AHMAAD GRIFFIN, ETC. VS. CITY OF NEWARK (L-6600-19, ESSEX COUNTY AND STATEWIDE)

A
                                NOT FOR PUBLICATION WITHOUT THE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-1100-19T3

AHMAAD GRIFFIN,
Administrator Ad
Prosequendum of the Estate
of GREGORY GRIFFIN,
and AHMAAD GRIFFIN,
Administrator of the Estate
of GREGORY GRIFFIN,

         Plaintiff-Respondent,

v.

CITY OF NEWARK,
NEWARK POLICE
DEPARTMENT,
P.O. JOVANNY CRESPO,
and P.O. HECTOR ORTIZ,

     Defendants-Appellants.
___________________________

                   Argued September 14, 2020 - Decided January 12, 2021

                   Before Judges Sabatino, Gooden Brown,                                         and
                   DeAlmeida (Judge Sabatino concurring).

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-6600-19.
            Wilson D. Antoine, Assistant Corporation Counsel,
            argued the cause for appellant (Kenyatta K. Stewart,
            Corporation Counsel, attorney; Wilson D. Antoine, on
            the briefs).

            Michael J. Epstein argued the cause for respondent
            (Epstein Law Firm, PA, attorneys; Michael J. Epstein,
            of counsel and on the brief; Michael A. Rabasca, on the
            brief).

PER CURIAM

      Defendant City of Newark appeals from the October 25, 2019 order of the

Law Division deeming a notice of claim filed with the city pursuant to the Tort

Claims Act (TCA), N.J.S.A. 59:8-1 to 8-11, by an attorney purporting to act on

behalf of the estate and heirs of decedent Gregory Griffin to have been timely

filed. We reverse.

                                      I.

      The following facts are derived from the record. On January 28, 2019,

defendant Newark police officer Jovanny Crespo shot Griffin during a car chase.

The incident began when Griffin and his passenger, Andrew J. Dixon, fled a

motor vehicle stop by another officer. Their car was pursued by a number of

officers through the streets of Newark. During the chase, Crespo exited his

police cruiser three times and shot into Griffin's moving vehicle, ultimately

striking both Griffin and Dixon. The two injured men were transported to a


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                                      2
trauma center for medical treatment. Police recovered a loaded, semi-automatic

handgun from Griffin's car.

      On January 29, 2019, Griffin succumbed to his injuries. He died intestate,

survived by four children. Two of his children are adults: daughter Ragiah

Harrington, age twenty, and son plaintiff Ahmaad Griffin, age eighteen. His

two remaining children are minor daughters, ages nine and four. Griffin was

also survived by his father Alphonso Whitaker. Dixon survived the shooting.

      In early February 2019, Whitaker contacted Patrick M. Rogan, an attorney

licensed to practice law in Pennsylvania, to pursue legal claims on behalf of

Griffin's estate and heirs against the city and the officers involved in the

shooting. Although Whitaker had no authority to act on behalf of the estate and

heirs, he was in contact with Griffin's surviving adult children and the mothers

of his minor daughters.

      According to his certification, Rogan conducted an Internet search that

revealed the above-described details of the shooting and Griffin's death, except

for Crespo's name. In addition, Rogan's research uncovered a statement by the

Acting Essex County Prosecutor that his office was "actively investigating" the

shooting, was "tak[ing] the . . . matter seriously[,]" as it does in "all cases

involving the use of force[,]" and would be "reviewing the evidence carefully"


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                                       3
and "present[ing] the case to the" grand jury, as required by the Attorney

General's guidelines.

      Rogan did not seek further information from any other source, including

defendant Newark Police Department or the county prosecutor's office.

According to Rogan, he was "aware through [his] years of practice that neither

[of those entities] would release any pertinent information or materials related

to the incident while the investigation was open and ongoing."

      On February 15, 2019, Rogan told Whitaker that there was "no factual or

legal basis to conclude or even allege that" the city or any of its officers acted

improperly or wrongfully. Rogan and Whitaker "agreed to speak again when

more information became available." As a result, Rogan did not file a notice of

claim with the city concerning Griffin's death.

      On February 26, 2019, the Newark Public Safety Director Anthony F.

Ambrose announced that the city "ha[d] concerns about [the] shooting and

[would] cooperate fully with" the prosecutor's investigation. Ambrose also

announced the officer who shot Griffin had been suspended "in the best interest

of our community members." He did not name Crespo. Also on February 26,

2019, the Acting County Prosecutor issued a press release stating that the

"investigation [was] active and ongoing" and that "the evidence gathered, so far,


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                                        4
raises serious questions about the officer's conduct." At the time, all body and

dashboard camera video recordings of the incident were in the possession of the

prosecutor's office and had not been publicly released.

