NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0979-24
RACHEL KASUCH,
Plaintiff-Appellant/ Cross-Respondent,
v.
COUNTY OF MIDDLESEX,
Defendant-Respondent/ Cross-Appellant. _________________________
Submitted January 13, 2026 – Decided April 20, 2026
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6363-21.
Curcio Law LLC, attorneys for appellant/cross- respondent (Benjamin C. Curcio and Thomas J. Palma, of counsel and on the briefs).
Kelso & Burgess, attorneys for respondent/cross- appellant (Kurt J. Trinter, on the briefs).
PER CURIAM Plaintiff Rachel Kasuch appeals from the October 25, 2024 Law Division
order granting summary judgment to defendant County of Middlesex after
finding it immune from liability under the Tort Claims Act (TCA), N.J.S.A.
59:1-1 to :12-3, for the injuries she incurred in a bicycling accident on County-
owned property. Defendant cross-appeals from the: (1) November 4, 2022 order
denying without prejudice its motion to dismiss the complaint for plaintiff's
failure to file a notice of claim (NOC) pursuant to the TCA; (2) May 24, 2024
order denying with prejudice its motion to dismiss the complaint based on the
court's finding plaintiff substantially complied with the notice provisions of the
TCA; and (3) June 20, 2024 order denying its motion for reconsideration of the
May 24, 2024 order.
We reverse the May 24, 2024 order because the record does not support
the motion court's conclusion plaintiff substantially complied with the notice
provisions of the TCA, and remand for entry of an order dismissing the
complaint. In light of our decision, we need not address the remaining two
orders on the cross-appeal. Finally, we dismiss the appeal because plaintiff's
substantive claims are barred by her failure to comply with the notice provisions
of the TCA.
A-0979-24 2 I.
On August 26, 2020, plaintiff was riding a bicycle on the Middlesex
County Greenway, a paved walking and biking path owned and operated by
defendant. In the area of the accident, the paved path was approximately twelve-
to sixteen-feet wide with approximately two feet of stone on each side.
At the time plaintiff was cycling, a County employee was assigned to clear
brush from a creek alongside the trail. The employee parked a yellow loader
with a backhoe and front bucket parallel to the creek. One tire of the loader was
on the stone and the other tire was on the paved path. The employee could not
park the loader closer to the creek because the dirt between the stone edge of the
path and the creek was too unstable to support the equipment. The parked loader
partially obstructed the paved path. However, the employee estimated
approximately two feet of straight and level paved path and two feet of stone
were unobstructed where the loader was parked.
The employee extended the loader's two stabilizer legs, which were low
to the ground. The parties dispute the color of the legs. Defendant alleged the
legs were yellow with a small chrome portion that did not extend beyond the
yellow portion of the legs. Plaintiff alleged the legs were yellow but a portion
of the legs were bare chrome and extended beyond the yellow portion. One
A-0979-24 3 extended leg rested on the dirt between the paved path and the creek, and the
other rested on the paved path. According to the employee, he placed cones on
the path and activated the loader's four white lights, four hazard lights, and
rooftop beacon light. The headlights and taillights of the loader were also
illuminated.
According to plaintiff, as she approached on her bicycle, she saw the
stationary yellow loader, but did not see the chrome portion of the stabilizer leg
extending onto the paved path. Plaintiff could not estimate her distance from
the loader when she first saw it, or how much time passed from her first noticing
the loader to the accident. However, she acknowledged she saw the equipment
in enough time to think about whether she should stop or attempt to maneuver
around the equipment. Seeing people on the opposite side of the loader, plaintiff
assumed she could ride past it on her bicycle. She denied any cones or other
warning devices were present near the loader or its extended leg, and alleges the
loader's lights were not illuminated.
According to plaintiff, as she passed the loader while riding on the paved
path, a pedal of her bicycle caught on the extended stabilizer leg. The contact
caused plaintiff to fall over the handlebars of her bicycle to the ground. She
alleged she sustained significant physical injuries from the fall. A Metuchen
A-0979-24 4 police officer responded to the scene, and emergency medical technicians
transported plaintiff to a hospital for treatment.
