Presented by the Public Entity & Civil Rights Litigation Practice Group

Appellate Division Rejects Plaintiff’s Extraordinary Circumstances Explanation under the New Jersey Tort Claims Act

In Anthony v. Newark Housing Authority, A-1618-19T2 (December 31, 2020), the plaintiff was walking within a Newark Housing Authority complex when she tripped, fell and broke her leg. For five months she was unable to work, drive and could not “complete basic tasks of living.”            

Five months after the incident, she consulted an attorney who advised her she could not help her because of “some 90-day rule,” as explained by the plaintiff to the court. Months later, she consulted another attorney, who filed a motion for leave to file late notice of a tort claim pursuant to the New Jersey Tort Claims Act (TCA). The motion was filed ten months after the plaintiff broke her leg. In support of the motion, the plaintiff and her daughter submitted certifications asserting the plaintiff could not work, drive or perform basic tasks of living following surgery. The trial judge granted the motion, finding that the plaintiff had established extraordinary circumstances. The defendant appealed that finding.           

The Appellate Division reversed and analyzed the reasons set forth by the plaintiff to determine if she had satisfied the burden to show extraordinary circumstances as to why she did not file a tort claims notice within 90 days of the incident pursuant to N.J.S.A. 59:8-9. The court must undertake a case-by-case analysis to determine if the injuries were severe and debilitating enough to have a consequential impact on the ability of a claimant to file a notice of claim. D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130 (2013).            

In reversing, the Appellate Division found that a broken leg did not constitute extraordinary circumstances. The plaintiff did not provide any information as to how the injury prevented her from working or what basic task of living she was unable to perform. The plaintiff did not provide to the court any information that she was physically or psychologically unable to seek legal advice within the 90 days. Moreover, the plaintiff failed to submit any medical evidence that she lacked the mental capacity to consult an attorney.

The TCA is a powerful defense for public entities and public employees; in particular, the requirement of a claimant to file within 90 day of an incident. It is important to consult an attorney regarding all available defenses under the TCA if your public entity or your public employee has been sued. Please do not hesitate to contact me to discuss any issue under the TCA. I can be reached at 856-414-6048 or you can email me any question at


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