NJ Turnpike

After hearing oral arguments Wednesday, the New Jersey Supreme Court is set to decide whether the family of a teacher and his 5-year-old daughter who were killed in a car accident may sue the New Jersey Turnpike Authority even though a tort claims notice was filed with the wrong state agency.

An attorney representing the family asked the court to reinstate the lawsuit, which was dismissed by the Appellate Division in May 2018.

The court will determine if the lawyer’s service of process error amounted to “extraordinary circumstances” sufficient to avoid dismissal based on a late tort claims notice.

“We’re asking the court to prevent a grave injustice and have the case adjudicated on its merits,” said the family’s  attorney, Justin Klein.

The authority’s attorney, Christopher Paldino, urged the court to affirm the Appellate Division.

“There were no extraordinary circumstances,” Paldino said.

The Tort Claims Act requires that plaintiffs suing public agencies give notice within 90 days of an incident that they may be the subject of a negligence lawsuit, but allows a way around the 90-day time bar if “extraordinary circumstances” led to tardiness.

According to the Appellate Division’s decision earlier this year, Timothy O’Donnell, a Jersey City teacher, and his daughter, Bridget, were killed Feb. 22, 2016, at the westbound 14C tolls in Jersey City, when their vehicle was rear-ended by a car driven by defendant Scott Hahn and propelled through the toll plaza. O’Donnell’s sedan was then thrust into the eastbound lanes of traffic, where it was struck by a van owned by CarePoint Health.

The original attorney for Pamela O’Donnell, Timothy O’Donnell’s wife and Bridget’s mother, filed a timely tort claims notice with the state Office of Risk Management—not the Turnpike Authority—on May 16, 2016. It alleged that the authority failed to properly maintain its facilities, leading to the accident.

Pamela O’Donnell retained new counsel, Jacqueline DeCarlo of Middletown’s Hobbie, Corrigan  & DeCarlo, who filed a new tort claims notice with the Turnpike Authority on Sept. 6, 2016—197 days after the accident.

The authority moved to dismiss the case, but a Middlesex County Superior Court judge, citing extraordinary circumstances, denied the motion. The turnpike authority appealed.

The Appellate Division, in reversing, said, “There was no obligation on the state to forward the wrongly filed tort claims notice to defendant.” Judges Clarkson Fisher Jr. and Thomas Sumners Jr. reasoned that the turnpike authority is a quasi-independent agency that is technically not part of the state government.

“And there were no obstacles preventing the first attorney from identifying defendant as the proper entity to be served a tort claim notice for negligent safety and maintenance of the Turnpike,” the panel said in the  per curiam decision. ”We also discern no merit to plaintiff’s extraordinary circumstance argument that the attorney’s mistake was because he primarily practiced outside this state.”

The Supreme Court took up the case in May.

At Wednesday’s arguments, Justice Faustino Fernandez-Vina asked Klein whether the Office of Risk Management had a duty to pass the notice along to the Turnpike Authority.

Klein said no, but added that the notice amounted to one of a series of circumstances that could be considered if there were to be a finding of extraordinary circumstances.

“There was a good faith, but misplaced, effort to comply” with the Tort Claims Act, said Klein, also of Hobbie Corrigan.

Klein added that the Turnpike Authority already was on notice that it was subject to a lawsuit because Hahn, the other motorist involved in the accident, had filed a timely Tort Claims Act notice, and the authority had access to State Police accident reports.

Paldino, of West Orange’s Chiesa Shahinian & Giantomasi, insisted that there were no extraordinary circumstances that justified the late tort claims notice to the turnpike authority.

Justice Barry Albin said the Turnpike Authority should have anticipated that it could face a lawsuit because it knew that two people died, and because of media and police reports. “How was it harmed?” Albin asked, by the late notice.

Paldino said that while the authority could have become aware of the accident by other means, the Legislature made it clear when it enacted the Tort Claims Act that would-be plaintiffs must notify the proper agency when considering whether to file a lawsuit.