picture of plaintiff
attending a military marquee event on October 3, 2019, known as "[New York
City's] Change of Command." Approximately five months after the accident,
plaintiff was in a tagged photo on an Instagram account with a portion of his
nose missing commenting, "Rahhhhh!!!" beneath the post.
In addition, defendant submitted to the trial court a picture found on
Twitter of plaintiff posing with Alex Rodriguez dated November 11, 2019, and
another picture of plaintiff on the set of Fox News on December 2, 2019, after
he appeared on the show. Defendant submitted plaintiff's Twitter feed to the
court, revealing he was frequently engaging with his followers.
On May 4, 2020, the trial court heard oral argument after considering the
supplemental certifications submitted by counsel. The trial court granted
plaintiff's motion for leave to file and serve a late notice of claim under the TCA,
concluding that plaintiff established the requisite reasons constituting
extraordinary circumstances under N.J.S.A. 59:8-9 for his failure to file a timely
notice of claim. In its oral decision following argument, the trial court stated
that plaintiff consulted with an attorney "within a reasonable time" following
the accident after he was able to "reintegrate." The court found plaintiff's
A-3514-19
7
affidavits and Dr. Weinapple's certification constituted "credible evidence," and
"no specific showing of prejudice" was provided by defendant.
The trial court noted that plaintiff made "some progress over six months"
following the accident but he still had symptoms. Further, the court elaborated:
We know that [N.J.S.A.] 59:8-9 does not define
extraordinary circumstances. But the [c]ourt notes that
in common parlance the term would be unique or
unusual, and it's for the courts to determine on a case-
by-case [basis] what constitutes extraordinary
circumstances. That's the Ohlweiler v. Township of
Chatham, 290 N.J. Super. [399,] 404 [(App. Div. 1996)]
[case].
The defendants rely upon the O'Neill [v.] City of
Newark case, 304 N.J. Super. 543 [(App. Div. 1997)].
That case is distinguishable. However, in that case the
plaintiff's only in-patient hospital confinement was
from October 9th to October 16th, this was in 1995,
when he underwent surgery, and prior to that on the
night of the injury he was initially treated only in the
trauma unit and discharged to his home as stable. So,
there is a significant difference in terms of the medical,
the physical injuries, in that case compared to this case.
The [c]ourt noted in O'Neill, quote, "It was the
plaintiff's obligation to seek legal advice as to his
remedies, as long as he is physically and
psychologically capable." [Id. at 553.] And that is the
standard that the [c]ourt looked at.
The [c]ourt further noted the psychologist's
observation that the plaintiff should have received
counseling immediately after the accident does not
mean that he could not function sufficiently to
appreciate the need to seek advice as to possible
A-3514-19
8
liability for the injuries. The [c]ourt in O'Neill noted
that the plaintiff was able to leave his home, [take] trips
to various doctors in the days after the accident, and
neither the plaintiff nor the psychological examination
provided sufficient proof that he did not have the
mental capacity to contact an attorney.
So, that is a far different setting than what I have
here, considering the affidavits and certification from
Dr. Weinapple. Dr. Weinapple specifically addresses
this issue by saying that the May 2019 bicycle accident
was a serious physical, emotional and psychological
trauma, that's superimposed by [plaintiff's] prior
relevant psychiatric history. Not only did the bike
trauma aggravate and exacerbate his PTSD symptoms,
but high anxiety and depression. It brought back
flashbacks and he experienced hallucinations,
(indiscernible) to disabling fear where he needed to
avoid public contact. These serious symptoms were
interwoven with the traumatic injury with post-
concussion syndrome and the physical facial injuries
that require[d] the need of surgery.
Dr. Weinapple further provides [plaintiff]
sustained a severe and disabling psychiatric
exacerbation of his post-traumatic stress disorder as a
result of the bicycle accident, which was only further
intensified by his traumatic brain injury and the
symptoms accompanying that injury.
Dr. Weinapple says that it is his opinion that
[plaintiff] suffered from disabling psychiatric and
psychological injuries during that time, and prevented
him from basic reintegration into [the] public. The
severe limitation endured for some time, and Dr.