      Whitaker met with Rogan on the same day that the city announced the

officer's suspension. The two men spoke on the phone with one of Griffin's

adult children and representatives of his three other children, all of whom agreed

to pursue "any and all available claims and remedies" arising out of the shooting

and Griffin's death. All of the heirs agreed to retain Rogan to represent Griffin's

estate to file legal claims against the city and its officers.

      Plaintiff, Harrington, and the mother of decedent's nine-year-old daughter

executed retainer agreements with Rogan. The dates of the agreements are not

specified in the record. They agreed that either plaintiff or Whitaker should be

appointed Administrator and Administrator Ad Prosequendum of Griffin's

estate. The mother of Griffin's four-year-old daughter did not execute a retainer

agreement with Rogan and did not respond to him or Griffin's other heirs after

the February 26, 2019 meeting. 1



1
  According to her affidavit, the mother of Griffin's youngest child declined to
retain Rogan because he was not experienced in pursuing personal injury claims,
was not admitted to practice law in New Jersey, and asked her to sign a retainer
agreement with a contingent fee in excess of that permitted by New Jersey law.
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                                          5
      On May 21, 2019, a grand jury indicted Crespo on charges of aggravated

manslaughter, N.J.S.A. 2C:11-4(a), aggravated assault, N.J.S.A. 2C:12-1(b),

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and

official misconduct, N.J.S.A. 2C:30-2, for his role in the shooting.             The

prosecutor's office released the video recordings of the incident the same day.

The Acting County Prosecutor stated at a news conference that it "is the State's

position that [Crespo's] conduct that night was criminal," and that he "showed a

reckless disregard for human life by shooting into a moving vehicle . . . which

had heavily tinted windows."

      According to Rogan, it was only after the announcement that Crespo had

been indicted that it became apparent to him that Griffin's estate and heirs had

viable claims against the city, Crespo, and the other officers involved in the

shooting. Rogan informed Whitaker that "time was now of the essence" to have

someone appointed as Administrator of the estate and to file a notice of claim.

      On May 23, 2019, Rogan filed a notice of claim with the city's Department

of Law, its Office of Public Safety, and the Office of the Attorney General. The

notice of claim states that it was filed on behalf of Griffin's estate and heirs "c/o

Mr. Alphonso Whitaker" and names Crespo, defendant Newark Police Officer

Hector Ortiz, the city, and its police department as responsible for Griffin's


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                                         6
death. The notice of claim was filed 115 days after the shooting, 114 days after

Griffin's death, eighty-seven days after the city announced the suspension of the

officer involved in the shooting, and two days after Crespo was indicted. 2

      The following day, Rogan received a letter from an attorney representing

the city advising that the "notice of claim was not timely served within 90 days

of the incident." The city took the position that the ninety-day period for filing

a notice of claim set forth in N.J.S.A. 59:8-8 expired, at the latest, on April 29,

2019, ninety days after Griffin's death. Rogan did not respond to the letter.

      On May 31, 2019, plaintiff, with the consent of Harrington and the mother

of Griffin's nine-year-old daughter, retained Michael J. Epstein, Esq., to obtain

plaintiff's appointment as Administrator and Administrator ad Prosequendum of

Griffin's estate and to pursue claims against the public entities and officers

allegedly responsible for Griffin's death.

      On June 26, 2019, Epstein filed a complaint and order to show cause in

the Chancery Division seeking plaintiff's appointment as Administrator and

Administrator ad Prosequendum of Griffin's estate. The mother of Griffin's

youngest daughter filed a competing application to be appointed Administrator.


2
  The notice of claim does not indicate that one of Griffin's heirs did not retain
Rogan as counsel, nor does it state that an Administrator had not yet been
appointed for Griffin's estate.
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                                        7
She argued that because no one had been appointed Administrator, Rogan was

not authorized to file the May 23, 2019 notice of claim.

       On August 9, 2019, the Chancery Division entered an order naming

plaintiff as Administrator and Administrator ad Prosequendum for the estate.

       On September 9, 2019, plaintiff filed a motion in the Law Division for an

order deeming the May 23, 2019 notice of claim to have been timely filed.