According to the employee, he saw plaintiff approach the loader on her
bicycle. He claims he made eye contact with plaintiff, stood up and out of the
cab of the loader, pointed to the stabilizer leg, and warned her to go around the
leg. The employee stated plaintiff nodded as if she understood his warning. He
saw plaintiff's operation of the bicycle become shaky as they communicated, as
if she was losing control of the bicycle. The employee witnessed the accident
and assisted plaintiff after her fall.
Richard Crooks was a Claims Technical Specialist with Inservco
Insurance Services, Inc. (Inservco), defendant's third-party insurance
administrator at the time of the accident. On September 3, 2020, Crooks learned
of the accident when he received from a County employee a copy of: (1) an
August 26, 2020 operations report prepared by a County employee, which stated
that "[a] female bike rider (name unknown)" struck a County-owned loader
while riding a bicycle on the Greenway in Metuchen and suffered a cut chin and
dizziness, and the operator of the loader stated all of its safety lights were on at
the time of the accident; and (2) an August 28, 2020 operations report prepared
A-0979-24 5 by a County employee that referenced the accident and identified plaintiff by
name, address, and driver's license number.
Crooks subsequently received a copy of a Metuchen police report that
included plaintiff's name, address, birthday, and home telephone number. In the
report, the officer wrote, in relevant part:
Kasuch stated she was riding her bike going [northbound] when she lost her footing on the peddle [(sic)] and clipped the back of the construction equipment. Kasuch stated she flipped off the bike and landed on her head/face. I was able to notice the gash on her chin due to the fall.
On September 10, 2020, Crooks sent two letters to plaintiff. The first,
entitled "receipt of claim acknowledgment," included a claim number and stated,
"Type of Claim: General Liability." The letter provided: "We acknowledge
receipt of the above captioned claim which is being handled by the undersigned.
Please refer to the above claim number for all future correspondence. Thank
you." The second letter requested plaintiff provide her social security number,
gender, and date of birth for defendant to keep on file to comply with a federal
statute concerning Medicare. Crooks included a form for reporting the requested
information with the second letter.
A-0979-24 6 On September 23, 2020, plaintiff left a voice message on Crooks's
telephone acknowledging receipt of the letters but denying knowledge of why
she received them.
On September 24, 2020, plaintiff and Crooks spoke on the telephone.
After the conversation, Crooks believed plaintiff was angry he requested her
personal information. Plaintiff told Crooks she was considering hiring an
attorney and denied she told the police officer the accident was caused when she
lost her footing on the pedal of her bicycle. Plaintiff informed Crooks she would
not complete the form, which she later returned blank.
On October 12, 2020, Crooks received a letter from an attorney stating
she represented plaintiff. The letter, which included the claim number generated
by Crooks, provided, in relevant part:
Please be advised, this office has been retained to represent [plaintiff] with regard to injuries she sustained as a result of a bicycle accident which occurred on the above date. For your convenience a copy of the police report is enclosed hereto (sic). In that regard, kindly forward all future correspondence to our office.
Please do not hesitate to contact my office, should you have any questions or concerns.
The letter identified the "[d]ate of [l]oss" as August 27, 2020, the day after the
accident. The enclosed report was the police report already in Crooks's
A-0979-24 7 possession. The letter did not describe plaintiff's injuries, demand a specified
amount of damages, or set forth a theory of defendant's liability for plaintiff's
injuries.
On December 9, 2020, Crooks, having not received an NOC from plaintiff,
closed his file.
On February 17, 2021, Crooks received a call from the attorney who wrote
the October 12, 2020 letter. She asked if he received plaintiff's NOC. Crooks
responded he had not received an NOC from plaintiff. The attorney replied she
"would look into it" but never again contacted Crooks.
In response to that conversation, Crooks sent the attorney a letter dated
February 17, 2021, which referred to plaintiff by name, included the claim
number he previously assigned to the matter, identified the date of loss as August
27, 2020, and stated, in relevant part:
Please be advised that INSERVCO is the Third Party Administrator for the County . . . and handles all claims asserted against this public entity, and its member entities, under the [TCA].
The investigation into the above listed matter is now concluded. The investigation indicates that there is no legal liability on the part of the County or any of its . . . employees. Specifically, the investigating police officer's report quotes your client as saying that she collided with the piece of equipment because her foot slipped off her bicycle pedal.
