                            NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0588-17T3
                                                                  A-0667-17T3

DOUGLAS BATES,

       Plaintiff-Respondent,

v.

TOWNSHIP OF JACKSON,

       Defendant-Appellant,

and

COUNTY OF OCEAN,

       Defendant-Respondent,

and

STATE OF NEW JERSEY,
SCOTT W. ALLERTON,
and LORI ALLERTON,

     Defendants.
_______________________________

DOUGLAS BATES,

       Plaintiff-Respondent,
v.

TOWNSHIP OF JACKSON,

      Defendant-Respondent,

and

COUNTY OF OCEAN,

      Defendant-Appellant,

and

STATE OF NEW JERSEY,
SCOTT W. ALLERTON,
and LORI ALLERTON,

     Defendants.
_______________________________

           Argued October 11, 2018 – Decided October 26, 2018

           Before Judges Reisner and Mawla.

           On appeal from Superior Court of New Jersey, Law
           Division, Ocean County, Docket No. L-1994-17.

           Michael S. Nagurka argued the cause for appellant
           Township of Jackson in A-0588-17 and respondent
           Township of Jackson in A-0667-17 (Gilmore &
           Monahan, PA, attorneys; Michael S. Nagurka, of
           counsel and on the briefs).

           Christopher A. Khatami argued the cause for appellant
           County of Ocean in A-0667-17 and respondent County
           of Ocean in A-0588-17 (Berry Sahradnik Kotzas &

                                                                   A-0588-17T3
                                    2
            Benson, attorneys; Christopher A. Khatami, on the
            briefs).

            Robert R. Fuggi, Jr., argued the cause for respondent
            Douglas Bates (Fuggi Law Firm, PC, attorneys; Robert
            R. Fuggi, Jr., on the briefs).

PER CURIAM

      In these consolidated matters, defendants the County of Ocean and

Township of Jackson appeal from a September 15, 2017 order granting

plaintiff's motion to file a Notice of Late Claim pursuant to the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.

      On the morning of September 14, 2016, plaintiff Douglas Bates was riding

his motorcycle, on North New Prospect Road, near Andover Road, in Jackson

Township. According to plaintiff, he encountered a "dangerous, slippery, and

extremely slick surface," which caused him to lose control of the motorcycle

and collide with another vehicle traveling in the opposite direction. Plaintiff

was transported by ambulance and admitted to Jersey Shore University Medical

Center.

      According to plaintiff's medical records, his injuries included: multiple

fractures of ribs; a dislocated right shoulder; a right knee laceration; first and

second left rib fractures; a right comminuted scapula fracture; two mediastinal

nematomas; C2 dens and posterior ring fracture; stable burst fracture of TS-T6

                                                                          A-0588-17T3
                                        3
vertebra; traumatic pneumothorax; anterior displaced type II dens fracture;

multiple bilateral rib fractures; a displaced associated transv/postfc right

acetabulum; a displaced fracture of seventh cervical vertebra; a displaced

fracture genoid cavity of scapula, right shoulder; a laceration without foreign

body, right knee; an injury of unspecified ithrathoracic organ; multiple spine

fractures, C2, C4, C7, T2, T3, TS; bilateral rib fractures with right

pneumothorax; concussion with a loss of consciousness; and significant

fractures extending from C2 – Cs.

      The motion judge noted plaintiff had several surgeries including:

            Open reduction and internal fixation of a right
            comminuted scapula fracture on September 19; chest
            tube insertion, trauma bay on September 14; posterior
            cervical and thoracic instrumentation on September 16;
            open treatment of fractures, subluxation, multiple
            cervical and thoracic fractures; posterior segmental
            spinal instrumentation C3-4, 5, 6, Tl-2, 3, 4, 6, 7;
            posterior cervical thoracic infusion at C3-4, C4-5, C5-
            6, C6-7, C7-Tl, Tl-T2, T2-T3, T3-T4, T4-T5, T5-T6,
            T6-T7 with allograph.

      Plaintiff was discharged from the hospital on September 22, 2016, and

transferred to Meridian Rehabilitation Center for a short period of time. He was

readmitted to the hospital to treat a surgical wound infection on October 3, 2016,

and had surgical procedures on October 3, 6, and 13, 2016, to treat the infection.



                                                                          A-0588-17T3
                                        4
Plaintiff was discharged again from the hospital on October 13, 2016, and then

returned to the rehabilitation center where he was treated until December 2016.

      According to plaintiff's certification, in October 2016, his girlfriend "of

her own accord" contacted a law firm to represent him regarding the accident.