Plaintiff argued that although he, the other heirs, and Whitaker knew shortly

after the incident of Griffin's death and the involvement of police officers

employed by the city, they did not have sufficient information to allege

wrongdoing, and therefore the claims of the estate and heirs did not accrue until

the May 21, 2019 announcement of Crespo's indictment. In addition, plaintiff

argued that if the court disagreed with that position, the claims of the estate and

heirs accrued at the earliest on February 26, 2019, when the city announced the

suspension of an unnamed officer, eighty-seven days prior to the filing of the

notice of claim.

       Alternatively, plaintiff argued that if the claims of the estate and heirs

arose prior to February 22, 2019, 3 the court should grant him leave pursuant to

N.J.S.A. 59:8-9 to file a late notice of claim because of a lack of prejudice to the


3
    February 22, 2019 is ninety days prior to May 23, 2019.
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                                         8
defendants and extraordinary circumstance that caused the failure to file a timely

notice. He argued that the city and its employees would not be prejudiced by a

late notice of claim because the claims of Griffin's minor survivors have not yet

accrued, see N.J.S.A. 59:8-8 ("[n]othing in this section shall prohibit a minor

. . . from commencing an action under this act . . . after reaching majority . . . "),

and because the estate and heirs could assert State and federal constitutional and

statutory claims not subject to the TCA's notice provisions. See Owens v.

Feigin, 

194 N.J. 607

, 609 (2008) (TCA's notice-of-claim provisions do not apply

to claims asserted under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -

2); Schneider v. Simonini, 

163 N.J. 336

, 372 (2000) (TCA's notice-of-claim

provisions are inapplicable to civil rights actions under 42 U.S.C. § 1983) . He

argued that the extraordinary circumstances standard was satisfied because no

one had authority to file a notice of claim on behalf of the estate until his

appointment to the Administrator positions.

      The city opposed the motion, arguing that the claims of the estate and

heirs accrued on January 28, 2019, the day of the shooting or, at the latest, on

January 29, 2019, the day Griffin died. The city argued that plaintiff, the other

heirs, and Whitaker had sufficient information to file a notice of claim prior to

the expiration of the ninety-day period or could have obtained sufficient


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                                          9
information by conducting a further investigation, filing a public records request

with the city, or interviewing Dixon. 4 In addition, the city argued that leave to

file a late notice of claim is not warranted because, although the city concedes

it would not be prejudiced by a late notice of claim, plaintiff cannot establish

extraordinary circumstances justifying such relief. The city characterized the

late filing as the consequence of Rogan's inadvertence or misunderstanding of

the law, given that he confused the estate and heirs' ability to prove a claim

against the city and its employees with their knowledge that Griffin's injuries

were caused by city employees. Finally, the city argued that plaintiff failed to

file the motion for leave to file a late notice of claim in a reasonable time after

his appointment as Administrator.

      On October 25, 2019, the trial court issued an oral opinion granting

plaintiff's motion. The court's findings of fact and conclusions of law suggest it

granted plaintiff leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9:

            [I]f there ever was a case that says extraordinary
            circumstances, this is it based just only on the dates
            involved and the fact that certain information was not
            being released.     It was obviously an ongoing
            investigation.

                   ....

4
  Dixon remained hospitalized after the shooting. A grand jury later indicted
him on multiple charges arising from the incident.
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                                       10
            And I think that in fact . . . the estate was at the
            appointment of an administrator who could legally
            proceed with the matter . . . on August 9th. The motion
            here was made a month later, on September 9th. I[]
            think that's a reasonable time based upon the
            circumstances.

            Also with regard to the other, and minimal information
            that was released by the Prosecutor's Office, given the
            fact that this was an ongoing and continuing . . .
            investigation . . . this is an extraordinary circumstance
            simply upon the way the facts of this case developed.
            And that being the case[,] I'm going to deem that the
            notice, the notice was timely filed . . . .

      The October 25, 2019 order, however, suggests that the court concluded

that plaintiff filed the notice of claim within ninety days of the accrual of the

estate's claims. The order states, that it is "ORDERED that the Notice of Claim

filed on May 23, 2019 on behalf of the heirs and estate of decedent . . . is hereby

deemed timely filed . . . ." The court struck out the following paragraph of the

order: "ORDERED that plaintiff's alternative application for leave to file a

Notice of Claim out of time pursuant to N.J.S.A. 59:8-9 is hereby GRANTED."

      The parties have different views of the basis of the court's decision. The

city argues that the court granted plaintiff leave to file a late notice of claim.

