                                NOT FOR PUBLICATION WITHOUT THE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-0958-17T2

G.Y.,

          Plaintiff-Respondent,

v.

COUNTY OF ATLANTIC,
ATLANTIC COUNTY
CORRECTIONS FACILITY,
and CORRECTIONS OFFICER
ONTARA,

     Defendants-Appellants.
________________________________

                   Submitted October 16, 2018 – Decided December 10, 2018

                   Before Judges Suter and Geiger.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-1349-17.

                   James F. Ferguson, Atlantic County Counsel, attorney
                   for appellants (James T. Dugan, Assistant County
                   Counsel, on the brief).

                   David R. Castellani, attorney for respondent.

PER CURIAM
       Defendant County of Atlantic appeals the order that granted a motion by

plaintiff G.Y. to file a late notice of tort claim under Title 59 for an alleged

sexual assault while she was incarcerated at an Atlantic County facility. 1 We

agree with defendant that the trial court mistakenly exercised its discretion

because the record before it did not demonstrate the "extraordinary

circumstances" required under N.J.S.A. 59:8-9 to file a late notice of tort claim.

Accordingly, we reverse the trial court's order.

       Plaintiff was incarcerated in Atlantic County on a bench warrant issued

for bail forfeiture on pending criminal charges. She was represented on those

charges by a public defender. Plaintiff alleges on October 7, 2016, an Atlantic

County sheriff's officer sexually assaulted her by forcing her "to give him oral

sex in the stairwell of the Atlantic County Justice Facility." She reported this

within forty-eight hours to the sheriff's department internal affairs division, and

received medical treatment at a local hospital including a rape kit. Plaintiff was

transferred to Cape May County Justice Facility on October 11, 2016 where she

alleges she was placed in protective custody. 2 She was released from jail on

January 13, 2017.


1
  Under Rule 2:2-3(a)(3) an order granting or denying a motion to extend time
to file a notice of tort claim is deemed a final judgment for appeal.
2
    Defendant alleges plaintiff was not in protective custody.
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                                        2
      Plaintiff did not file a notice of tort claim while she was incarcerated. She

claims she was not aware she had to file "any other type of [n]otice of [c]laim

or otherwise" about the assault.

      On February 3, 2017, plaintiff retained an attorney, who informed her she

had to file a tort claim notice within ninety days of the assault. In April 2017,

that same attorney wrote to the warden of the Atlantic County facility about

plaintiff's claim, requesting the preservation of any video film of the incident.

He received a tort claims questionnaire in response. In May 2017, plaintiff's

attorney served defendant with a notice of tort claim, but without first obtaining

permission of the court for this late notice. In it, plaintiff claimed her injuries

included "assault, battery, severe emotional distress, mental anguish,

embarrassment, shock, [and] humiliation."

       On June 21, 2017, plaintiff filed a motion to file a late claim. She claimed

            the traumatic nature of this incident, being a sexual
            assault, [her] immediate notification of the incident to
            the Internal Affairs branch of the Atlantic County
            Sheriff's Department, and [her] immediate transfer to
            the Cape May County Justice Facility in protective
            custody under the Prison Rape Enforcement Act all
            constituted extraordinary circumstances and prevented
            [her] from filing a formal Tort Claim Notice within the
            ninety (90) day period.




                                                                           A-0958-17T2
                                        3
She alleged defendant was not substantially prejudiced because defendant was

"immediately notified and had conducted investigations and also interviewed

witnesses, [and a] rape kit was completed . . . ." Defendant opposed the motion.

      The trial court granted plaintiff's motion, finding the facts as we have

related them. The court found exceptional circumstances existed to permit a late

notice because there was no reason plaintiff should have thought to contact her

criminal public defender "regarding what amount[s] to civil damages from

plaintiff's incarceration conditions." Although she may have had access to legal

resources at the county facility, a lay person would not have known about the

statutory ninety-day deadline. Because the alleged assault was by a County staff

member, the court found "understandably" there could "be reason for . . .

hesitance on plaintiff's part to confide in and seek help from staff at the Cape

May facility once she transferred." The court noted the conditions of her

protective custody were not explained and the court could not make "blind

assumptions" about plaintiff's options.       Once released, plaintiff "qu ickly"

contacted an attorney.     The investigation of plaintiff's claim was "timely

instigated." The court found defendant should not be unduly prejudiced by

granting plaintiff permission to file a late tort claim notice.

      On appeal, defendant argues that plaintiff has not alleged nor

demonstrated extraordinary circumstances under N.J.S.A. 59:8-9 to file a late

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                                         4
notice of tort claim. It asserts plaintiff's notice was not filed within a reasonable

time after she learned about the ninety-day deadline, resulting in substantial

prejudice to its defense of her claim. Defendant claims the court abused its

discretion by granting plaintiff's motion to file a late tort claim notice because

it did not comply with the statutory standards under N.J.S.A. 59:8-9.

      We review an order granting permission to file a late tort claim notice

under an abuse of discretion standard and will sustain it on appeal absent a

showing of an abuse thereof. McDade v. Siazon, 208 N.J. 463, 476-77 (2011)

(citing Lamb v. Global 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."