A-0979-24 8 Accordingly, your client's claim is denied and no voluntary payments will be made.
Please do not hesitate to contact the undersigned regarding same should you have any questions. Should litigation be filed in this matter naming [the] County . . . or employees as defendants the funds of the public will be utilized in defense of same and recovery of all costs and fees will be sought via Court Order.
On November 2, 2021, plaintiff filed a complaint in the Law Division
against defendant seeking damages for the injuries she allegedly suffered in the
bicycle accident. Plaintiff alleged defendant was negligent in its maintenance
and operation of its property, which she described as "a municipal park."
Plaintiff alleged, among other things, defendant permitted a dangerous condition
to exist on its property, which caused the accident and her injuries, and failed to
warn the public of the dangerous condition. The complaint also alleged plaintiff
filed an NOC on or about November 13, 2020, but did not identify the entity
with which the NOC was filed.
On May 23, 2022, in response to defendant's discovery demand, plaintiff
produced an NOC dated November 13, 2020, which her counsel alleged was
filed with the New Jersey Department of Treasury. The NOC, a preprinted State
form with the address of a State office, described the location of the bicycle
accident as "Middlesex County Greenway" and "Middlesex Greenway
A-0979-24 9 Parkway." In addition, the NOC stated a copy of the police officer's report
concerning plaintiff's accident was attached. In the NOC, in response to the
direction, "STATE THE NAMES AND ADDRESSES OF EACH STATE
AGENCY OR AGENCIES AND EACH STATE EMPLOYEE WHOM YOU
CLAIM CAUSED YOUR DAMAGES OR INJURIES," plaintiff's counsel
entered: "MIDDLESEX COUNTY, MIDDLESEX COUNTY GREENWAY,
NAME OF THE CONSTRUCTION COMPANY (NAME UNKNOWN AT
THIS TIME)." Plaintiff did not produce evidence establishing she filed the NOC
with the State or defendant.
On October 7, 2022, defendant moved for summary judgment seeking
dismissal of the complaint for plaintiff's failure to file an NOC with the County.
Plaintiff opposed the motion, arguing she substantially complied with the notice
provisions of the TCA by filing an NOC with the State and sending the October
12, 2020 letter to Crooks.
On November 4, 2022, the court issued an oral decision denying the
motion without prejudice. The court concluded the record was unclear whether
Crooks received the November 13, 2020 NOC plaintiff alleged to have filed with
the State, and, if so, when. The court granted the parties leave to conduct
discovery, including depositions, addressing whether Crooks or defendant came
A-0979-24 10 into possession of the November 13, 2020 NOC. A November 4, 2022 order
memorialized the court's decision.1
On March 28, 2024, defendant again moved for summary judgment
seeking dismissal of the complaint for plaintiff's failure to file an NOC with the
County. In support of its argument, defendant submitted Crooks's affidavit
stating he never received the November 13, 2020 NOC from plaintiff or her
attorney. Plaintiff opposed the motion, arguing the State must have forwarded
the NOC to Crooks because his February 17, 2021 letter, which cites the TCA,
indicates an investigation of the accident was conducted and plaintiff's claim
was rejected. Alternatively, plaintiff argued she substantially complied with the
notice provisions of the TCA when she sent Crooks the October 12, 2020 letter.
On May 24, 2024, the court issued an oral decision denying defendant's
motion. The court found:
[H]ere, there appears to be substantial compliance in that the County had notice, the county had notice of an injury, the County had notice of a location, the county had notice that an instrumentality, it was something owned by the County, may have been involved in the accident.
The . . . February 17[,] 2021 letter appears to confirm that an investigation was done, which is [the] primary purpose of the notice of tort claim [to] put a
1 Although the court permitted plaintiff to depose Crooks, she did not do so. A-0979-24 11 government entity on notice, so they can review the claim and make a decision, which way they're going to respond to the claim.
A May 24, 2024 order memorialized the court's decision.
On June 3, 2024, defendant moved for reconsideration of the May 24,
2024 order. Defendant argued plaintiff did not substantially comply with the
TCA notice provisions because she did not notify defendant of the extent of her
injuries and claimed damages, or a theory of defendant's liability within ninety
days of the accrual of her claim. Plaintiff opposed the motion.