Plaintiff interprets the court's decision as concluding that the estate's claims did

not accrue until the announcement of Crespo's indictment. We are not aided in


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                                        11
our understanding of why the court granted plaintiff's motion by the fact that its

decision does not cite any statute or legal precedent.

      This appeal followed. The city raises the following arguments.

            POINT I

            THE COURT BELOW SHOULD HAVE DENIED
            THE    MOTION    FOR   ABSENCE  OF
            "EXTRAORDINARY CIRCUMSTANCES."

            POINT II

            THE LOWER COURT SHOULD NOT HAVE FOUND
            THAT PLAINTIFF'S MOTION FOR LEAVE WAS
            FILED WITHIN A REASONABLE TIME.

            POINT III

            PLAINTIFF'S        NOTICE        OF    CLAIM       WAS
            UNTIMELY.

            POINT IV

            PLAINTIFF'S NOTICE OF CLAIM WAS NOT
            SUBJECT TO EQUITABLE TOLLING.

            POINT V

            PLAINTIFF IS NOT ENTITLED TO THE DOCTRINE
            OF SUBSTANTIAL COMPLIANCE.

                                       II.

      The TCA modifies the doctrine of sovereign immunity and establishes the

parameters within which an injured party may recover for the tortious acts of

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                                       12
public entities and employees. Feinberg v. Dep't of Envt'l Protection, 

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. Dep't of

Transp., 

182 N.J. 481

, 488 (2005) (internal quotations omitted)). The Act,

therefore, "imposes strict requirements upon litigants seeking to file claims

against public entities." McDade v. Siazon, 

208 N.J. 463

, 468 (2011).

      Among those requirements is that the claimant, prior to initiating suit, file

a notice of claim describing "[t]he date, place and other circumstances of the

occurrence or transaction which gave rise to the claim asserted," along with

other information. N.J.S.A. 59:8-4(a) to (f). The notice of claim

            shall be presented . . . not later than the 90th day after
            accrual of the cause of action. . . . 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.]

N.J.S.A. 59:8-9 provides that

            [a] claimant who fails to file notice of his claim within
            90 days as provided in section 59:8-8 . . . , may, in the
            discretion of a judge of the Superior Court, be permitted

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                                        13
            to file such notice at any time within one year after the
            accrual of his claim provided that the public entity or
            the public employee has not been substantially
            prejudiced thereby. Application to the court for
            permission to file a late notice of claim shall be made
            upon motion supported by affidavits based upon
            personal knowledge of the affiant showing sufficient
            reasons constituting extraordinary circumstances for
            his failure to file notice of claim within the period of
            time prescribed by section 59:8-8 . . . or to file a motion
            seeking leave to file a late notice of claim within a
            reasonable time thereafter . . . .

      As we recently explained, "[a]scertaining 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 v. Amedio, 

164 N.J. 111

, 118 (2000)).             "The first step is to

determine when the cause of action accrued in accordance with N.J.S.A. 59:8-

1."

Ibid. “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. “‘If not, the

third task is 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).



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                                       14
      Because the parties dispute the basis of the trial court's decision, we will

address each of the three steps outlined in McNellis-Wallace, beginning with

determining the date the claims of the estate and heirs 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

. Accrual of a survival cause of action is

on the date of injury. Iaconianni v. N.J. Turnpike Auth., 

236 N.J. Super. 294

,

298 (App. Div. 1989). A wrongful death claim accrues on the date of death.

Ibid.; Barbaria v. Twp. of Sayerville, 

191 N.J. Super. 395

, 400 (App. Div. 1983).

We review de novo the trial court's determination of an accrual date. Manalapan

Realty, LP v. Twp. Comm., 

140 N.J. 366

, 378 (1995).

      As noted above, the city argues the claims of the estate and heirs accrued

on the date of the shooting or the day Griffin died. According to the city,

plaintiff, the other heirs, and Whitaker were immediately aware of Griffin's

gunshot injury and death, that the injury and death were caused by a police

officer's discharge of his firearm during a car chase, and that the officer was

employed by the city. The city notes that shortly after the shooting plaintiff had

knowledge of all of the information that ultimately was included in the May 23,


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                                       15
2019 notice of claim, apart from Crespo's name and the existence of the

indictment. The city's rejection of the notice of claim was not based on an

absence of sufficient information about the incident giving rise to the claim, but

on the timing of its filing.