Weinapple says that the nature of the psychiatric
symptoms and their effect on [plaintiff] would have
prevented him from seeking legal counsel or initiating
A-3514-19
9
any type of recourse within the first three to six months
after the accident.
In addition, the trial court found there was "no specific showing of prejudice
. . . provided to the [c]ourt." The court granted plaintiff's motion and entered a
memorializing order. This appeal ensued.
On appeal, defendant argues the trial court erred in finding extraordinary
circumstances based on plaintiff's sworn statements and Dr. Weinapple's
certification. Defendant also asserts it is substantially prejudiced by the late
notice of claim because it was deprived of the opportunity to investigate the
matter and to review key evidence—the condition of the bridge shortly after
plaintiff's accident. In the alternative, defendant seeks a reversal and remand to
engage in discovery and to conduct a plenary hearing.
II.
"Pursuant to the express terms of the [TCA], we review a trial court's
application of the extraordinary circumstances exception for abuse of
discretion." O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (citing D.D.
v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013)); accord N.J.S.A.
59:8-9 (assigning the determination as to whether late notice may be filed to
"the discretion of a judge of the Superior Court"). "Generally, we examine 'more
carefully cases in which permission to file a late claim has been denied than
A-3514-19
10
those in which it has been granted, to the end that wherever possible cases may
be heard on their merits. . . .'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999)
(quoting Feinberg v. DEP, 137 N.J. 126, 134 (1994)). Therefore, "any doubts"
as to whether extraordinary circumstances exist "should be resolved in favor of
the application." Ibid. (quoting Feinberg, 137 N.J. at 134).
The TCA "imposes strict requirements upon litigants seeking to file
claims against public entities." McDade v. Siazon, 208 N.J. 463, 468 (2011),
and governs when public entities are liable for their torts. Nieves v. Adolph,
241 N.J. 567, 571 (2020). Chapter eight of the TCA provides that "no action
shall be brought against a public entity or public employee under this act unless
the claim upon which it is based shall have been presented" to the appropriate
public entity in a written notice of claim. N.J.S.A. 59:8-3; see N.J.S.A. 59:8-4
to -7. "A claim relating to a cause of action for death or for injury or damage to
person or to property shall be presented as provided in this chapter not later than
the [ninetieth] day after accrual of the cause of action." N.J.S.A. 59:8-8.
However, "the notice provisions of the [TCA] were not intended as a 'trap for
the unwary.'" Lowe, 158 N.J. at 629 (citation omitted). Thus, the Legislature
provided:
A claimant who fails to file notice of his claim
within 90 days as provided in section 59:8-8 of this act,
A-3514-19
11
may, in the discretion of a judge of the Superior Court,
be permitted to file such notice . . . within one year after
the accrual of his claim provided that the public entity
or the public employee has not been substantially
prejudiced thereby. Application to the court for
permission to file a late notice of claim shall be made
upon motion supported by affidavits based upon
personal knowledge of the affiant showing sufficient
reasons constituting extraordinary circumstances for
his failure to file notice of claim within the period of
time prescribed by section 59:8-8 of this act or to file a
motion seeking leave to file a late notice of claim within
a reasonable time thereafter[.]
[N.J.S.A. 59:8-9 (emphasis added).]
Thus, if a claimant seeks to present a late notice of claim pursuant to the
TCA, "the grant or denial of remedial relief is 'left to the sound discretion of the
trial court, and will be sustained on appeal in the absence of a showing of an
abuse thereof.'" McDade, 208 N.J. at 476-77 (citation omitted). We must adhere
to this standard of review.
"Extraordinary circumstances" became the standard for analyzing late tort
claim notices in 1994 when our Legislature amended the TCA, replacing the
"sufficient reasons" standard, which had been "a fairly permissive standard,"
with the "extraordinary circumstances" standard, a "more demanding" threshold.
Lowe, 158 N.J. at 625; see also D.D, 213 N.J. at 148 (characterizing the 1994
amendment as imposing a "more exacting standard"); Rogers v. Cape May Cnty.