On June 20, 2024, the court issued an oral decision denying the motion.
The court found defendant made no convincing argument it erred when it found
plaintiff substantially complied with the TCA notice requirements. A June 20,
2024 order memorialized the court's decision.
On August 30, 2024, defendant moved for summary judgment, arguing it
was immune from liability under the TCA. Defendant argued plaintiff did not
establish her injuries were caused by a dangerous condition of public property
or that defendant acted in a palpably unreasonable manner in not protecting
against the condition pursuant to N.J.S.A. 59:4-2, or failed to warn of a
dangerous condition of public property endangering the safe movement of
traffic, N.J.S.A. 59:4-4. Plaintiff opposed the motion.
A-0979-24 12 On October 25, 2024, the court issued an oral decision granting
defendant's motion. The court found the temporary parking of a loader along
the paved path to remove debris from the creek was not a dangerous condition
and the County did not act in a palpably unreasonable manner in failing to
protect against a dangerous condition. The court also found plaintiff did not act
with due care when she encountered the loader, which she admitted was
stationary when she attempted to pass. The court found a reasonably prudent
person operating a bicycle could have avoided collision with the loader. An
October 25, 2024 order memorialized the court's decision. Plaintiff's appeal
from the October 25, 2024 order followed.
Plaintiff argues the motion court erred when it: (1) resolved disputed
issues of material fact; (2) did not consider the undisputed facts in a light most
favorable to her; (3) found defendant's placement of the loader did not constitute
a dangerous condition; and (4) concluded defendant did not act in a palpably
unreasonable manner.
Defendant subsequently cross-appealed from the November 4, 2022, May
5, 2024, and June 20, 2024 orders. Defendant argues the motion court erred
because "the minimal information" in the October 12, 2020 letter was
A-0979-24 13 insufficient to constitute substantial compliance with the notice provisions of
the TCA.
II.
We begin with defendant's cross-appeal of the May 24, 2024 order because
plaintiff's compliance with the notice provisions of the TCA is a statutory
predicate to consideration of her substantive claims. We review a grant of
summary judgment de novo, applying the same standard as the motion court.
Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That standard requires us to
"determine whether 'the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law.'" Branch v. Cream-O-Land
Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). "Summary judgment
should be granted . . . 'against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial.'" Friedman v. Martinez, 242 N.J.
449, 472 (2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
We do not defer to the motion court's legal analysis or statutory interpretation.
A-0979-24 14 RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Perez v.
Zagami, LLC, 218 N.J. 202, 209 (2014).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun
Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005), app. dism., 217 N.J. 591
(2006)). We review the record "based on our consideration of the evidence in
the light most favorable to the parties opposing summary judgment." Brill v.
Guardian Life Ins. Co., 142 N.J. 520, 523-24 (1995).
The TCA modifies the doctrine of sovereign immunity and establishes the
parameters within which an injured party may recover for the tortious acts of
public entities and employees. Feinberg v. Dep't of Envt'l Prot., 137 N.J. 126,
133 (1994). The statute's "guiding principle" is "that immunity from tort
liability is the general rule and liability is the exception." D.D. v. Univ. of Med.
& Dentistry of N.J., 213 N.J. 130, 134 (2013) (quoting Coyne v. State Dep't of
Transp., 182 N.J. 481, 488 (2005)). The Act, therefore, "imposes strict
A-0979-24 15 requirements upon litigants seeking to file claims against public entities."
McDade v. Siazon, 208 N.J. 463, 468 (2011).
"Among the most important limitations that the [TCA] imposes on would-
be claimants are . . . the statutory provisions that govern a claimant's obligation
to file [an NOC] as a prerequisite to initiating litigation." D.D., 213 N.J. at 134.
Subject to exceptions not applicable here, "[n]o action shall be brought against
a public entity . . . under this act unless the claim upon which it is based shall
have been presented in accordance with the procedure set forth in" the TCA.
N.J.S.A. 59:8-3. Prior to initiating suit, a claimant must file with the public
entity an NOC that "shall include":
a. The name and post office address of the claimant;
b. The post-office address to which the person presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
A-0979-24 16 f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
[N.J.S.A. 59:8-4.]