On October 24, 2016, the firm informed plaintiff's girlfriend it would not

represent plaintiff. The ninety-day accrual period to file plaintiff's TCA notice

expired on December 14, 2016. Plaintiff was unaware of the deadline.

      Plaintiff continued his search for representation.            In early 2017, he

contacted a second attorney seeking representation. In March 2017, the attorney

referred plaintiff to a third law firm. Plaintiff remained unaware of the TCA

notice requirement.

      Plaintiff then contacted his present counsel on June 28, 2017. Counsel

filed a motion for leave to file a late notice of claim on July 12, 2017. In support

of his motion, plaintiff provided his medical records and a certification detailing

the facts we have recited.

      Following oral argument, the motion judge granted plaintiff's motion. The

judge found defendants failed to show they would be substantially prejudiced

by the filing of a late notice of tort claim. The judge concluded plaintiff's

"severe   disabling   and    debilitating       injuries"   constituted   extraordinary


                                                                                A-0588-17T3
                                            5
circumstances and justified the filing of a late notice of claim. This appeal

followed.

                                         I.

      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. 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 conc lusions

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

v. Siazon, 208 N.J. 463, 473-74 (2011)).

                                        II.

      The TCA requires a claimant to serve a notice of claim upon a public

entity "[no] later than the [ninetieth] day after accrual of the cause of action."

N.J.S.A. 59:8-8. "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." 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

                                                                            A-0588-17T3
                                         6
            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 (emphasis added).]

The TCA provides the following procedure allowing claimants to file a notice

of claim beyond the required ninety-day period:

            A claimant who fails to file notice of his claim within
            90 days as provided in section 59:8-8 of this act, may,
            in the discretion of a judge of the Superior Court, be
            permitted to file such notice at any time 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; provided that in no event
            may any suit against a public entity or a public
            employee arising under this act be filed later than two
            years from the time of the accrual of the claim.

            [N.J.S.A. 59:8-9.]

      Therefore, in order to file a late notice of claim a plaintiff must

demonstrate: "(1) 'extraordinary circumstances' for the failure to file a notice of

claim within the ninety-day period following the accrual of a cause of action;


                                                                           A-0588-17T3
                                        7
and (2) proof that 'the public entity . . . has not been substantially prejudiced' by

the late propose notice of claim." Blank v. City of Elizabeth, 318 N.J. Super.

106, 120 (App. Div. 1999) (citing Allen v. Krause, 306 N.J. Super. 448, 455

(App. Div. 1997)).

      Defendants argue the motion judge ignored that plaintiff was searching

for an attorney during the ninety-day period he was in rehabilitation. Defendants

also argue the Supreme Court held in D.D. that an attorney's failure to advise a

client regarding the ninety-day filing period under the TCA was not a basis to

toll the time to file a notice of tort claim.

      Separately, the County argues plaintiff was not hospitalized for the full

initial forty-four day period. The County asserts there was no detail provided in

plaintiff's certification as to why he could not call an attorney while he was in

the hospital.

      As to the second prong, which requires a consideration of the prejudice to

defendants, the Township argues it was prejudiced by the lack of notice of

plaintiff's claim. The County asserts no argument as to the second prong. We

address these arguments in turn.




                                                                             A-0588-17T3
                                           8
                                       A.

      The TCA "does not define what circumstances are to be considered

'extraordinary' and necessarily leaves it for a case-by-case determination as to

whether the reasons given rise to the level of 'extraordinary' on the facts

presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citations omitted).

The finding of extraordinary circumstances is "an imprecise standard" and "each

case will depend on its own circumstances." Id. at 629.

      Our Supreme Court has stated "[p]ublished authority from our Appellate

Division has generally concluded that medical conditions meet the extraordinary

circumstances standard if they are severe or debilitating." D.D., 213 N.J. at 149

(citations omitted). Cases in which medical conditions have been asserted as

proof of extraordinary circumstances have placed an emphasis on "the severity

of the medical condition and the consequential impact on the claimant's very

ability to pursue redress and attend to the filing of the claim." Id. at 150. "[A]

judge 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).

      In Maher v. Cty. of Mercer, 384 N.J. Super. 182, 183 (App. Div. 2006), a

plaintiff was hospitalized after receiving a burn, which then caused septic shock,


                                                                          A-0588-17T3
                                        9
a staph infection, pneumonia, and memory loss. The plaintiff was also placed

in an induced coma during her first hospitalization, because she was not

expected to live, and had repeated admissions to the hospital within the ninety-

day filing period. Id. at 189-90. We found the plaintiff's "circumstances that

led to the delay in filing the notice and the motion were truly extraordinary." Id.

at 189.

