The Appellate Division Holds that the Notice Period of the Tort Claims Act for a Parent’s Derivative Tort Claim is Tolled Until the Child Notices their Claim
On January 20, 2022, the Appellate Division in the Estate of Dunmore v. Pleasantville Bd. of Educ., decided an issue of first impression: whether a parent’s tort claims notice for a Portee claim filed ninety-one days after a tragic shooting and eighty-six days after the child’s death was timely. Portee v. Jaffee, 84 N.J. 88 (1980) (referring to a claim for negligent infliction of emotional distress). Borrowing principles from N.J.S.A. 2A:14-2.1, the Appellate Division concluded that the claim was timely.
On November 15, 2019, the respondent, Angela Tennant, and her ten-year-old son, Micah Dunmore, were attending a high school football game at Pleasantville High School when an individual fired a gun into the stands. Micah was struck and subsequently died of his injuries on November 20, 2019. His mother witnessed the events.
On February 14, 2020, ninety-one (91) days after the shooting and eighty-six (86) days after Micah’s death, the Estate, Micah’s mother, and other family members emailed a Notice of Claim to the Pleasantville Board of Education. In addition to the Portee claim, the Notice also asserted claims for wrongful death and survivor claims. However, it was undisputed that the City of Pleasantville was never served with a Notice of Claim, and the plaintiffs’ failed to demonstrate extraordinary circumstances. As a result, the plaintiffs’ Motion for Leave to File a Late Notice of Claim against the City was denied.
The Estate also filed a motion seeking a declaratory judgment that the Notice of Claim regarding the Board was timely. The motion went unopposed, but it was later determined that the Board did not receive the motion before the return date. The Board, therefore, filed a Motion for Reconsideration, arguing that because the Portee claim was filed more than 90 days after the shooting, the claim was not timely.
At oral argument on the Motion, the Board conceded that the wrongful death and survivor claims were timely, as the claims did not accrue until Micah’s death. However, the Board argued that the Portee claim was untimely, as said claim accrued at the time the mother witnessed the events ninety-one (91) days before the Notice of Claim. The trial judge, in a not well-supported decision, determined that the claim was timely, stating, “I’m also satisfied that [the] notice of claim was filed within ninety days or within three months of the date of the accrual of the cause of action.” The Board appealed.
The Appellate Division first addressed the questionable finding noting that “[t]he ninety-day deadline is specific, clear, and unambiguous,” that the judge’s “misapprehension that the ninety-day deadline under N.J.S.A. 59:8-8 to file a tort claims notice” was misguided, and that “[t]here is no doubt that when the Legislature said ninety days it meant ninety days and not three months.” Nevertheless, the Appellate Division affirmed the trial court, but for different reasons.
Instead, the Appellate Division looked to the two-year statute of limitations set forth in N.J.S.A. 2A:14-2 and noted that N.J.S.A. 2A:14-2.1 permitted the tolling of the parent’s claim until the accrual of the injured child’s claim. The Court then stated that while N.J.S.A. 59:8-8 was silent about the tolling of a parent’s claim, the principles underpinning N.J.S.A. 2A:14-2.1 should extend to the Tort Claims Act to promote judicial economy and to prevent harm to the entire controversy doctrine.
Stated bluntly, the Appellate Division determined that to hold otherwise “would result in the absurd situation that the parent’s cause of action would likely be brought before a judge and jury for trial, perhaps years or decades before the child’s lawsuit was initiated” as a minor’s time to file a notice of claim is tolled pursuant to N.J.S.A. 59:8-8 until ninety (90) days after the minor’s 18th birthday. The court also noted that a Portee claim is derivative of the Estate’s claims and that “proof of the child’s cause of action is an essential element of the parent’s cause of action.” Accordingly, the Appellate Division found the Portee claim timely.
The New Jersey Tort Claims Act continues to be a complicated area of the law. Therefore, individuals with claims against the State, County, City, or other governmental entity are well-advised to speak with an experienced New Jersey personal injury attorney.
Conclusion
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