A-3514-19
12
Office of Pub. Def., 208 N.J 414, 428 (2011) (finding that the purpose of the
1994 amendment "was to raise the bar for the filing of a late notice"). To avoid
"excessive or inappropriate exceptions" to the general rule of sovereign
immunity, judges assessing proffered reasons for late tort claim notices must be
"mindful of the Legislature's direction that the proofs demonstrate
circumstances that are not merely sufficient, but that they instead be
extraordinary." D.D., 213 N.J. at 149.
In determining whether extraordinary circumstances justify a delay in
filing the notice of claim, a court must focus on evidence of a plaintiff's situation
during the ninety-day period following the accrual date. See D.D., 213 N.J. at
151. A court "must consider the collective impact of the circumstances offered
as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super.
331, 341 (App. Div. 2006); see also Mendez v. S. Jersey Transp. Auth., 416 N.J.
Super. 525, 533 (App. Div. 2010).
Medical conditions meet the extraordinary circumstances standard if they
are "severe or debilitating" and have a "consequential impact on the claimant's
very ability to pursue redress and attend to the filing of a claim." D.D., 213 N.J.
at 149-50; see also Mendez, 416 N.J. Super. at 533 (noting that "extraordinary
circumstances can be found based on the severity of a party's injuries"). The
A-3514-19
13
question for the judge is whether, when viewed objectively, a severe or
debilitating injury impaired the plaintiff's ability to act during the relevant
ninety-day period. D.D. 213 N.J. at 151. Credibility issues warrant a hearing
so that the trial court can make findings of fact.
In Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 189 (App. Div. 2006),
we found that the "circumstances that led to the delay in filing the notice and
the motion were truly extraordinary." The plaintiff was hospitalized after
receiving a burn, which then caused septic shock, a staph infection, pneumonia,
respiratory failure, and memory loss. Id. at 184-85. The plaintiff was placed in
an induced coma during her first hospitalization, because she was not expected
to live, remained in "extremely poor health," and had repeated admissions to the
hospital within the ninety-day period. Id. at 189-90.
In R.L., the plaintiff was a student who had contracted the Human
Immunodeficiency Virus (HIV) from a sexual relationship with a teacher. 387
N.J. Super. at 334, 341. The delay in filing was due to the plaintiff's
psychological trauma, which caused him emotional distress, periods of crying,
preoccupation with death, and ultimately a hesitancy to reveal his HIV status.
Id. at 341. We held that the plaintiff had established extraordinary
A-3514-19
14
circumstances justifying the late filing of a notice of claim against the school
district because of the "stigma [of HIV] recognized by our courts." Ibid.However, not all medical conditions will meet the extraordinary-
circumstances standard to justify filing a late tort claim notice. In D.D., the
plaintiff claimed to suffer from shock, stress, anxiety, fatigue, depression, the
inability to perform as a public speaker, and overall deterioration of her physical
and mental health resulting from the defendant's disclosure of her confidential
health information in a press release. 213 N.J. at 137-39. The Court found
"there [was] no evidence that these complaints were of sufficient immediate
concern to her or were so significant in nature that she sought medical care to
address them." Id. at 150. The Court stated the record lacked "evidence . . . that
plaintiff was prevented from acting to pursue her complaint or that her ability to
do so was in any way impeded by her medical or emotional state." Id. at 151.
In O'Neill, 304 N.J. Super. at 553-54, we held that a plaintiff preoccupied
with recovery and treatment efforts did not adequately show extraordinary
circumstances to justify a delay in filing a timely notice when he failed to
demonstrate that he had lacked the mental capacity to contact an attorney. The
plaintiff had a bullet wound to his leg, went to the hospital the day of his injury,
lost neurological function to his leg due to nerve damage, had surgery two
A-3514-19
15
months after the shooting, was hospitalized for four days, wore a leg brace all
day, had to use a portable commode for three months, was confined to his home,
and was unable to work for six months. Id. at 546-47. We affirmed the trial
court's denial of the plaintiff's motion for leave to file a late tort claim notice.