      Plaintiff, on the other hand, argues that the claims accrued on May 21,

2019 when the indictment was announced. According to plaintiff, until then "it

was not apparent that [Griffin's] heirs and estate had viable claims against

defendants" because "no specific explanation or reason for the officer's

suspension was provided, the facts and circumstances of [Griffin's] death were

still unknown and unavailable, and the identity of the officer(s) involved . . .

were still unknown." Alternatively, plaintiff argues the claims accrued at the

earliest on February 26, 2019, when the city announced the suspension of the

officer who shot Griffin because prior to that date, the limited information

publicly reported provided no basis to believe the city or its employees had

engaged in any wrongdoing. Plaintiff argues that a conclusion that the claims

accrued on the day of the shooting would create a per se accrual rule in police-

involved shooting cases that encourages "whimsical" filings of notices of claim.

      Having reviewed the record in light of the well-established precedents, we

are constrained to conclude that the claims of the estate and heirs accrued at the


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                                       16
latest on January 29, 2019, the day Griffin died.5 As the city convincingly

argues, on that day, Griffin's heirs were aware that his death was the result of

gunshot wounds inflicted by one or more Newark police officers during a car

chase. This was sufficient information to file a notice of claim alerting the city

to the potential claims of the estate and its heirs.

      We are not persuaded by plaintiff's argument that the accrual of the claims

was tolled by the discovery rule until either the announcement that an officer

was suspended or the announcement that Crespo had been indicted.              The

discovery rule is grounded in "the unfairness of barring claims of unknowing

parties," Caravaggio v. D'Agostini, 

166 N.J. 237

, 245 (2001) (quoting Mancuso

v. Neckles, 

163 N.J. 26

, 29 (2000)), and tolls the running of a limitation period

where "injured parties reasonably are unaware that they have been injured, or,

although aware of an injury, do not know that the injury is attributable to the

fault of another,"

id. at 245-46

(quoting Baird v. Am. Med. Optics, 

155 N.J. 54

,

66 (1998)). "The question in a discovery rule case is whether the facts presented

would alert a reasonable person, exercising ordinary diligence, that he or she



5
  Arguably, the claims accrued on January 28, 2019, when Griffin was shot. It
is not clear from the record, however, that Griffin's heirs were aware of the
shooting on that day, given that the incident took place at approximately 11:20
p.m. The one-day difference is not material to the outcome of this appeal.
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                                        17
was injured due to the fault of another." 

Caravaggio, 166 N.J. at 246

. The

"knowledge of fault for purposes of the discovery rule has a circumscribed

meaning: it requires only the awareness of facts that would alert a reasonable

person exercising ordinary diligence that a third party's conduct may have

caused or contributed to the cause of the injury and that conduct itself might

possibly have been unreasonable or lacking in due care." Savage v. Old Bridge-

Sayerville Med. Grp., P.A., 

134 N.J. 241

, 248 (1993). The standard is awareness

of fault that is merely possible, not legally certain, provable, or probable.

Ibid. The record convincingly

establishes that shortly after Griffin's death,

plaintiff and the other heirs were aware of the possibility that the city and its

employees were liable for Griffin's death. In early February 2019, Whitaker,

who was in contact with Griffin's adult surviving children and the

representatives of his minor children, consulted an attorney seeking legal advice

on whether the estate and heirs could assert claims against the city and the police

officers involved in the shooting. At that time, the Acting County Prosecutor

had publicly announced that his office was investigating the matter for

presentation to a grand jury.

      It was not a lack of awareness of the involvement of a public entity and

its employees that caused the estate and heirs not to file a notice of claim. It


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was Rogan's mistaken impression that in order to file a notice of claim the estate

and heirs had to have a sufficient "factual or legal basis to conclude or even

allege" that a public entity or its employees had "violated any right of and/or

duty owed to" Griffin "or otherwise acted improperly . . . ." Rogan mistakenly

conflated knowledge of a potential claim against the city with possession of

sufficient information to successfully prove the city's liability.6

      We are not persuaded by plaintiff's argument that a finding that the claims

of the estate and heirs accrued on the day of Griffin's death will create a per se

rule for police-involved shooting that encourages the filing of "whimsical"

notices of claim. It is difficult to conceive of a situation in which the survivors

of someone who died in a police-involved shooting would not have at least a

colorable basis to file a notice of claim in the ninety days following the event.

