Presented by the Public Entity & Civil Rights Litigation Practice Group

Covid-19 Meets Extraordinary Circumstances Test, Permitting the Filing of a Late Notice of Tort Claim

                Bernard Waddell was an employee of Hudson County, New Jersey, when he was diagnosed with COVID-19 on March 27, 2020. On April 1, 2020, Mr. Waddell passed away. His Estate filed a notice of tort claim in November 2020, three-plus months after the 90-day requirement expired. The Estate then filed a motion to permit the late notice of tort claim after the 90-day period passed but within the one-year statutory period that would have forever barred any claim against the public entity, Hudson County. Because the Estate filed the motion within one year of the accrual of the cause of action, the court had to find that the failure to file a timely notice of tort claim met the extraordinary circumstances standard. The court held that it did.

            The court found that the state of New Jersey declared a state of emergency concerning Coronavirus on March 9, 2020. Thereafter, 11 Omnibus Orders were issued by the New Jersey Supreme Court, adjusting and guiding the judiciary system. Specifically, the court found that the guiding principal has been the judiciary’s goal to accommodate the legitimate needs of parties and the recognition of the “pervasive and severe effects of the COVID-19 public health crises.” The court found that the unprecedented health crisis must be taken into consideration when deciding whether there were sufficient reasons for the Estate’s failure to file the notice of tort claim within the 90 days. 

            In support of the motion to file a late notice of tort claim, Ms. Waddell submitted a certification in support of the motion in which she stated that when her husband died of COVID-19, her son also became ill because of COVID-19 and she had to care for him. She further certified that only later did she suspect that Mr. Waddell’s workplace and the policies of Hudson County were at fault for her late husband’s death. The Law Division judge accepted Ms. Waddell’s certification and granted the motion to permit the Estate to file a late notice of tort claim. 

            The courts generally have been rather strict in interpreting sufficient reasons under the exceptional circumstances standard for permitting the filing of late notices of tort claims. This decision demonstrates that the courts may be more lenient over the next few years in finding exceptional circumstances based on the pandemic in granting plaintiffs’ motions to file late notices of tort claims after the 90-day required period. Each motion must be reviewed thoroughly, and oppositions to such motions must be filed when appropriate. It is important to consult an attorney regarding all available defenses under the Tort Claims Act if your public entity or your public employee has been sued. Please do not hesitate to contact me to discuss any issue under the Tort Claims Act. I can be reached at 856-414-6048, or please email me at


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