ANTOINETTE MARRA VS. HOPATCONG SENIOR CENTER (L-0250-18, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0724-18T1
ANTOINETTE MARRA,
Plaintiff-Respondent,
v.
HOPATCONG SENIOR CENTER
and BOROUGH OF HOPATCONG,
Defendants-Appellants,
and
HOPATCONG SENIORS, INC.,
LARRY D. WHITE, COUNTY OF
SUSSEX, and STATE OF NEW
JERSEY,
Defendants.
______________________________
Submitted July 16, 2019 – Decided July 26, 2019
Before Judges Vernoia and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0250-18.
Dorsey & Semrau, LLC, attorneys for appellants (Fred
C. Semrau, of counsel; Edward R. Pasternak, on the
briefs).
Law Offices of James C. De Zao, PA, attorneys for
respondent (James C. De Zao, III, on the brief).
PER CURIAM
Defendants Hopatcong Senior Center and Borough of Hopatcong appeal
from a September 6, 2018 order granting leave to file a late notice of tort claim
on behalf of plaintiff Antoinette Marra and denying their motion to dismiss the
complaint. We reverse.
The relevant facts are as follows. On September 26, 2017, plaintiff tripped
and fell on defendants' property. She suffered a broken arm, fractured hip, and
other injuries. Following her fall, plaintiff had hip replacement surgery. After
the surgery, plaintiff was transferred to a nursing home, where she spent the next
two months recuperating. She was discharged from the nursing home on
November 25, 2017, and began in-home care a few days later.
Plaintiff first sought legal counsel to pursue claims against defendant s in
March 2018. Plaintiff admitted she was unaware of the ninety-day time period
within which to file a notice of tort claim against defendants. Plaintiff
mistakenly believed she had twenty-four months to file a lawsuit.
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On May 18, 2018, plaintiff filed a personal injury complaint and motion
for leave to file a late notice of tort claim. 1 The motion was filed four and one-
half months after the deadline for timely filing a notice of tort claim. 2
In her motion to file a late notice of tort claim, plaintiff alleged she
suffered from various medical conditions, constituting exceptional
circumstances and warranting acceptance of her late notice of claim. Defendants
opposed the motion and filed a cross-motion to dismiss plaintiff's complaint.
After hearing counsels' argument, the judge denied defendants' cross-
motion and granted plaintiff's motion. The judge determined plaintiff suffered
numerous health issues after her hip replacement surgery, precluding her ability
to timely pursue her personal injury claims against defendants.
According to the judge's written statement of reasons, "[p]laintiff has
alleged and the court finds that she was so incapacitated, both physically and
mentally, that she was unable to file a notice within [ninety] days." In support
of his finding of extraordinary circumstances to support the filing of a late notice
of tort claim, the judge explained:
the record reflects that [p]laintiff was diagnosed with
Major Depressive Disorder, was bedridden at all times
1
Plaintiff never served defendants with the notice of tort claim.
2
The ninety-day deadline expired on December 26, 2017.
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except when she was in physical therapy, and could not
function without assistance from the staff. Plaintiff
also had difficulty keeping food down and could not
complete basic tasks of personal hygiene or sitting in a
chair without help. Plaintiff alleges she was unable to
think of anything other than recovering. This is
supported by her diagnosis report, her Assessment, and
her Functional Abilities and Goals Admission record.
Plaintiff had cataract surgery within a few days of the
end of the [ninety]-day period, and she remained
confined to her home for an extended period of time
thereafter . . . [p]laintiff was expected to need home
nursing care for a further eight weeks or more – a period
that extended far beyond the [ninety]-day filing limit.
The court finds these limitations sufficient to qualify as
"extraordinary circumstances."
The judge found defendants "have not proved [they] would be prejudiced
by the filing of a late claim." The judge expressly did not "rely on [p]laintiff's
ignorance of the [ninety]-day deadline to reach [the] conclusion that
extraordinary circumstances exist."
On appeal, defendants argue plaintiff's motion for leave to file a late notice
of tort claim should have been denied because she failed to establish
extraordinary circumstances in accordance with the New Jersey Tort Claims Act
(TCA), N.J.S.A. 59:1–1 to 12–3. Defendants contend plaintiff's medical issues
were not so severe or debilitating as to preclude her filing a timely notice of tort
claim. Because plaintiff failed to demonstrate extraordinary circumstances,
defendants assert their motion to dismiss plaintiff's complaint should have been
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granted. We review an order granting or denying a motion for leave to file a
late notice of claim under the TCA for an abuse of discretion. See D.D. v. Univ.
of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013); see also O'Donnell v.
N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (noting N.J.S.A. 59:8–9 leaves the
determination of whether a late notice may be filed to "the discretion of a judge
of the Superior Court").