It is undoubtedly true that many such uses of force will be determined to have

been justified, with no liability attaching to the officers or agency that employs

them. In those instances, however, a notice of claim filed by the decedent's



6
   There is no evidence in the record that Rogan is licensed to practice law in
New Jersey. We offer no view on the propriety of Rogan having: (1) provided
legal advice to Whitaker and Griffin's estate and heirs with respect to how and
whether to proceed with their tort claims under New Jersey law; (2) met with
Whitaker in New Jersey for the purpose of providing legal advice; and (3) filed
a notice of claim in New Jersey purportedly on behalf of the estate and heirs.
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                                        19
estate and heirs would have little detriment to the public entity, which almost

certainly will have investigated the incident whether or not a notice of claim had

been filed. However, where, as is the case here, the legality of the shooting is

called into question, the notice of claim will have alerted the public entity to

potential civil claims in the immediate aftermath of the event and satisfied the

strict standards for abrogating immunity under the TCA.

      Ninety days from January 29, 2019 was April 29, 2019. We conclude,

therefore, that the May 23, 2019 notice of claim was filed after expiration of the

ninety-day statutory period. The trial court erred to the extent that it determined

that the notice of claim was timely filed.7

      We turn to whether leave to file a late notice of claim on behalf of Griffin's

estate and heirs was warranted. We review the trial court's application of the

extraordinary circumstances exception in N.J.S.A. 59:8-9 for an abuse of

discretion. 

McDade, 208 N.J. at 476-77

. "Although deference will ordinarily

be given" to the trial court's fact findings, "the court's conclusions will be




7
  Because we conclude that Griffin's heirs had sufficient information to file a
notice of claim shortly after the shooting, we need not address whether they had
an obligation to investigate the matter further by interviewing Dixon or making
public records requests of the public entities investigating the incident.
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                                       20
overturned if they were reached under a misconception of the law." 

D.D., 213 N.J. at 147

.

      Prior to the enactment of N.J.S.A. 59:8-9, to be granted leave to file a late

notice of claim, a claimant needed only show "sufficient reasons" prevented the

filing of a timely notice of claim. Lowe v. Zarghami, 

158 N.J. 606

, 625 (1999).

The statute was amended in 1994 to include the extraordinary circumstances

standard, which is "more demanding[,]"

id. at 625-26,

and "raise[d] the bar for

the filing of a late notice" of claim, Rogers v. Cape May Cty. Office of Pub.

Def., 

208 N.J. 414

, 428 (2011). The party seeking leave to file a late notice of

claim bears the burden of establishing extraordinary circumstances. Ventola v.

N.J. Veterans' Mem'l Home, 

164 N.J. 74

, 80 (2000).

      The TCA does not define what constitutes "extraordinary circumstances,"

leaving "for a case-by-case determination . . . whether the reasons given rise to

the level of 'extraordinary' on the facts presented." 

Lowe, 158 N.J. at 626

(citations and internal quotations omitted). However, as the Supreme Court

explained,

               [t]he Legislature's grant of authority to trial courts to
               permit a late notice in the exercise of their discretion
               does not equate with a grant of authority to override the
               statute's declaration of purpose or to substitute a lesser
               standard of proofs for the extraordinary circumstances
               demanded by the 1994 amendment to the statute itself.

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            Trial courts, in exercising their statutory authority, and
            appellate courts, in reviewing those decisions, must
            ensure that their decisions are faithful to the overall
            legislative framework in order that the statute's
            essential purposes be preserved and not eroded through
            excessive or inappropriate exceptions. Courts faced
            with applications for leave to file a late notice of claim,
            therefore, must proceed with their evaluation mindful
            of the Legislature's direction that the proofs
            demonstrate circumstances that are not merely
            sufficient, but that they instead be extraordinary.

            

[D.D., 213 N.J. at 148-49

.]

      From January 29, 2019, when the claims of the estate and heirs accrued,

to April 29, 2019, when the statutory ninety-day period expired, no impediment

existed to plaintiff, Griffin's other heirs, or Whitaker filing a notice of claim

informing the city that Griffin's estate and heirs might file tort claims arising

from the shooting. While it is true that no one had been appointed to the

Administrator positions for the estate, such an appointment is not necessary to

file a protective notice of claim on behalf of the estate. A notice of claim shall

be "signed by the claimant or by some person on his behalf." N.J.S.A. 59:8-5.

This includes counsel acting in the claimant's interest, even if not retained or

authorized to do so. S.E.W. Friel Co. v. N.J. Turnpike Auth., 

73 N.J. 107

, 121-

22 (1977) (concluding attorney can move for leave to file late notice of claim

on behalf of claimant without having been retained to do so because he was not


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"an officious intermeddler[] in presuming to make the . . . motion on [the

claimant's] behalf."). In addition, N.J.S.A. 3B:10-19 provides that "[t]he powers

of a personal representative relate back in time to give acts by the person

appointed which are beneficial to the estate occurring prior to appointment the

same effect as those occurring thereafter." Thus, plaintiff could have filed a

timely notice of claim on behalf of the estate and heirs and sought retroactive

validation of the notice once appointed to the Administrator positions.