The NOC must be signed by the claimant or a person acting on the
claimant's behalf. N.J.S.A. 59:8-5. Given the statutory signature requirement,
the NOC must be in writing. D.D., 213 N.J. at 159-60.
In addition, the NOC must be filed with the entity the claimant alleges is
responsible for the claim.
A claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission. A claim for injury or damages arising under this act against a local public entity shall be filed with that entity.
[N.J.S.A. 59:8-7.]
"A claim may be presented to a local public entity by delivering it or mailing it
certified mail to the entity." N.J.S.A. 59:8-10(a).
Finally,
[a] claim relating to a cause of action . . . for injury or damage to person or to property shall be presented . . . not later than the 90th day after accrual of the cause of
A-0979-24 17 action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:
a. The claimant failed to file the claim with the public entity within 90 days of accrual of the claim except as otherwise provided in [N.J.S.A.] 59:8-9 . . . .
[N.J.S.A. 59:8-8(a).]
The TCA's notice provisions are not "a trap for the unwary." Lowe v.
Zarghami, 158 N.J. 606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super.
360, 365 (Law. Div. 1991)). The timely filing of an NOC with the correct entity
is intended to advance several purposes:
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit;
(2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense;
(3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and
(4) to inform the [entity] in advance as to the indebtedness or liability that it may be expected to meet.
[McDade, 208 N.J. at 475-76 (internal quotations omitted) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]
A-0979-24 18 As the Supreme Court explained,
[W]hen it enacted the [TCA's NOC] provisions, "the Legislature sought to afford to public entities an 'opportunity to plan for potential liability and correct the underlying condition.'" O'Donnell v. N.J. [Tpk.] Auth., 236 N.J. 335, 345 (2019) (quoting Jones v. Morey's Pier, Inc., 230 N.J. 142, 155 (2017)). Those provisions "compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh." Gomes v. [Cnty.] of Monmouth, 444 N.J. Super. 479, 488 (App. Div. 2016) (quoting O'Neill v. City of Newark, 304 N.J. Super. 543, 549 (App. Div. 1997)).
[H.C. Equities, LP v. Cnty. of Union, 247 N.J. 366, 384 (2021).]
"Ascertaining the timeliness of a [TCA] notice requires a simple, three -
step sequential analysis that never changes." McNellis-Wallace v. Hoffman,
464 N.J. Super. 409, 416 (App. Div. 2020) (citing Beauchamp, 164 N.J. at 118).
"The first step is to determine when the cause of action accrued in accordance
with N.J.S.A. 59:8-1." Ibid. (citing Beauchamp, 164 N.J. at 118). "The
discovery rule is part and parcel of such an inquiry because it can toll the date
of accrual." Ibid. (quoting Beauchamp, 164 N.J. at 118). "Once the date of
accrual is ascertained, one can proceed to the second step, which 'is to determine
whether a notice of claim was filed within ninety days' as required by N.J.S.A.
59:8-8." Ibid. (quoting Beauchamp, 164 N.J. at 118). "'If not, the third task is
A-0979-24 19 to decide whether extraordinary circumstances exist justifying a late notice'
under N.J.S.A. 59:8-9." Ibid. (quoting Beauchamp, 164 N.J. at 118-19).2
We begin with a determination of the date on which plaintiff's claims
accrued. "Accrual shall mean the date on which the claim accrued . . . ."
N.J.S.A. 59:8-1. A claim accrues under the TCA "on the date of the accident or
incident that gives rise to any injury, however slight, that would be actionable if
inflicted by a private citizen." Beauchamp, 164 N.J. at 123. There is no dispute
plaintiff's claims accrued on August 26, 2020.
Ninety days from August 26, 2020, was November 24, 2020. Plaintiff
produced no evidence she filed an NOC with defendant on or before November
24, 2020, or at any other time. The November 13, 2020 NOC in the record was
addressed to the State Department of Treasury. Assuming plaintiff's counsel
filed the NOC with the State, which defendant disputes, such filing would not
constitute filing the NOC with defendant. The NOC "must 'be filed directly with
the specific local entity at issue.'" O'Donnell, 236 N.J. at 345 (quoting McDade,
208 N.J. at 476). The November 13, 2020 NOC did not satisfy plaintiff's notice
obligations under the TCA.