      In R.L., we affirmed a decision to permit the late filing of a claim where

the plaintiff was a student who had contracted 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 we noted caused him emotional distress,

periods of crying, preoccupation with death, and ultimately a hesitancy to reveal

his HIV status. Id. at 336. We held plaintiff had established extraordinary

circumstances justifying the late filing a notice of claim against a school district

because of the "stigma [of HIV] recognized by our courts[.]" Id. at 341.

      Not all medical conditions will meet the extraordinary circumstances

standard to justify filing a late tort claim notice. In D.D. a 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 defendant's disclosure of her confidential health information to


                                                                            A-0588-17T3
                                        10
third parties in a press release. 213 N.J. at 138-39. However, 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 there was a lack of "any evidence

in the record 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" and her conditions were "[f]ar from being 'stymied' or even impaired in

her ability to act." Id. at 151.

      The Court held when "engaging in the analysis of extraordinary

circumstances, the court's focus must be directed to the evidence that relates to

plaintiff's circumstances as they were during the ninety-day time period, because

that is the time during which the notice should have been filed." Ibid. (emphasis

added). The Court emphasized the vagueness of plaintiff's certification and

doctor's note describing her symptoms were "not tied to the relevant time

frame," referring to the ninety-day period. Ibid.

      In O'Neill v. City of Newark, 304 N.J. Super. 543, 554 (App. Div. 1997),

we held a plaintiff preoccupied with recovery and treatment efforts did not

sufficiently demonstrate a showing of extraordinary circumstances to justify a

delay in filing a timely notice. We noted:


                                                                         A-0588-17T3
                                      11
            Plaintiff was able to leave his home, as evidenced by
            his trips to various doctors in the days after the
            accident, and neither plaintiff nor the psychological
            examination provides sufficient proof that he did not
            have the mental capacity to contact an attorney. The
            obvious inference is, therefore, that plaintiff could have
            made a trip to an attorney's office or, at least, called one
            on the telephone, especially since his own certification
            does not state any facts to the contrary. His failure to
            contact an attorney cannot in these circumstances be
            said to be the result of extraordinary circumstances.

            [Ibid.]

      Here, the motion judge recited facts from plaintiff's certification, which

included unrebutted assertions regarding the nature and extent of plaintiff's

injuries. Plaintiff's injuries rendered him unconscious and were life threatening.

Plaintiff certified he suffered "a broken neck, a broken back, a broken shoulder,

broken ribs, and broken wrists. [He] also suffered broken hands, a collapsed

lung, several abrasions and bruises, and [an] infection."         The judge noted

plaintiff certified he was confined to a bed "virtually around the clock . . . [and

his] injuries were so severe and life threatening that [he] was not capable of

doing much of anything . . . [and] was told by [his] doctors that additional stress

to [his] body could seriously hinder [his] recovery."         As the judge noted,

defendant certified his transfer to rehabilitation was to "relearn[] how to do some

of life's most basic tasks such as walking." Therefore, according to plaintiff's


                                                                           A-0588-17T3
                                       12
certification, he was unable to contact an attorney to file his claim even while in

rehabilitation during the ninety days following the accident.

      The judge also relied upon plaintiff's medical records and recited the list

of injuries and surgical procedures plaintiff endured, which we have recounted

above. The judge concluded plaintiff had demonstrated "severe[,] disabling and

debilitating injuries and was either in the hospital or in a rehab[ilatation] facility

for a substantial time following the . . . accident that impacted his ability to file

a notice of tort claim by December 13, 2016." The record amply supports the

motion judge's finding of extraordinary circumstances. Plaintiff was in no

condition to seek out counsel himself during the ninety days after the accident.

      Finally, the Township contends it would be prejudiced by the filing of a

late notice. Specifically, it argues it would have made a prompt investigation

and assessment of the roadway if served with a timely notice of claim. The

Township did not support its claim 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, 318 N.J. Super.

at 114.     "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


                                                                              A-0588-17T3
                                         13
substantial prejudice." Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525,

535 (App. Div. 2010) (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 (citing 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

constitute the substantial prejudice requirement under N.J.S.A. 59:8-9. Mendez,

416 N.J. Super. 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 motion judge noted, defendants did not assert a substantial

prejudice in the form of missing evidence or information relating to the accident.

Indeed, a contemporaneous police report was prepared, and would have

provided the Township with a recitation of the conditions on the date of the

accident and identified or led to the identification of potential witnesses in aid

of the Township's defense.

      Affirmed.




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                                       14