      Notably, Rogan filed the May 23, 2019 notice of claim purportedly on

behalf of the estate and heirs prior to plaintiff's appointment to the Administrator

positions and without having been retained to do so by all of the estate's heirs .

He presumably did so with the intention of seeking retroactive validation of the

notice of claim under N.J.S.A. 3B:10-19 after appointment of plaintiff to the

Administrator positions. The city's rejection of the notice of claim was based

only on its late filing and not on a claim that Rogan lacked legal authority to file

the notice of claim because an Administrator had not been appointed.

      Nor does Rogan's mistaken interpretation of New Jersey law to require a

claimant to have a provable claim before filing a notice of claim constitute an

extraordinary circumstance. As our Supreme Court has unequivocally held, "we

cannot agree that an attorney's inattention to a file, or even ignorance of the law,


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equates with extraordinary circumstances for tort claims purposes." 

D.D., 213 N.J. at 156

.

      The few instances in which published precedents support a finding of

extraordinary circumstances do not apply here. For example, the record does

not demonstrate that the involvement of the city or its officers was withheld

from plaintiff by another public entity. See Mendez v. S. Jersey Transp. Auth.,

416 N.J. Super. 525

, 534 (App. Div. 2010) (finding extraordinary circumstances

where a videotape depicting the involvement of a municipal ambulance in a

motor vehicle accident that injured plaintiff was withheld by a public highway

authority until after expiration of the ninety-day notice period). The fact that

the body and dashboard video recordings were not released until the

announcement of Crespo's indictment is not the equivalent of the circumstances

in Mendez. Here, prior to the release of the video recordings, although plaintiff,

the heirs, and Whitaker did not know the name of the officer who shot Griffin

or the exact details of the officer's conduct, they were aware that the city and its

officers were involved in the shooting that resulted in Griffin's death. As we

previously held, this was sufficient information to file a notice of claim.

      Similarly, the officers' status as public employees was not obscured by the

circumstances that gave rise to Griffin's injuries. See 

Lowe, 158 N.J. at 629

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(finding extraordinary circumstances where a physician employed by a public

entity allegedly committed medical malpractice during surgery on plaintiff at

private hospital, obscuring his public employment). Nor was there confusion as

to whether a State or federal agency employed the officers involved in the

shooting. See 

Ventola, 164 N.J. at 82

(finding extraordinary circumstance

where plaintiff was under the mistaken impression that a veterans' residential

care facility was operated by the federal government). Plaintiff's failure to file

a timely notice of claim cannot be attributed to an attorney's reasonable reliance

on precedent from this court that arguably supported his interpretation of the

TCA's notice requirement.      See 

Beauchamp, 164 N.J. at 122-23

.          Finally,

plaintiff did not prepare a timely notice of claim naming the city that was filed

with the wrong public entity while another claimant filed a timely notice of

claim on the city arising from the same incident naming the plaintiff as an

injured party, two factors found to be a "rare case" that constitutes extraordinary

circumstances in O'Donnell v. New Jersey Turnpike Authority, 

236 N.J. 335

,

350-52 (2019).

      By February 26, 2019, well within ninety days of Griffin's death, plaintiff,

Harrington, and the representative for both minor children had consulted Rogan

and agreed to seek plaintiff's appointment to the Administrator positions


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necessary to initiate suit on behalf of Griffin's estate. All but the representative

of one of the minor heirs signed retainer agreements with Rogan. They were

clearly aware less than a month after Griffin's death of their potential legal

claims against the city and the officers involved in the shooting. There was no

obstacle to those heirs filing a notice of claim at that time, which Rogan did

almost two months later, or initiating a legal action in the Chancery Division for

the appointment of an Administrator and seeking leave to file a protective notice

of claim on behalf of the estate and heirs. The fact that there were competing

claims for appointment as Administrator did not preclude, and may have been

an incentive to, filing a legal action to resolve the dispute prior to expiration of

the ninety-day period.

      We recognize that the city concedes that it would suffer no prejudice as

the result of the filing of a late notice of claim. Because plaintiff did not

demonstrate extraordinary circumstances for the late filing, the lack of prejudice

to the city is not relevant to our analysis. In addition, in light of our holding

with respect to the absence of extraordinary circumstances, we do not reach the

question of whether plaintiff's motion for leave to file a late notice of claim was

filed within a reasonable time.