2 Plaintiff did not move for leave to file a late NOC under N.J.S.A. 59:8-9. We do not, therefore, consider the third step of the McNellis-Wallace analytic framework. A-0979-24 20 The only written communication in the record from plaintiff or her
counsel to defendant between August 26, 2020, and November 24, 2020, was
the October 12, 2020 letter of plaintiff's counsel to Crooks, who act ed as
defendant's agent. Enclosed with the letter was a copy of the police officer's
report already in Crooks's possession. The motion court found plaintiff
substantially complied with the notice provisions of the TCA when her counsel
sent the October 12, 2020 letter. We disagree.
To prevent technical defects from barring legitimate claims, courts have
applied the equitable doctrine of "substantial compliance" to determine if a
purported NOC satisfied the notice requirements of the TCA. See D.D., 213
N.J. at 159-60; Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009).
"[S]ubstantial compliance means that the notice has been given in a way, which
though technically defective, substantially satisfies the purposes for which
notices of claims are required." Lebron, 407 N.J. Super. at 216 (quoting Lameiro
v. W. N.Y. Bd. of Educ., 136 N.J. Super. 585, 588 (Law. Div. 1975)).
Substantial compliance is an equitable doctrine used "to avoid the harsh
consequences that flow from technically inadequate actions that nonetheless
meet a statute's underlying purpose." Galik v. Clara Maass Med. Ctr., 167 N.J.
341, 352 (2001). Parties seeking to apply the substantial-compliance doctrine
A-0979-24 21 must demonstrate they took "a series of steps . . . to comply with the statute
involved," id. at 353 (quoting Bernstein v. Bd. of Trs. of Tchr's Pension &
Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977)), and "those steps
achieved the statute's purpose, as for example, providing notice," Cnty. of
Hudson v. State, Dep't of Corr., 208 N.J. 1, 22 (2011). Substantial compliance
applies only if the other party is not prejudiced and there is "a reasonable
explanation why there was not a strict compliance with the statute." Galik, 167
N.J. at 353 (quoting Bernstein, 151 N.J. Super. at 76-77).
Application of the substantial-compliance doctrine in the tort-claim
context "has been limited carefully to those situations in which the notice,
although both timely and in writing, had technical deficiencies that did not
deprive the public entity of the effective notice contemplated by the statute."
D.D., 213 N.J. at 159. "[W]e review de novo . . . whether the doctrine of
substantial compliance applies to preserve" a claim. H.C. Equities, 247 N.J. at
381.
A comparison of the information in the October 12, 2020 letter to the
information required in N.J.S.A. 59:8-4 guides our analysis. Subsection (a) of
the statute requires the NOC include "[t]he name and post office address of the
claimant." N.J.S.A. 59:8-4(a). The October 12, 2020 letter states plaintiff's
A-0979-24 22 name, but not her post office address. However, the police report enclosed with
the letter included plaintiff's address. See Able v. City of Atl. City, 228 N.J.
Super. 360, 365-67 (App. Div. 1988) (holding an NOC stating the wrong date
of an accident substantially complied with the statutory notice provisions
because hospital records attached to the NOC clearly and accurately set forth
the correct date). The letter substantially complied with subsection (a).
The October 12, 2020 letter also substantially complied with subsections
(b), (c), and (e) of the statute. The letter identified the attorney's address, to
which she asked all future correspondence be sent. In addition, the date, place,
and other circumstances of the accident were detailed in the police report
attached to the letter. The letter also identified the claim number assigned by
Crooks to the accident after he received two County-employee operations
reports and the police report describing the accident in detail. Those documents
also identified the employee who parked the loader on the paved path, and
witnessed the accident. 3
3 We note the October 12, 2020 letter identified the date of loss as August 27, 2020, the day after the accident. Crooks's September 10, 2020 receipt of claim acknowledgement also identified August 27, 2020, as the date of loss. The operations reports and police report identified the date of the accident as August 26, 2020. There is no dispute the accident occurred on August 26, 2020. A-0979-24 23 The October 12, 2020 letter and the enclosed report, however, fell short
of substantially complying with subsections (d) and (f) of the statute. The letter
and report did not provide "[a] general description of the injury, damage or loss
incurred so far as it may [have been] known at the time of presentation of the
claim . . . ." N.J.S.A. 59:8-4(d). Nor did the documents indicate "[t]he amount
claimed . . . , including the estimated amount of any prospective injury, damage,
or loss, insofar as it may be known" or "the basis of computation of the amount
claimed." N.J.S.A. 59:8-4(f).