The TCA provides "broad but not absolute immunity for all public
entities." Jones v. Morey's Pier, Inc., 230 N.J. 142, 154 (2017) (quoting
Marcinczyk v. N.J. Police Training Comm'n, 203 N.J. 586, 597 (2010)). The
TCA's "guiding principle" is that "immunity from tort liability is the general rule
and liability is the exception." Ibid. (quoting D.D., 213 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).
N.J.S.A. 59:8-3 provides, "[n]o 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. See
also N.J.S.A. 59:8-4 to -7. "A claim relating to a cause of action . . . shall be
presented . . . [no] later than the ninetieth day after accrual of the cause of
action." N.J.S.A. 59:8-8.
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If a plaintiff misses the ninety-day deadline, a notice of claim may be filed
up to a year after the claim accrues, but only if "extraordinary circumstances"
excuse the delay and the public entity would not be "substantially prejudiced."
Lowe v. Zarghami, 158 N.J. 606, 624-25 (1999); see also O'Donnell, 236 N.J.
at 345-46. "The phrase 'extraordinary circumstances' was added to the statute
in 1994" to "raise the bar for the filing of late notice from a 'fairly permissive
standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118
(2000) (quoting Lowe, 158 N.J. at 625). The TCA does not define
"extraordinary circumstances," requiring courts to determine, on a case-by-case
basis, whether "extraordinary circumstances" exist based on the facts presented.
Lowe, 158 N.J. at 626.
In finding "extraordinary circumstances" based on a plaintiff's medical
condition, courts have looked to the "severity of the medical condition and the
consequential impact" on the claimant's ability to pursue a claim. D.D., 213 N.J.
at 150; see also Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 533-35
(App. Div. 2010) (determining plaintiff's injuries and memory loss from a car
accident, requiring weeks in the hospital, constituted extraordinary
circumstances); R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340-41
(App. Div. 2006) (finding extraordinary circumstances where a student, who
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contracted HIV from a teacher, was preoccupied with thoughts of death); Maher
v. Cty. of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (finding
extraordinary circumstances based on plaintiff's induced coma and low
expectation of survival).
Here, plaintiff failed to demonstrate that her medical issues were so
"severe, debilitating, or uncommon" that she was unable to contact an attorney
to pursue her claims against defendants. D.D., 213 N.J. at 150. Plaintiff offered
her certification and the certification of her former daughter-in-law, describing
plaintiff's recovery from her injuries and her depressed mental state during the
recovery period. Nowhere in the record is there any medical evidence from a
physician that plaintiff was physically or mentally unable to contact an attorney
to file a timely notice of claim.
Plaintiff was bedridden from September to November 25, 2017, the date
of her discharge from the nursing home. However, upon her discharge from the
nursing home, plaintiff still had thirty days within which to file a ti mely notice
of claim. There is no evidence in the record that plaintiff was bedridden after
she was discharged from the nursing home. While plaintiff required assistance
with her activities of daily living, she suffered no medical condition so severe
and debilitating as to impact her ability to pursue her personal injury claims.
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Requiring assistance with bathing, dressing, and eating are common after
surgery. Plaintiff's depression during her extended recovery period was not
atypical, and she was treated for her depression. Plaintiff had ample opportunity
after her discharge from the nursing home to seek assistance from her home care
providers or her former daughter-in-law to pursue her personal injury claims in
a timely manner.
Plaintiff states she was on multiple pain medications during the ninety-
day time period for filing a notice of tort claim, implying she was unable to
pursue her claims as a result of these medications. However, there is no
evidence in the record that the medications compromised plaintiff's cognitive
ability. The general descriptions offered by plaintiff of her post-injury pain,
need for assistance with activities of daily living, and resulting depression are
insufficient to qualify as extraordinary medical conditions allowing th e late
filing of a notice of claim. See D.D., 213 N.J. at 150.
The records provided by plaintiff in support of her motion and relied upon
by the motion judge contain self-serving and subjective statements of plaintiff's
pain and depression. The records are devoid of any medical opinion that
plaintiff suffered from a severe or debilitating medical condition that precluded
her ability to seek legal counsel prior to December 26, 2017. Under the
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circumstances, specifically the lack of medical or psychological treatment
records, the judge mistakenly assumed facts regarding plaintiff's condition not
supported by the record to conclude plaintiff demonstrated extraordinary
circumstances justifying the late notice of claim.
Because plaintiff failed to demonstrate extraordinary circumstances, we
reverse the judge's order allowing plaintiff to file a late notice of tort claim. We
remand the matter for the judge to enter an order granting defendants' motion
and dismissing plaintiff's complaint.
Reversed and remanded. We do not retain jurisdiction.
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