McDade, 208 N.J. at 468 (quoting N.J.S.A. 59:8-8). Claimants "shall be forever

barred from recovering against a public entity" if, among other things, the

claimant "fail[s] to file [the] claim with the public entity within [ninety] days of

accrual of [the] claim except as otherwise provided in N.J.S.A. 59:8-9[.]"

N.J.S.A. 59:8-8(a). "The purpose of the ninety-day deadline is to 'compel a

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                                         5
claimant to expose his intention and information early in the process in order to

permit the public entity to undertake an investigation while witnesses are

available and the facts are fresh.'" D.D., 213 N.J. at 146 (quoting Lutz v. Twp.

of Gloucester, 153 N.J. Super. 461, 466 (App. Div.1977)).

       Under N.J.S.A. 59:8-9, a claimant can file a motion to submit a late notice

of tort claim "within one year after the accrual of the cause of action," 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."

McDade, 208 N.J. at 476-77 (quoting N.J.S.A. 59:8-9). This requires a "fact-

sensitive analysis of the specific case."      Id. at 478.    "The 'extraordinary

circumstances' language was added by amendment in 1994 . . . to 'raise the bar

for the filing of late notice from a fairly permissive standard to a more

demanding one.'" Leidy v. Cty of Ocean, 398 N.J. Super. 449, 456 (App. Div.

2008) (quoting Beauchamp v. Amedio, 164 N.J. 11, 118 (2000)); see D.D., 213

N.J. at 148.    In D.D., 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."

Id. at 151. The court cannot "substitute a lesser standard of proofs for the

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                                        6
extraordinary circumstances demanded by the 1994 amendment to the statute

itself." Id. at 148.

      Ignorance        of   the   ninety-day   requirement   is   not   extraordinary

circumstances. Id. at 156; O'Neil v. City of Newark, 304 N.J. Super. 543, 552

(App. Div. 1997). Nor is the fact that the claimant was not advised of the ninety-

day requirement adequate to find extraordinary circumstances. D.D., 213 N.J.

at 156. Attorney inattention does not constitute extraordinary circumstances.

Ibid. We cannot agree that an attorney's inattention to a file, or even ignorance

of the law, equates with extraordinary circumstances for tort claims purposes.

See Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674 (App. Div.

1996) (observing that attorney inattention might have sufficed under pre -1994

statute but could not meet extraordinary circumstances test).

       D.D. rejected the substantial compliance approach to analyzing whether

to grant a late notice of a tort claim where oral notice was provided. D.D., 213

N.J. at 160-61.        Instead, the court stated "there is no basis to extend the

substantial compliance theory so as to relieve plaintiffs of their obligation to

comply with the statute's requirement that they file a notice, and that it be in

writing." Ibid.

      A late notice of claim is not permitted where the public entity will be

substantially prejudiced. However, "it is the public entity that has the burden of

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                                           7
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 assumption of prejudice; the public

entity must present a factual basis for the claim of substantial prejudice."

Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 535-36 (App. Div.

2010) (citing Kleinke v. City of Ocean City, 147 N.J. Super. 575, 581 (App. Div.

1977).

      In this case, the trial court erred by granting the application to file a late

tort claim notice because the record before it did not show extraordinary

circumstances. Plaintiff's proffered reasons for claiming extraordinary

circumstances were the "traumatic nature of the incident, being a sexual assault,"

that she immediately notified the Sheriff's Department of the incident, and that

she was promptly transferred to the Cape May facility in protective custody. 3

She did not make the claim that her medical or emotional condition was "severe,

debilitating or uncommon." D.D., 213 N.J. at 150. She submitted no medical

or psychological treatment records. She did not allege she was physically,

mentally or emotionally incapable of filing a claim while incarcerated. Plaintiff


3
  Plaintiff alleged this was based on the Prison Rape Elimination Enforcement
Act, 42 U.S.C.A. §§15601 to 15609, transferred to 34 U.S.C.A. §§30301 to
30309. That legislation adopted a zero tolerance standard for incidents of prison
rape. It did not address a requirement of protective custody. See 34 U.S.C.A. §
30302.
                                                                          A-0958-17T2
                                        8
claimed she was in "protective custody," but she did not allege she had a lack of

access to the law library, her public defender or other attorneys. Protective

custody does not restrict the right of an inmate to meet with, talk to, or write to

an attorney. See N.J.A.C. 10A:31-18.6.

      The trial court made factual assumptions that were not supported in the

record. There was no evidence, for instance, that plaintiff claimed she did not

think to contact her criminal public defender or that she was hesitant to confide

in or seek help once she transferred. The trial court simply assumed this was

the case.

      Plaintiff retained an attorney shortly after her release from incarceration.

The tort claim notice was not filed for five more months. There is nothing in

the record to explain that delay.

      Plaintiff alleges a lack of prejudice because she notified the sheriff's

department within forty-eight hours of the incident, she went to the hospital and

a rape kit was administered. However, because there was no notice by her that

she was filing a tort claim, there was no indication there was further

investigation about her claim.

      The trial court mistakenly exercised its discretion by granting this motion

because plaintiff did not show extraordinary circumstances as required under

N.J.S.A. 59:8-9 to file a late notice of tort claim.

                                                                           A-0958-17T2
                                         9
Reversed.




                 A-0958-17T2
            10
