Estate of Keotepie Khiev v. South Jersey Transportation Authority ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0620-22
ESTATE OF KEOTEPIE KHIEV,
ESTATE OF REACHSIEH KHIEV,1
ESTATE OF REACHTHON
KHIEV, and MICHELLE KHIEV,
Plaintiffs-Respondents,
v.
SOUTH JERSEY
TRANSPORTATION AUTHORITY,
Defendant-Appellant.
_________________________________
Submitted December 11, 2023 – Decided February 14, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1523-22.
Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
LLC, attorneys for appellant (Nicholas A. Sullivan and
Wade Lawrence Dickey, of counsel and on the briefs).
1
Estate of Reachsieh Khiev improperly pled as Estate of Reachthsieh Khiev.
Friedman & Levin Associates and Charles Matthew
Gibbs (McMonagle, Perri, McHugh, Mischak &
Davis), attorneys for respondents (Charles Matthew
Gibbs and Jason David Javie, on the brief).
PER CURIAM
On December 26, 2021, four members of a family were involved in a one-
vehicle accident at a toll plaza on the Atlantic City Expressway. Three of the
family members were killed, and the fourth member, a twelve-year-old girl, was
severely injured. The estates of the decedents and guardian of the survivor
moved to file a late tort-claims notice against the South Jersey Transportation
Authority (defendant or the SJT Authority). Plaintiffs argued that their claims
did not accrue until they received the video of the accident. Alternatively, they
contended that extraordinary circumstances and a lack of prejudice to the public
entity justified the late notice. The trial court agreed and allowed the notice to
be served.
Defendant now appeals from the order granting plaintiffs leave to file a
late tort-claims notice under the Tort Claims Act (the Act), N.J.S.A. 59:1-1 to
59:12-3. Discerning no abuse of discretion in the trial court's decision, we
affirm.
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I.
On December 26, 2021, decedents Keotepie Khiev, Reachsieh Khiev, and
Reachthon Khiev, and plaintiff Michelle Khiev (collectively, plaintiffs) were in
a car that crashed at Egg Harbor Toll Plaza on the Atlantic City Expressway.
Keotepie Khiev, Reachsieh Khiev, and Reachthon Khiev were killed, and
Michelle Khiev was seriously injured. Defendant, the SJT Authority, owns and
operates the Atlantic City Expressway.
On January 4, 2022, plaintiffs, through a family member, contacted and
retained a law firm to investigate the crash. Plaintiffs' counsel then requested
the police report and video of the crash. On January 19, 2022, counsel received
a preliminary police report, but that report did not contain a full investigation or
a video of the accident.
In February 2022, plaintiffs' counsel retained two experts to investigate
the crash. Those experts were Fiocco Engineering, LLC, "experts in highway
safety and traffic engineering," and David B. Roth, an "automotive engineering
expert." Preliminary investigations by both experts did not reveal any obvious
roadway defects.
On March 17, 2022, the New Jersey State Trooper with whom plaintiffs'
counsel had been in contact advised plaintiffs that he had prepared a
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supplemental report and that plaintiffs could now request the complete report,
as well as a video of the crash. Plaintiffs' counsel made that request the same
day. Thereafter, the State Police informed plaintiffs' counsel that they were not
yet ready to release the final report. The final report was then delivered on May
5, 2022, and the video of the accident was delivered on May 11, 2022. In the
meantime, on March 26, 2022, the ninetieth day after December 26, 2021, had
passed.
When plaintiffs' experts reviewed and discussed the video, they
formulated the opinion that there was a design defect in the toll plaza that had
substantially contributed to plaintiffs' deaths and injuries. In that regard, the
experts opined that there was a sloped concrete barrier at the toll plaza, and that
when plaintiffs' vehicle traveled up the slope of the barrier it caused the vehicle
to combust and sustain catastrophic damage, which in turn led to the deaths and
injuries of plaintiffs.
On May 31, 2022, plaintiffs moved for leave to file a late tort-claims
notice on the SJT Authority. Initially, that motion was unopposed, and the court
granted it in an order entered on June 24, 2022. Plaintiffs then filed their tort -
claims notice on defendant on June 30, 2022.
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Thereafter, it was ascertained that defendant had not been properly served
with the notice of motion. Accordingly, defendant filed a motion to vacate the
June 24, 2022 order. It also filed opposition to plaintiffs' motion for leave to
file a late tort-claims notice. After those motions were fully briefed, the trial
court heard oral arguments on the motions.
