When A Child Is Injured, All Timelines Are Tolled Until They Reach the Age of Majority

Estate of Micah Samuel v. Pleasantville Board of Education

Docket No.: A-4314-19

A-4451-19

Decided January 20, 2022

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

In a recent published decision, the Appellate Division of New Jersey allowed for a parent’s Tort Claims Notice for a Portee claim to be tolled along with the minor’s Tort Claims Notice until the child reaches the age of majority, after a mother witnessed her son shot at a football game leading to his death.

In Estate of Micah Samuel, On November 15, 2019, plaintiff Angela Tennant and her ten-year-old son, Micah Dunmore, were attending a high school football game at Pleasantville High School when an individual fired a gun into the stands, striking and injuring Micah. Angela witnessed the events. Micah died from his injuries on November 20, 2019.

On February 14, 2020—ninety-one days after the shooting and eighty-six days after Micah’s death—the Estate of Micah Dunmore (the Estate), Angela, and other family members emailed a notice of tort claims to the Pleasantville Board of Education (Board). The claimants asserted wrongful death and survivor claims. Angela also brought a claim for negligent infliction of emotional distress under Portee.

In March 2020, the Estate filed a motion seeking declaratory judgment that the tort claims notice was timely filed. The unopposed motions were granted, as the court found the notice complied with the TCA. However, it was subsequently discovered that the Board had not received the motion prior to the return date.

Thereafter, the Board moved for reconsideration of the court’s order. Angela moved for leave to file a late notice of claim against the City of Pleasantville and the Board under N.J.S.A. 59:8-9. The notice sent in February was only emailed to the Board, not the City.

During oral argument on the motions, the Board conceded that the wrongful death claims did not accrue until Micah died on November 20. Therefore, the tort claims notice filed by the Estate and the family members as beneficiaries of the estate regarding those claims was timely. The court agreed and denied the Board’s application to vacate the prior order regarding the Estate’s claims.

The Board appealed and the Appellate Division found that the mother’s Portee claim and Tort Claims Notice requirement were tolled for the same period of time as the minor child’s wrongful death Tort Claims Notice and claim – until when the child was to be eighteen years old. The Appellate Division reasoned that if a parent’s Portee claim was required to be brought  in a normal timeline, it would result in minor children’s claims being brought prematurely and contrary to the tolling statute.

This case is important to understand the notice requirements when a child is injured and damages are sought from a public employee or entity. Normally, a Tort Claims Notice must be sent to the public employee and/or entity within 90 days of the claim arising. Failure to do so will likely result in a bar to a civil suit.

When a child is injured, all timelines are tolled until they reach the age of majority. This includes the Tort Claims Notice 90 day requirement.

A Portee claim provides recovery to those who witness the death or serious injury of a loved one as a result of the negligence of another, but who were not in the zone of danger themselves. Here the Portee claim for the child’s mother was tolled until the child would reach the age of majority, allowing for significantly more time to file a claim and issue a Tort Claims Notice

If you or someone you know has been, injured at work or anything related to work including commuting, or were involved in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters including workers compensation, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Aberdeen, Allenhurst, Allentown, Asbury Park, Atlantic Highlands, Avon-by-the-Sea, Belmar, Bradley Beach, Brielle, Colts Neck, Deal, Eatontown, Englishtown, Fair Haven, Farmingdale, Freehold borough, Freehold township, Hazlet, Highlands, Holmdel, Howell, Interlaken, Keansburg, Keyport, Little Silver, Loch Arbour, Long Branch, Manalapan, Manasquan, Marlboro, Matawan, Middletown, Millstone, Monmouth Beach, Neptune, Neptune City, Ocean, Oceanport, Red Bank, Roosevelt, Rumson, Sea Bright, Sea Girt, Shrewsbury borough, Shrewsbury township, South Belmar, Spring Lake Boro, Spring Lake Heights, Tinton Falls, Union Beach, Upper Freehold, Wall, West Long Branch.