• Update to Filing of Late Notice of Tort Claim
  • April 25, 2019 | Author: Matthew J. Behr
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Cherry Hill Office
  • Recently, the Appellate Division affirmed the granting of a motion to file a late notice of tort claim in the case of Kuczinski v. State of New Jersey, A-3694-17T2 (April 16, 2019). In Kuczinski, the plaintiff was pulled over by a New Jersey State Trooper and was asked to provide her driving credentials. Kuczinski did not have her insurance card, but she had a picture of it on her cell phone. She provided the cell phone to the Trooper, who took it with her other driving credentials, and returned to his car. A later investigation revealed that the Trooper removed some personal information and photographs from the phone and disseminated it without the plaintiff’s consent.

    Six days before the one-year anniversary of the date she was informed of the invasion of her privacy, she submitted a motion to file a late tort claim notice. The trial judge agreed to hold an evidentiary hearing in which the plaintiff would provide testimony to justify the late tort claim notice.

    The plaintiff testified at the hearing that she learned the Trooper obtained and disseminated nude pictures of herself (she had taken the pictures to document her weight loss). She testified that learning of the invasion of her privacy exacerbated her anxiety and depression from an abusive relationship and her best friend’s suicide. She also claimed that her autoimmune ailments and Type 1 diabetes were negatively impacted. These physical and psychological issues caused her to wait nine months to seek legal counsel.

    The Appellate Division affirmed the trial court’s decision that the plaintiff had demonstrated extraordinary circumstances to surmount the requirement to file a notice of tort claim within 90 days. The court further found that the totality of the circumstances warranted the granting of the motion to file a late notice of tort claim since the defendant already was aware of the conduct and had the opportunity to plan for potential liability and correct the underlying condition.

    What is striking in this decision is that no medical evidence from a treating medical professional was necessary. The court held that the trial judge made his own observations about the plaintiff’s testimony and credibility, and how her medical conditions impacted her feeling of helplessness. While every case is fact sensitive, this case is troubling for public entities as to the level of proof necessary to demonstrate extraordinary circumstances to be permitted to file a late notice of claim.