Law360 (February 14, 2024, 5:42 PM EST) — A New Jersey appeals court on Wednesday declined to let the South Jersey Transportation Authority escape a suit over a fatal car crash at a toll plaza, saying the trial court didn’t abuse its discretion by allowing the family to file a late notice of claim after receiving video of the crash.
The two-judge panel’s per curiam opinion affirmed an order allowing the Khiev family to file a late notice to SJTA, saying the family exercised due diligence and showed the trial court that they only became aware of any potential liability on SJTA’s part after getting the video, excusing the lateness of their notice.
The suit stems from a crash on Dec. 26, 2021, of a car carrying four members of the Khiev family, which hit a tollbooth and caught fire. Three of them, Keotepie, Reachsieh and Reachthon Khiev, died, and the fourth, Michelle Khiev, then 12 years old, was injured severely.
A family member retained a law firm on Jan. 4, 2022, to investigate the crash, and the attorney and experts requested a full report and video of the crash as soon as they found out it was available in March, but the police did not deliver the final report until that May 11.
The 90-day deadline for filing a notice of claim with the state following the crash was that March 26, and the family filed for leave to file a late notice, which was granted by the court, which held that notice was deemed to have been served on June 30. The SJTA appealed.
The agency challenged the court’s finding that the claim had accrued on May 11, 2022, instead of the day of the crash, as well as the court’s finding that even if the notice was late, it was excused through extraordinary circumstances.
But on Wednesday, the Appellate Division said that although the Khiev family knew that the Egg Harbor Toll Plaza was owned and operated by SJTA at the date of the crash, they showed that this alone was not enough to make them aware that SJTA could be liable.
The panel wrote that substantial, credible evidence supports the trial court’s finding that the video — which showed a sloped concrete barrier at the plaza that the plaintiffs say contributed to the deaths — gave the family its first notice that SJTA could be responsible.
In addition, the judges wrote that even if notice was late, it is excusable because the family did its due diligence, immediately investigating the crash and pursuing the police report and video as soon as they knew it could be requested.
Finally, the judges found that SJTA would not be unduly prejudiced, as the agency was well aware of the crash when it occurred, the car has been preserved, witnesses are still available, and the agency has the final report and video.
In addition, the agency has had access to all the information and evidence that was available within 90 days of the crash, and the notice was filed four months after the initial 90-day deadline, well before the one-year limit for a late notice, the panel said.
“The parents of the victims of this crash are very thankful for the appellate court’s decision,” William M. Davis of McMonagle Perri McHugh Mischak Davis, representing the Khiev family, told Law360 on Friday. “It allows them to proceed with their claims and try to obtain justice for their children.”
Representatives for the state could not immediately be reached for comment Wednesday.
Judges Robert Gilson and Maritza Berdote Byrne sat on the panel for the Appellate Division.
SJTA is represented by Nicholas A. Sullivan and Wade Lawrence Dickey of Florio Perrucci Steinhardt Cappelli & Tipton LLC.
The Khiev family is represented by Charles Matthew Gibbs of McMonagle Perri McHugh Mischak & Davis and Jason David Javie of Levin & Javie.
The case is Estate of Keotepie Khiev et al. v. South Jersey Transportation Authority, case number A-0620-22, in the Superior Court of the State of New Jersey, Appellate Division.