On September 12, 2022, the trial court entered an order that (1) vacated
the June 24, 2022 order, (2) granted plaintiffs leave to file a late tort-claims
notice, and (3) ruled that the notice would be deemed to have been served on
June 30, 2022. The court supported its rulings with a written opinion.
The trial court found that the date of accrual of plaintiffs' claims was May
11, 2022, when plaintiffs "possessed sufficient information[] that a public entity
may be responsible for the crash," rather than December 26, 2021, the date of
the crash. Accordingly, the trial court held that the notice of claim had been
filed within ninety days of the date of accrual and was timely.
In the alternative, the trial court found that there were extraordinary
circumstances justifying the late notice. In that regard, the trial court found that
plaintiffs had exercised due diligence in investigating the accident but
determined that defendant was potentially liable only when they received the
video. Additionally, the court found that defendant would not suffer any
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substantial prejudice if the late claim was permitted because defendant had been
aware of the accident and evidence and witnesses related to the accident were
still available. The court noted that a toll plaza worker who had been injured in
the accident was still available as a witness. The court also found that the
damaged vehicle had been preserved and defendant had access to the video of
the accident.
Defendant now appeals from the portion of the September 12, 2022 order
allowing plaintiffs to file a late tort-claims notice. Orders granting or denying
motions to extend the time to file a notice of claim under the Act are appealable
to us as of right. See R. 2:2-3(b)(7).
II.
On appeal, defendant makes three arguments. First, it contends that the
trial court misapplied the law in holding that the accrual date was the date
plaintiffs received the video, rather than the date of the crash. Second, defendant
asserts that the trial court abused its discretion in finding that, even if the claim
accrued on the date of the crash, extraordinary circumstances justified allowing
plaintiffs to file a late notice. Finally, defendant argues that the trial court
abused its discretion in finding that there would be no substantial prejudice to
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defendant in granting plaintiffs the right to file a late notice. Having considered
these arguments in light of the record and law, we reject them and affirm.
The decision of whether to grant a plaintiff's motion for leave to file a late
tort-claims notice under the Act is left "to the sound discretion of the trial court."
D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) (quoting
Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)). The trial court's
decision should not be disturbed "in the absence of a showing of an abuse" of
discretion. Ibid. (quoting Lamb, 111 N.J. at 146); see also McDade v. Siazon,
208 N.J. 463, 476-77 (2011). "Although deference will ordinarily be given to
the factual findings that undergird the trial court's decision, the court's
conclusions will be overturned if they were reached under a misconception of
the law." D.D., 213 N.J. at 147 (citing McDade, 208 N.J. at 473-74).
A. The Act.
The Act waives the State's sovereign immunity but does so with certain
requirements and limitations. See N.J.S.A. 59:1-2 (explaining that "public
entities shall only be liable for their negligence within the limitations of " the
Act); see also Nieves v. Off. of the Pub. Def., 241 N.J. 567, 574-75 (2020).
"Generally, immunity for public entities is the rule and liability is the
exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). Accordingly,
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the Act imposes "strict requirements upon litigants seeking to file claims against
public entities." McDade, 208 N.J. at 468.
A person or entity seeking to file a claim under the Act must file a notice
of claim on a public entity "not later than the ninetieth day after accrual of the
cause of action." Ibid. (quoting N.J.S.A. 59:8-8). The failure to serve a notice
of claim within the statutory ninety-day period results in a bar against the claim
and recovery. Id. at 476; N.J.S.A. 59:8-8. There is, however, an exception to
the ninety-day time bar. In limited circumstances, relief can be afforded under
the Act if a claimant moves for leave to file a late notice "within one year after
the accrual of [the] claim." McDade, 208 N.J. at 476 (quoting N.J.S.A. 59:8-9).
The trial court may grant the motion if there are "'sufficient reasons constituting
extraordinary circumstances' for the claimant's failure to timely file" a notice of
claim within the statutory ninety-day period, and if "the public entity [is not]
'substantially prejudiced' thereby." Id. at 477 (quoting N.J.S.A. 59:8-9).
Determining "extraordinary circumstances" and "substantial prejudice"
requires a "trial court to conduct a fact-sensitive analysis of the specific case."
Id. at 478. The Legislature intended the "extraordinary circumstances"
requirement to be a demanding standard. See D.D., 213 N.J. at 148 (citing Lowe
v. Zarghami, 158 N.J. 606, 625 (1999)). When analyzing the facts, a court must
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determine how the evidence relates to the claimant's circumstances during the
ninety-day period. Id. at 151.
