90 days from when? NJ Appellate Court clarifies date of accrual for tort claims against a public entity


cars; accident; wreck

By: Carleigh J. Belardo

In Estate of Khiev v. Southern Jersey Transportation Authority, 2024 WL 607735 (N.J. Super. Ct. App. Div. 2024), the New Jersey Appellate Court upheld the trial court’s decision to allow the Plaintiffs to file a late tort-claims notice under the Tort Claims Act, based on a delay in the discovery that a public entity could be responsible for their injuries.  

On December 26, 2021, three members of the Khiev family were killed, and one seriously injured, when their car crashed at the Egg Harbor Toll Plaza located on the Atlantic City Expressway. Approximately ten days later, the estates of the three deceased Khiev family members and the guardian of the sole survivor retained a law firm to investigate the crash. Counsel for the Khiev family requested a police report and video of the crash, but received only a preliminary report, which did not contain a video. Counsel for the Khievs retained two experts to investigate the crash, whose preliminary investigations did not reveal any clear roadway defects. However, after receiving word that a supplemental report of the accident existed, the Khievs renewed their request for the video of the crash and the supplemental report. Despite making that request, the final report was not delivered until May 5, 2022, and the video not until May 11th.  

After reviewing the full investigation and video of the accident, the Khiev family’s experts believed that there was a design defect in the toll plaza that had substantially contributed to the Khievs’ injuries and deaths. Because the date on which the Khievs received this information was after the ninetieth day post-accident, the Khiev family moved for leave to file a late tort-claims notice against the Southern Jersey Transportation Authority (“the Authority”), which was granted on June 24, 2022. The tort-claims notice was filed on June 30th. The Authority filed a motion to vacate the June 24th order and an opposition to the motion for leave. The trial court vacated the June 24th order but upheld the order granting leave to file a late tort-claims notice, explaining that the date of accrual of the Khievs’ claims was May 11, 2022, the date on which they obtained enough information indicating that a public entity may be responsible for the crash. Moreover, there were extraordinary circumstances justifying the late notice, namely that the Khievs’ estates and guardian had exercised due diligence in investigating the accident but could only determine that the Authority was potentially liable when they received the video on May 11th. The Authority appealed.   

The Tort Claims Act requires a Plaintiff to file a claim against a public entity within ninety days of the accrual of the claim. However, the date of accrual is not necessarily the same as the date on which the injuries were sustained. Rather, a claim accrues, and therefore the ninety-day period begins, only when the Plaintiff is in possession of facts that would alert a reasonable person, exercising ordinary diligence, that they were injured due to the fault of another. The appellate court held that, because the Khievs were not in possession of facts indicating that they were injured due to the fault of the Authority until May 11th, the ninety-day period did not begin running until that date. Thus, the Khievs’ tort-claims notice, filed on June 30, 2022, was well within the ninety-day deadline.  

Moreover, the appellate court did not find an abuse of discretion in the trial court’s determination that extraordinary circumstances were present. What constitutes an extraordinary circumstance is inherently imprecise and considered on a case-by-case basis. The trial court’s analysis and final determination that the Khievs’ family members were prompt and diligent in investigating the accident and the fact that they were not provided the final report and video, despite asking, until May 11th, were sufficient to support the decision that extraordinary circumstances were present.  

The decision in this case indicates that the date of accrual can be more fluid than the mere date of injury. Therefore, it is important to note when all evidence that would reasonably alert a Plaintiff that they were injured due to the fault of a public entity is exchanged. Doing so will not only allow one to keep a close eye on the ninety-day deadline for filing but will also prevent extraordinary circumstances from developing that would allow for an extension of said deadline.  

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