The October 12, 2020 letter merely stated plaintiff sustained "injuries" in
the accident. The enclosed police report stated plaintiff reported "she flipped
off the bike and landed on her head/face[,]" had a "gash on her chin[,]" and was
transported by ambulance to a hospital. One of the employee operations report
associated with the claim number on the October 12, 2020 letter stated plaintiff
had a "cut chin" and complained of dizziness after the accident.
Plaintiff alleged, however, she sustained significant physical injuries
beyond her lacerated chin, required surgery, and was suffering from continuing
pain and limitations because of the accident. A purported NOC that is "[d]evoid
of any reference to the scope of [a plaintiff's] damages claim arising from the
alleged torts . . . fail[s] to serve the final objective of the [TCA], to inform the
A-0979-24 24 public entit[y] in advance 'as to the indebtedness or liability that [it] may be
expected to meet.'" H.C. Equities, 247 N.J. at 389 (quoting Beauchamp, 164
N.J. at 122). Plaintiff did not notify defendant of the extent of her injuries or
claimed damages. Defendant was, therefore, unable to assess its indebtedness
and potential liability to plaintiff prior to the filing of her complaint.
In addition, neither the October 12, 2020 letter, the enclosed police report,
nor the operations reports associated with the claim number on the letter,
identify plaintiff's theory of defendant's liability for her claimed damages. None
of those documents referred to a dangerous condition or failure to warn
bicyclists of the dangerous condition. To the contrary, the police report stated
plaintiff told the officer the accident happened when she lost her footing on the
pedal of her bicycle. While plaintiff later claimed not to have made that
admission to the officer, as of its receipt of the October 12, 2020 letter ,
defendant was not on notice of plaintiff's claims the parked loader was a
dangerous condition, no cones or other warning measures were in place near the
loader, and the equipment's safety lights were not activated, contrary to a
statement in the employee operations report. As of October 12, 2020, the
County's investigation was predicated on plaintiff's purported admission the
A-0979-24 25 accident was caused by her operation of the bicycle and not any condition on
County property.
Finally, we note an absence in the record of any explanation for plaintiff's
failure to file an NOC with defendant. The record does not explain plaintiff's
counsel's completion of a State NOC form, or explain why she filed that form
with the State, assuming such a filing was made, and not with defendant as
required by the TCA. Filing the incorrect form with the incorrect entity does
not constitute a series of steps taken to comply with the notice provisions of the
TCA. Nor did plaintiff offer a reasonable explanation for failing to identify in
the October 12, 2020 letter her theory of defendant's liability for her injuries.
Separate from counsel's purported filing of a TCA with the State, she sent a
letter to defendant but did not describe plaintiff's alleged injuries, quantify her
claim for damages, or set forth a theory of defendant's liability for those
damages. Defendant was prejudiced by plaintiff's failure to file an NOC because
it was deprived of the opportunity to investigate and attempt to remediate a
purported dangerous condition and assess and attempt to settle plaintiff's
damages claim prior to the filing of her complaint.
We therefore conclude the motion court's finding that plaintiff
substantially complied with the notice provisions of the TCA is not supported
A-0979-24 26 by the record. The May 24, 2024 order is reversed and the matter is remanded
for entry of an order dismissing the complaint for plaintiff's failure to comply
with the notice provisions of the TCA.
Because we reverse the May 24, 2024 order, we need not decide
defendant's appeal of the November 4, 2022 order denying its motion to dismiss
the complaint without prejudice or the June 20, 2024 order denying its motion
for reconsideration of the May 24, 2024 order. Reversing either or both of those
orders would provide no further benefit to defendant. In addition, because our
reversal of the May 24, 2024 order precludes plaintiff's substantive claims, we
dismiss plaintiff's appeal of the October 25, 2024 order.
The appeal is dismissed. On the cross-appeal, the May 24, 2024 order is
reversed and the matter is remanded for entry of an order dismissing the
complaint. We do not retain jurisdiction.
A-0979-24 27