NJ Appeals Court Rules 311 Message Is Sufficient Notice Under TCA

With pothole season underway, New Jersey municipalities should be aware of a recent Appellate Division decision. In Martinez v. City of Hoboken, the Appellate Division held that a plaintiff’s message to the city of Hoboken on the City’s electronic 311 online reporting system regarding an injury she sustained stepping in a pothole was sufficient notice under the Tort Claims Act (TCA). 

Facts of the Case

The plaintiff, Eileen Martinez, fell into a pothole on a street maintained by Hoboken on the morning of March 20, 2018, injuring her foot. That same day, plaintiff messaged the City on the City’s 311 online reporting system. 

Identifying herself by her username, “Eileen623,” plaintiff advised the City of the time, location, cause, nature, and extent of her injury. According to the decision, plaintiff’s written 311 online reporting system message stated:

I would like to address the horrible pothole situation all thru Washington St. put (sic) in particular on the corner of 9th and Washington St. On the morning of March 20th 2019 (sic) at 8:10 [a.m.] crossing the street to catch the bus watching cars turning to make sure [I] didn’t get hit by [a] car[,] my foot went into a pothole and [I] hurt my foot. Had to go to Hoboken University to get it treated. Had to miss a day of school because of this. Something needs to [be] done about the potholes on Washington St[.] [as soon as possible]. I was only allowed to upload [one] picture but have many more. If you need more pictures[,] your (sic) more then (sic) welcome to contact me.

Plaintiff also attached photographs of her injured foot and the pothole to her message, and included a comment with the pothole photograph that stated: “These are the conditions of Washington St[.] all thru Washington St. An[d] due to these conditions that only keeps getting worse [I] suffered left foot injury.” 

Two days after receiving plaintiff’s message, the City sent an email to plaintiff, that acknowledged her submission and assigned a tracking number.

Plaintiff retained counsel  six months after she fell. Her counsel notified the City of plaintiff’s injury and also asked if the City had a specific notice of claim form to proceed with the claim.  

Her attorney also inquired if the City considered plaintiff’s March 20 notice deficient or non-compliant with the TCA and communicated to the City the plaintiff’s position that by submitting information to the City’s 311 online reporting system on March 20, 2018, plaintiff complied with the TCA. 

The City forwarded its official notice of claim form to plaintiff’s counsel. However, it did not advise either the plaintiff or her attorney whether the City deemed the March 20, 2018, 311 online reporting system notice deficient or otherwise non-compliant with the TCA. Thereafter, plaintiff’s counsel submitted the completed official notice of claim form to the City, five days after receipt of the City’s official form, with all the required information.

As plaintiff did not receive a response from the City regarding acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative,  plaintiff also requested permission to file a late notice of tort claim. The City, opposing the motion, maintained that the City “did not receive a tort claim notice from plaintiff until after October 15, 2018 (seven months after the accident).” 

The City further alleged that it was “severely prejudiced in its ability to properly investigate and defend any claim by plaintiff.” 

The City took the position that it “was unable to properly investigate any claim of plaintiff[‘s]” before October 15, 2018, and that the City “could not have an expert opine about any alleged defect at the time of the accident as road conditions significantly change over seven (7) months in the City due to weather, traffic, snow-plowing and the passage of time.” 

Dismissing the City’s arguments, the motion judge determined plaintiff’s March 20, 2018, notice substantially complied with the TCA.

Appellate Division’s Decision

The Appellate Division affirmed the trial court’s determination,  because the Appellate Division was  “satisfied plaintiff provided an acceptable explanation for her failure to strictly comply with the notice of claim requirements of the TCA.”

In reaching its decision, the Appellate Division found that the plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements. It determined that on the facts before it, “the City failed to show prejudice and the plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.”

It wrote:

During the ninety-day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. Plaintiff took steps to comply with the TCA notice of claim and achieved the TCA’s purpose by notifying the City of her injury. Not hearing from the City after its reply to her 311 message, plaintiff retained an attorney. Immediately after being retained, plaintiff’s attorney asked if the City accepted the 311 message as sufficient notice of plaintiff’s claim under the TCA. Although the City never responded to counsel’s inquiry, the City forwarded its specific notice of claim form to plaintiff’s attorney, well after expiration of the TCA’s ninety-day deadline for filing a notice of claim. On October 15, 2018, plaintiff’s counsel filed the “official tort claims act notice form” with the City. There is no dispute that plaintiff provided all the information required in the City’s “official tort claims act notice form.” 

The Appellate Division observed that the TCA’s notice requirements are “not intended as a trap for the unwary” and maintained that “substantial rather than strict compliance with the notice requirements of the [TCA] may satisfactorily meet the statute’s mandates.” It emphasized that “[p]laintiff took steps to comply with the TCA notice of claim and achieved the TCA’s purpose by notifying the City of her injury” and “provided an acceptable explanation for her failure to strictly comply with the notice of claim requirements of the TCA.”

The Appellate Division went on to reject the City’s argument that it was prejudiced by the plaintiff’s alleged failure to provide proper notice about her pothole injury. It explained that “[w]hile the City claims it never received plaintiff’s 311 message, the record does not support that contention. Two days after plaintiff’s 311 message was sent, the City responded to plaintiff and assigned a tracking number,” the court wrote. “Based on the City’s response to plaintiff, we are satisfied that her notice of claim in the 311 message was ‘actually received at … [the] local public entity within the time prescribed for presentation thereof,’ … and therefore the City received timely notice of the claim.” 

It further explained:

Although the City argues it “was unable to immediately and properly investigate the incident of the alleged condition,” the City had the exact street location of the pothole that caused plaintiff’s injury. Based on the information in plaintiff’s 311 message, the City could have inspected the intersection of 9th Street and Washington Street to confirm the condition of the road. There is nothing in the record explaining why, under these circumstances, “the City was unable to properly investigate any claim of plaintiff.” Nor did the City explain why it “could not have an expert opine about any alleged defect at the time of the accident” since plaintiff provided information with the exact location of the pothole on March 20, 2018.

In further support of its decision, the Appellate Division noted that the City failed to alert plaintiff to any deficiencies in her message to the 311 online reporting system. “It did not do so in its March 22, 2018 email reply to plaintiff,” the court wrote. “Nor did the City respond to the inquiry by plaintiff’s counsel to advise whether it deemed the 311 message deficient or non-compliant with the TCA.”

For more information about the court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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