SHELIAH WADDELL v. COUNTY OF HUDSON (L-0892-21, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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
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-2661-20
SHELIAH WADDELL, as
administratrix and administratrix
ad prosequendum of the Estate of
BERNARD T. WADDELL, SR.,
and SHELIAH WADDELL,
individually,
Plaintiffs-Respondents,
v.
COUNTY OF HUDSON,
HUDSON COUNTY
CORRECTIONAL CENTER,
RONALD P. EDWARDS,
JONATHAN CASTANEDA,
and THOMAS A. DEGISE,
Defendants-Appellants.
Argued June 7, 2022 – Decided July 21, 2022
Before Judges Currier, DeAlmeida, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0892-21.
James F. Dronzek argued the cause for appellants
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; James F. Dronzek, of counsel and on the
briefs; Kirstin Bohn, on the briefs).
Daniel B. Devinney argued the cause for respondents
(Snyder Sarno D'Aniello Maceri & da Costa, LLC,
attorneys; Paul M. da Costa, Sherry L. Foley, and
Timothy J. Foley, of counsel and on the brief).
PER CURIAM
In March 2020, decedent Bernard Waddell contracted COVID-19 while
working as a corrections officer at the Hudson County Correctional Center. He
died on April 1, 2020. Plaintiffs filed a notice of tort claim required under
N.J.S.A. 59:8-8 in November 2020 and moved for leave to file a late notice in
March 2021. The trial court granted the motion. Because we conclude plaintiffs
did not present extraordinary circumstances to warrant the late filing of a tort
claim notice, we reverse.
Bernard's wife, Sheliah, presented a certification in support of the motion
for leave to file a late tort claim notice. She stated that Bernard's death
certificate, issued April 7, 2020, confirmed he died of viral pneumonia
secondary to COVID-19. She further certified that her son was sick with
COVID-19 from mid-April "until the end of May 2020." And that she was
grieving over the death of her husband during that time period. Sheliah stated
A-2661-20
2
she did not "consider that [her] husband's death [might] have been due to the
fault of another" until some months later. She retained counsel to represent her
in this action in October 2020.
In response to plaintiffs' motion, defendants presented several
certifications. One was from a claims analyst for the third-party administrator
of Hudson County's self-insured workers' compensation program. The claims
analyst certified that the county asked him to open a workers' compensation
claim for Bernard on April 2, 2020. The analyst communicated with Sheliah in
July both by phone and email regarding her husband's compensation claim and
advised her that Bernard's timecard revealed he was exposed to co-workers and
inmates who tested positive for COVID-19. Sheliah received reimbursement for
funeral expenses and dependency benefits as part of the compensation claim.
An employee of the County Finance Department certified she assisted
Sheliah in May 2020 and for several months thereafter, in obtaining several
types of benefits available to the Estate, including the federal Public Safety
Officers' Benefit Program.
In a written decision granting plaintiffs leave to file a late claim, the trial
court stated: "The [c]ourt accepts [Sheliah's] certification, together with the
ongoing public health crisis, to find that [plaintiffs] ha[ve] shown sufficient
A-2661-20
3
reasons for [their] failure to timely file the notice of tort claim." The court
declined defendants' request to hold a Lopez1 hearing, stating it was unnecessary
as "[t]he determinative factors" in finding "sufficient reasons for the late filing"
were "the ongoing health crisis, the death of [Bernard], and [the Waddell's] son
who became ill thereafter."
On appeal, defendants assert the court abused its discretion in finding
extraordinary circumstances existed to permit plaintiffs to file a late notice of
tort claim.
We are mindful that a grant of permission to file a late tort claim notice is
left to the sound discretion of the trial court and will be sustained on appeal
absent the showing of an abuse thereof. McDade v. Siazon, 208 N.J. 463, 476-
77 (2011) (citing Lamb v. Glob. Landfill Reclaiming, 111 N.J. 134, 146 (1988)).