In summary, courts evaluate a notice of claim's timeliness using a
"sequential analysis." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). First,
the court must determine the date when the claim accrued. Ibid. Second, the
court determines whether a notice of claim was filed within ninety days of that
date. Ibid. Finally, if the notice was not timely, the court must determine
whether extraordinary circumstances justify a late notice. Id. at 118-19; Bayer
v. Township of Union, 414 N.J. Super. 238, 258 (App. Div. 2010).
B. The Date of Accrual of Plaintiffs' Claims.
The Act does not define the date of accrual of a claim. Ben Elazar v.
Macrietta Cleaners, Inc., 230 N.J. 123, 134 (2017). Nevertheless, our Supreme
Court has held that the accrual of a claim under the Act is to be determined "in
accordance with existing law in the private sector." H.C. Equities, LP v. County
of Union, 247 N.J. 366, 382 (2021) (quoting Beauchamp, 164 N.J. at 116). The
Court has explained:
In general, our law in the private sector holds that a
claim accrues on the date on which the underlying
tortious act occurred. However, that same common law
allows for delay of the legally cognizable date of
accrual when the victim is unaware of his [or her] injury
or does not know that a third party is liable for the
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injury. By 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 [or
her] injury or does not know that a third party is
responsible for the injury.
[Ben Elazar, 230 N.J. at 134 (internal citations
omitted).]
"The test for the application of the discovery rule is 'whether the facts
presented would alert a reasonable person, exercising ordinary diligence, that he
or she was injured due to the fault of another.'" McDade, 208 N.J. at 475(quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). In other words,
the cause of action accrues when the claimant has "two pieces of information
that are the key to the discovery rule, namely an injury and 'facts suggesting that
a third party may be responsible.'" Maher v. County of Mercer, 384 N.J. Super.
182, 188 (App. Div. 2006) (quoting Ayers v. Township of Jackson, 106 N.J.
557, 582 (1987)).
Examining the facts in this record, the trial court determined that
plaintiffs' causes of action accrued on May 11, 2022, when their counsel
received video footage of the crash. In reaching that determination, the court
considered plaintiffs' diligence in retaining counsel, retaining experts, and
seeking evidence concerning the crash, including the final accident report and
video. The court then found that before plaintiffs' experts had an opportunity to
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review and analyze the video, neither plaintiffs nor their experts had reasonable
grounds to believe that the car's combustion was caused by a defect in the
roadway. After viewing and discussing the video, however, the experts opined
that the design of the toll plaza, and in particular the sloped concrete barrier,
substantially contributed to the fire and the combustion of plaintiffs' vehicle.
The key issue in determining whether the discovery rule applied in this
matter is whether there were facts suggesting that the SJT Authority may have
been responsible for plaintiffs' deaths and injuries before May 11, 2022.
Defendant argues that plaintiffs were aware of its involvement in the accident
because they knew that the SJT Authority owned and operated the Atlantic City
Expressway and the toll booths on the Expressway. While plaintiffs knew or
should have known that defendant owned the roadway and toll plaza, the trial
court found that it was only when plaintiffs' experts reviewed and analyzed the
video that they learned that defendant might be responsible for plaintiffs' deaths
and injuries. Those factual findings are supported by substantial, credible
evidence, and we discern no abuse of discretion in the trial court's determination
that plaintiffs' claims accrued for purposes of the notice provision of the Act on
May 11, 2022. Consequently, the trial court also correctly found that the notice
was then timely served on the SJT Authority on June 30, 2022.
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In affirming that determination, we express no opinion on the validity of
plaintiffs' liability theory or their experts' opinions. Those issues are not
currently before us and have not been explored in discovery or analyzed by the
parties and the trial court. We hold only that the factual findings made by the
trial court concerning the accrual date are supported in the record, do not
constitute an abuse of discretion, and are consistent with the law concerning the
discovery rule.
C. Whether There Were Extraordinary Circumstances.
In the alternative, the trial court held that plaintiffs' late notice would be
allowed because it was justified by extraordinary circumstances. What
constitutes "extraordinary circumstances" for purposes of the Act "is inherently
imprecise and must be determined on a case-by-case basis." Jeffrey v. State,
468 N.J. Super. 52, 58 (App. Div. 2021) (citing O'Donnell v. N.J. Tpk. Auth.,
236 N.J. 335, 347 (2019)). "'[A]ny doubts' as to whether extraordinary
circumstances exist 'should be resolved in favor'" of allowing a late filing.
O'Donnell, 236 N.J. at 344 (quoting Feinberg v. State, Dep't of Env't Prot., 137
N.J. 126, 134 (1994)). Courts analyze whether the "totality of unique facts and
circumstances" constitute extraordinary circumstances. Id. at 349. Thus, the
"inquiry focuses on the reasonable diligence of the plaintiff in investigating the
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claim and determining the identity of the tortfeasor." McDade, 208 N.J. at 477.
