Skip to Content

Substantial Compliance for Notices of Tort Claims Means Just That

Jul 30, 2021 | Written by: Jacob A. Papay, Jr., Esq. |

According to the NJ Tort Claims Act (NJTCA), a public entity is only liable for claims of negligence under the terms and conditions of the Act, NJSA 59:1-1, et seq.  The primary rule under the NJTCA is that public entities are immune from negligence claims unless the Act expressly permits the claim, and then only if the claim is properly and timely submitted.  It does not matter whether the negligence claim is asserted directly by a plaintiff against the public entity or by a defendant as a crossclaim or third-party claim for contribution against the public entity.  Jones v. Morey’s Pier, 230 N.J. 142 (2017).  It also does not matter whether the party asserting the negligence claim is a private or public person/entity.  What does matter is whether the claim was properly asserted under the NJTCA, or it is forever barred. 

The NJTCA sets forth the conditions upon which a public entity may have liability and exceptions thereto that override the potential liability.  The NJTCA requires written notice to the public entity of specific information relating to the negligence claim within 90 days from the date the claim accrued, which is generally the date the negligent act causing injury occurred.  NJSA 59:8-4 and NJSA 59:8-8.  Upon a showing of extraordinary circumstances that prevented a party from providing written notice within 90 days from the date the claim accrued, the Court may grant leave to serve notice up to one year from the date the claim accrued upon motion showing sufficient extraordinary circumstances to warrant the extension of time.  NJSA 59:8-9.  Failure to serve written notice within 90 days from the date a negligence claim accrued or within one year from that date pursuant to an order granting a NJSA 59:8-9 motion for leave to extend the time for extraordinary reasons will forever bar the claim. 

Our courts have applied an equitable doctrine of substantial compliance to the contents of notices of claims to prevent barring timely and legitimate claims that reasonably and fairly provide the statutorily required claim information because of technical violations of those notice requirements.  The NJ Supreme Court recently reviewed the standards of substantial compliance.  H.C. Equities, LP v. County of Union (A-1/2-20) (084556), argued February 2, 2021 -- Decided July 19, 2021.  In reviewing the doctrine, the Court noted:

The substantial compliance doctrine operates to prevent barring legitimate claims due to technical defects. A court deciding a substantial compliance claim considers the following factors: “(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim, and (5) a reasonable explanation why there was not a strict compliance with the statute.” Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001). In Tort Claims Act cases, the doctrine of substantial compliance 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.  H.C. Equities, supra. at pp. 26-27.

The NJ Supreme Court held the notice in question did not substantially comply with the statutory notice requirements, even though three corporate counsels for the claimant submitted separate “notices” to the County and its municipal utility authority of the public entities’ alleged negligence and damages allegedly sustained therefrom. The Supreme Court found the three “notices,” individually or collectively, did not provide the basic information required of Notices of Tort Claims by NJSA 59:8-4.  The Court also noted the claimant did not seek leave to file a late Notice of Claim per NJSA 59:8-9, but the decision was primarily based upon the determination that the claimant’s “notices” did not substantially comply with the statutory requirement to provide basic mandatory information of the claim so the public entity can respond in a fair, timely and financially reasonable manner.  The fact the corporate claimant could not meet the standards of substantial compliance with the notice requirements speaks volumes that public entities are immune from tort liability unless expressly permitted.

Jacob Papay, Jr.


Jacob A. Papay, Jr. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of construction defect claims, construction injury claims,  first-party insurer claims, insurance coverage disputes, subrogation, provider health care law, commercial law, defense of professional negligence, and public entity general liability.  He represents numerous insurers, Third Party Administrators, medical groups, and businesses, and he has successfully defended public entity officials and employers in wrongful death, discrimination, excessive force and other civil rights claims.  In addition, Mr. Papay represents small businesses in mergers, acquisitions, trade secrets, employment and unfair trade practice claims. 

If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.

Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.