"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. v. Univ. of Med. &
Dentistry of N.J., 213 N.J. 130, 147 (2013) (citing McDade, 208 N.J. at 473-74).
N.J.S.A. 59:8-8 requires a plaintiff to file a notice of claim upon a public
entity "not later than the ninetieth day after accrual of the cause of action."
1
Lopez v. Swyer, 62 N.J. 267, 273-76 (1973).
A-2661-20
4
McDade, 208 N.J. at 468 (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. Plaintiffs' cause of action accrued on
April 1, 2020—the date of Bernard's death. See Iaconianni v. N.J. Tpk. Auth.,
236 N.J. Super. 294, 298 (App. Div. 1989). Plaintiffs do not dispute the accrual
date or that the tort claims notice was filed well after the ninety-day period.
In limited circumstances, relief can be afforded under N.J.S.A. 59:8-9,
which allows a plaintiff to move for leave to file a late notice "within one year
after the accrual of [their] claim." McDade, 208 N.J. at 476. 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" required for a
late filing of claim notice to be a demanding standard. See D.D., 213 N.J. at
147-48 (citing Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999)). A court looks
to the "severity of the medical condition and the consequential impact" on the
A-2661-20
5
claimant's ability to seek redress and pursue a claim. D.D., 213 N.J. at 150.
When analyzing the facts, a court must determine how the evidence relates to
the claimant's circumstances during the ninety-day time period. Id. at 151. See,
e.g., Jeffrey v. State, 468 N.J. Super. 52, 55 (App. Div. 2021) (finding
extraordinary circumstances where the plaintiff was rendered a quadriplegic
after an accident and remained completely disabled and unable to perform even
rudimentary movements); Mendez v. S. Jersey Transp. Auth., 416 N.J. Super.
525, 533-35 (App. Div. 2010) (determining the plaintiff’s injuries and memory
loss sustained in a motor vehicle accident that required weeks of hospitalization
qualified as an extraordinary circumstance); Maher v. Cnty. of Mercer, 384 N.J.
Super. 182, 189-90 (App. Div. 2006) (finding extraordinary circumstances
where the medical condition of a plaintiff, who contracted staph infection, was
so severe that she was treated by an induced coma and not expected to survive).
In contrast to the above-demonstrated extraordinary circumstances,
plaintiffs have not presented any facts to demonstrate a situation so "severe,
debilitating or uncommon" to prevent Sheliah from contacting an attorney and
pursuing a claim. D.D., 213 N.J. at 150. She was not incapacitated, confined
to a hospital, or under a mental impairment as seen in other instances. And
although she certified she was "concentrating" on her son, who also contracted
A-2661-20
6
COVID-19, she did not state he was hospitalized or gravely ill; he recovered
from the illness in May.
In the weeks immediately following Bernard's death, Sheliah
communicated with county employees and workers' compensation claims
representatives regarding potential benefits related to her husband's death. She
was aware Bernard was exposed to COVID-19 while working for the county and
that he died of complications from the disease. Although Sheliah states she was
initially unaware defendants had any legal liability for Bernard's death, our
Supreme Court has rejected knowledge of fault as an excuse for a late tort claim
notice filing. See Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J.
241, 248 (1993).
Although we are sympathetic to Sheliah's loss and the unprecedented
impact of COVID-19, the circumstances here do not meet the required high
threshold to bring a claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-
1 to -12-3. Sheliah's conduct in the ninety days following Bernard's death
confirms she could have contacted an attorney from her home, as she eventually
did. See O'Neill v. City of Newark, 304 N.J. Super. 543, 553-54 (App. Div.
1997).
A-2661-20
7
The trial court misapprehended the applicable law by finding there were
sufficient reasons to warrant the late filing. The statute and applicable caselaw
requires sufficient reasons constituting extraordinary circumstances. Because
plaintiffs cannot demonstrate extraordinary circumstances existed for the
untimely filing of the tort claims notice—222 days after Bernard's death, we are
constrained to reverse the April 27, 2021 order.
Reversed.
A-2661-20
8