"The existence of a reasonably prompt and thorough investigation is thus the
crucial inquiry." Id. at 477-78.
In finding extraordinary circumstances in this case, the court carefully
analyzed plaintiffs' actions following the crash. Within two weeks of the fatal
accident, plaintiffs' family members retained lawyers to investigate the matter.
Those lawyers then contacted the State Police and diligently sought the accident
report and related video. Counsel also retained experts in February 2022 , less
than sixty-five days after the accident. On March 17, 2022, plaintiffs' counsel
learned that the final State Police accident report, as well as the video, could be
requested. Plaintiffs' counsel then requested those items that same day. The
State Police, however, took some time approving the final accident report and
releasing the video. Consequently, plaintiffs' counsel received the final accident
report on May 5, 2022, and the video on May 11, 2022. Plaintiffs' counsel then
had the video reviewed and analyzed by the retained experts who, for the first
time, had a basis to opine that defendant could be responsible for the
catastrophic nature of the accident.
Given those facts, we discern no abuse of discretion in the trial court's
determination that plaintiffs acted with due diligence and were prevented from
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serving a timely tort-claims notice by extraordinary circumstances. Indeed, the
facts here are very similar to the facts in Mendez v. S. Jersey Transp. Auth., 416
N.J. Super. 525 (App. Div. 2010). In that case, we affirmed the trial court's
granting of leave to file a late tort-claims notice. Id. at 536. In Mendez, the
plaintiffs lost control of their car, which spun off the road and struck a snow -
removal truck owned by the SJT Authority that was parked on the shoulder. Id.
at 529-30. It was not until the plaintiffs obtained and analyzed a videotape of
the accident that they were able to develop evidence that an ambulance might
have caused plaintiffs to lose control of their car when it suddenly moved in
front of plaintiffs' car just before the accident. Id. at 534. Like defendant here,
the rescue squad that owned the ambulance argued that the plaintiffs in Mendez
should have served a notice as soon as they learned of the potential involvement
of the ambulance. Id. at 532. We rejected that argument, however, and reasoned
that adopting such a position would "encourage whimsical filings of Tort Claims
notices to beat the ninety-day deadline" and that "a diligent attorney [would]
view the videotape firsthand to be able to file a Tort Claims notice in good faith."
Id. at 534-35.
The same analysis that we used in Mendez applies here. In both this case
and Mendez, plaintiffs' attorneys made diligent efforts to obtain video evidence
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of the accident, and the video evidence, once obtained after more than ninety
days from the date of the crash had passed, gave plaintiffs critical information
that allowed them to discover a public entity may be responsible for their
injuries. Id. at 534. So, the trial court did not abuse its discretion in finding
extraordinary circumstances in this case.
D. Whether There is Substantial Prejudice to Defendant.
The final factor that must be considered is whether the SJT Authority has
demonstrated that it will be substantially prejudiced if plaintiffs are allowed to
file a late notice. The public entity bears "the burdens of production and
persuasion on the question of prejudice" in evaluating a motion for leave to file
a late notice. Id. at 535. Determining whether substantial prejudice exists
requires "a fact-sensitive analysis of the specific case." McDade, 208 N.J. at
478. "'Substantial prejudice in this context means substantial prejudice in
maintaining one's defense,' such as 'the loss of witnesses, the loss of evidence,
fading memories, and the like.'" Mendez, 525 N.J. Super. at 535 (quoting Blank
v. City of Elizabeth, 318 N.J. Super. 106, 114-15 (App. Div. 1999)). "The fact
of delay alone does not give rise to the assumption of prejudice; the public entity
must present a factual basis for the claim of substantial prejudice." Id. at 535-
36. Therefore, general allegations of prejudice are not sufficient. Id. at 536.
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Defendant has not demonstrated any prejudice, much less substantial
prejudice. The trial court found that defendant was well-aware of the accident
when it occurred on December 26, 2021. The court also noted that the car had
been preserved, the witnesses to the accident, including a toll plaza worker, were
still available, and defendant had the final accident report and video. Defendant
does not dispute any of those facts. More significantly, those facts establish that
defendant has access to all the information and evidence that was available
ninety days after the accident. Indeed, because of plaintiffs' diligence, the notice
was filed within four months of the ninety-day period. Consequently, we discern
no abuse of discretion in the trial court's finding that there was no substantial
prejudice to defendant.
Affirmed.
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