      Reversed.


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______________________________
SABATINO, P.J.A.D., concurring.

      I join in the majority's opinion for the analytically sound reasons it

expresses. I briefly write to highlight two concerns.

      First, as the city concedes, it has sustained no substantial prejudice from

plaintiff's modest twenty-four-day delay beyond the prescribed deadline in

serving a tort claim notice. Counsel have advised us that, consistent with law

enforcement policies pertaining to a police officer's use of a firearm, the city

would not have conducted an independent investigation into the shooting while

the Acting County Prosecutor was actively investigating the matter.

      The completed tort claims notice form provided the city with little or no

information it did not already know. It is unlikely the survivors' claims in this

shooting matter, which resulted in an officer's indictment, could have settled

within or shortly after the statutory ninety-day notice period. This is not a

simple pothole or uneven sidewalk case. The form's twenty-four-day tardiness

was inconsequential here as a practical matter.

      That said, I am mindful that case law has strictly enforced the TCA's

statutory notice deadline. See, e.g., D.D. v. UMDNJ, 

213 N.J. 130

(2013)

(holding, in a 3-2 opinion, that neither a claimant's mental or emotional state,

nor the inattention of her attorney, comprised "extraordinary circumstances"

under N.J.S.A. 59:8-9 to extend the ninety-day notice period). As a matter of
law, for a claimant to gain an extension under N.J.S.A. 59:8-9, extraordinary

circumstances are an independent requirement apart from lack of substantial

prejudice. We are constrained by precedent to not relax the ninety-day deadline

in the present setting. Plaintiff's mistaken assumption about the accrual of the

claims does not qualify under case law as an extraordinary circumstance. In any

event, the statutory civil rights claims of all four surviving children and the

negligence claims of the two minor children can proceed.

      My second point of concern is that, as a policy matter, the Legislature

might want to consider revising N.J.S.A. 2A:14-23.1 and N.J.S.A. 59:8-8 to

allow grieving family members in TCA cases involving fatalities some

additional time for them or their representative(s) to serve tort claims notices.

The objective of the special six-month period established in N.J.S.A. 2A:14-

23.1 for tolling the statute of limitations for wrongful death claims is "the

salutary purpose of providing executors and administrators with a limited period

of time after death to evaluate potential claims available to the estate." Warren

v. Muenzen, 

448 N.J. Super. 52

, 67-68 (App. Div. 2016); see also Repko v. Our

Lady of Lourdes Medical Center, Inc., 

464 N.J. Super. 570

, 577 (App. Div.

2020) (quoting and reaffirming that observation of legislative purpose) . The

same policy considerations arguably extend to a decision by survivors to place


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a public entity on formal notice of their intention to sue it for the decedent's

demise. Where, as here, the decedent is intestate and has multiple survivors,

there can be confusion and disagreement about who should serve as the estate's

administrator, which counsel should be retained to interact with the public entity

concerning the claims, and the terms of such counsel's retention.

      Here, the unrefuted certification of the mother of the four-year-old

youngest surviving child reflects that she did not wish the Pennsylvania attorney

to file a tort claims notice on her child's behalf. Among other things, she

expressed concerns that the Pennsylvania attorney lacked expertise in New

Jersey negligence law and that the forty percent contingency fee demanded in

his proposed retainer agreement was excessive.         It is undisputed that she

declined to sign the retainer agreement. The identity of the estate's administrator

had not yet been resolved. It therefore appears to have been improper for the

Pennsylvania attorney to convey to the city that he was acting on behalf of "the

heirs and the estate". Although such provisional action conceivably could be

ratified at a future time, it would have been preferable to have had a coordinated

and fully authorized notice submitted on behalf of all the survivors.

      If the statutes were amended to allow more time to serve a notice in TCA

fatality cases, at least where the decedent is intestate, a more orderly process


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could be followed that might allow grieving families a reasonable time to make

appropriate joint decisions.

      There may well be competing policy reasons disfavoring such an

automatic time extension for certain case types, such as perhaps medical

negligence claims as to which prompt notice may be essential for a public

hospital to gather evidence quickly for anticipated civil litigation by the patient’s

estate. On the other hand, in fatal shooting matters such as this one – with an

intestate decedent having multiple heirs and involving an active criminal

investigation – there may be no compelling reason to force the heirs to file a

joint tort claims notice in haste. These appear to be worthwhile subjects for

legislative consideration and debate.




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