"In determining whether a notice of claim under N.J.S.A. 59:8-8 has been
timely filed, a sequential analysis must be undertaken" by the court. Beauchamp
v. Amedio, 164 N.J. 111, 118 (2000).
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.
[Id. at 118-19.]
Typically, a claim accrues at the time of injury. Here, it is undisputed that the
claim accrued on the date of the accident, May 4, 2019, and that plaintiff did not
submit his notice of claim within ninety days of the accrual date. Having
reviewed the record in light of the well-established precedents, we conclude that
the trial court did not abuse its discretion in granting plaintiff's motion.
O'Donnell, 236 N.J. at 344.
A-3514-19
16
Plaintiff's certified notice detailed his extensive physical, psychological,
and psychiatric injuries resulting from the accident, along with "permanent
deformities." We are convinced plaintiff's certified notice, together with his
moving affidavit and revised affidavit, detailed injuries which appear
sufficiently "severe and debilitating" to vault the extraordinary circumstances
standard under N.J.S.A. 59:8-9 and D.D., 213 N.J. at 149. And, plaintiff
submitted medical treatment records to the trial court and the certification of Dr.
Weinapple. Our Court has made clear that a decision to grant or deny leave to
file a notice of claim should be made only after a careful analysis of the
circumstances in each case. Lowe, 158 N.J. at 629.
Here, the trial court had a thorough and sufficient record upon which to
find that plaintiff's injuries prevented him from filing a notice of claim within
the ninety-day time period. D.D., 213 N.J. at 151. We are satisfied that the facts
set forth in the certified submissions by plaintiff and his counsel represent an
extraordinary situation, and no further exploration was required by the trial court
prior to its exercise of discretion under N.J.S.A. 59:8-9. The trial court gave
"proper consideration to the traumatic ramifications of the catastrophic life-
altering injuries plaintiff suffered in this accident." Jeffrey v. State, ___ N.J.
Super. ___ (App. Div. 2021) (slip op. at 8). We conclude that the trial court was
A-3514-19
17
well within its authority to decide plaintiff's motion on the basis of written
submissions, and no genuine issue of material fact warranted a plenary hearing.
Beyer v. Sea Bright Borough, 440 N.J. Super. 424, 432 (App. Div. 2015).
Finally, Hunterdon County contends it would be prejudiced by the filing
of a late notice. Specifically, it argues that "the condition of the bridge as it
existed on the date of [p]laintiff's accident had been altered due to weather
conditions and "it is likely witnesses' memories have faded due to the p assage
of time." The County did not support its arguments with certifications or other
legally competent evidence.
"[I]t is the public entity that has the burden of coming forward and of
persuasion on the question of [substantial] prejudice." Blank v. City of
Elizabeth, 318 N.J. Super. 106, 114 (App. Div. 1999). "The fact of delay alone
does not give rise to the [presumption] of prejudice; the public entity must
present a factual basis for the claim of substantial prejudice." Mendez, 416 N.J.
Super. at 535 (citing Kleinke v. City of Ocean City, 147 N.J. Super. 575, 581
(App. Div. 1977)). "Substantial prejudice must be shown by 'specificity and not
by general allegation[.]'" Id. at 536 (quoting Blank, 318 N.J. Super. at 115). A
contention of a defendant being "totally unaware of the accident" and having
"lost a critical opportunity to engage in timely investigation" is insufficient to
A-3514-19
18
constitute the substantial prejudice requirement under N.J.S.A. 59:8-9. Id. at
535. Substantial prejudice "[g]enerally . . . implies the loss of witnesses, the
loss of evidence, fading memories, and the like." Blank, 318 N.J. Super. at 115.
As the trial court noted, the County did not assert anything to show
substantial prejudice. Moreover, nothing in the record suggests substantial
prejudice would inure to the County or other defendants in the form of missing
evidence or information relating to the accident. Indeed, plaintiff was
transported from the accident scene by ambulance to the hospital. Undoubtedly,
a contemporaneous report was prepared and would have provided the County
and defendants with a recitation of the conditions on the date of the accident and
identified or led to the names of potential witnesses in aid of the County a nd
defendants' defense.
Affirmed.
A-3514-19
19