Twanda Jones v. Morey’s Pier, Inc. (077502) (Cape May and Statewide)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity,
portions of any opinion may not have been summarized).
Twanda Jones v. Morey’s Pier, Inc. (A-75-15) (077502)
Argued February 27, 2017 – Decided July 27, 2017
PATTERSON, J., writing for the Court.
In this appeal arising from the tragic death of eleven-year-old Abiah Jones after she fell from a ride in an
amusement park, the Court considers the following: 1) the circumstances under which a defendant is barred from asserting
contribution and common-law indemnification claims against a public entity for purposes of the Tort Claims Act; 2)
whether the jury should be permitted to allocate a percentage of fault to a public entity pursuant to the Comparative
Negligence Act and the Joint Tortfeasors Contribution Law; and 3) the effect of any such allocation of fault on plaintiffs’
recovery of damages if the jury returns a verdict in their favor.
On June 3, 2011, when Abiah Jones’s death occurred, she was visiting an amusement park on a trip organized by
her charter school, PleasanTech Academy. The school is operated by the PleasanTech Academy Education Association
(Association) and is treated as a public entity for purposes of the Tort Claims Act (TCA). Her parents filed a wrongful
death action against Morey’s Pier, Inc., Morey’s Attractions, LLC, and the Morey Organization, Inc. (Morey defendants)
alleging that their daughter’s death resulted from the negligent operation of the park. Neither plaintiffs nor the Morey
defendants served a TCA notice of claim on the Association within ninety days of Abiah Jones’s death. Plaintiffs
attempted to litigate this case in Pennsylvania, but the Superior Court dismissed the complaint on March 10, 2014.
On June 3, 2013, plaintiffs filed this wrongful death and survival action in New Jersey. The Morey defendants
filed a third-party complaint against the Association and sought contribution and common-law indemnification, alleging
that its negligence was a proximate cause of Abiah Jones’s death. The Association moved for summary judgment, invoking
the TCA’s ninety-day notice of claim provision. The trial court denied the Association’s motion, finding that the TCA does
not require the service of a notice of claim as a prerequisite to contribution or common-law indemnification claims against a
joint tortfeasor that is a public entity. The Association filed a motion for leave to appeal in the Appellate Division, which
was denied. The Court subsequently granted the Association’s motion for leave to appeal. 226 N.J. 206 (2016).
HELD: When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late
notice of claim, the statute bars that defendant’s cross-claim or third-party claim for contribution and common-law
indemnification against the public entity. Accordingly, the Morey defendants’ third-party contribution and common-law
indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants
an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of
Abiah Jones’s death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to
determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and
that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs’ favor
to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association.
1. As the operator of a charter school, the Association may sue and be sued, but only to the same extent and upon the same
conditions that a public entity can be sued. The claims asserted against the Association in this case are therefore subject to
the TCA. When it enacted N.J.S.A. 59:8-8, the Legislature imposed a strict constraint on public entity liability. If notice is
not timely served, the claimant shall be forever barred from recovering against a public entity. (pp. 11-13)
2. The Court has not previously determined whether a defendant’s contribution and common-law indemnification claims
against a public entity are barred when defendant fails to timely serve notice of a tort claim. The Court concurs with the
analysis set forth in two published opinions, in which trial courts focused on N.J.S.A. 59:8-8’s plain language and
construed it to bar all claims, including contribution and indemnification claims, if the claimant failed to serve a timely
TCA notice. The Legislature did not distinguish between a plaintiff’s claim and a defendant’s cross-claim or third-party
claim. To permit a defendant to assert a contribution or indemnification claim against a public entity or employee months
or years after the plaintiff’s claim accrued would undermine the Legislature’s intent. Given that neither plaintiffs, nor the
Morey defendants, served a timely notice of claim or invoked the procedure for obtaining judicial approval of a late-served
notice, the Association is entitled to summary judgment dismissing the third-party complaint with prejudice. (pp. 14-18)
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3. The Comparative Negligence Act (CNA) and Joint Tortfeasors Contribution Law (JTCL) may mitigate the impact of the
notice requirement on a defendant whose third-party claim or cross-claim for contribution is barred. In a negligence or
strict liability action in which the question of liability is in dispute, the trial court molds the judgment based on the
factfinder’s determination of damages and allocation of fault. A defendant compelled to pay more than the percentage of
damages corresponding to the allocation of fault ordinarily has a remedy under the CNA: a claim for contribution governed
by the JTCL. Application of the CNA and JTCL is complicated when an alleged joint tortfeasor is not a defendant at the
time of trial. Even if the claims against a defendant are dismissed by the operation of a statute, apportionment of fault to
that defendant is required by the CNA and the JTCL. Allocation of a percentage of fault to a joint tortfeasor that is not a
defendant at trial may afford to a remaining defendant the practical benefit of the contribution claim to which it is entitled
under the CNA and the JTCL. (pp. 18-27)
4. In accord with the legislative policy to ensure prompt notice to public entities of potential claims against them, the TCA
bars any claims against the Association in this case. In the CNA and the JTCL, the Legislature has expressed a policy in
favor of a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.
A ruling permitting the Morey defendants to seek an allocation of fault to the Association at trial harmonizes and furthers
the statutes’ separate goals and is an equitable result in the circumstances of this case. Despite the New Jersey location of
the accident and the New Jersey domicile of all parties when that accident occurred, plaintiffs elected to bring their action
in a Pennsylvania court. When this action was instituted in New Jersey, the period for the service of a TCA notice, and the
one-year period for leave to serve a late notice had long expired. The equities thus weigh against plaintiffs, whose strategy
deprived the Morey defendants of the opportunity to preserve their right to file a cross-claim against the Association. The
procedural posture of this case allows for a fair determination of the Association’s alleged fault as the parties have long
been on notice of the Morey defendants’ intention to seek the apportionment of a percentage of fault. (pp. 27-30)
5. The Court also considers the Morey defendants’ argument that if plaintiffs prevail at trial, the court should limit the
Morey defendants’ liability for damages to any percentage of fault that the jury apportions to them. The CNA provides that
a plaintiff is entitled to collect the full amount of the damages awarded from any party that the factfinder determines to be
sixty percent or more responsible for the total damages, N.J.S.A. 2A:15-5.3(a), and affords to a defendant “compelled to
pay more than his percentage share” of the damages a contribution claim against joint tortfeasors, N.J.S.A. 2A:15-5.3(e).
The JTCL, N.J.S.A. 2A:53A-3, defines that contribution claim. As the Appellate Division recognized in Burt v. West
Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001), a joint tortfeasor’s statutory right to a dismissal of the claims
against it could disrupt the allocation scheme. To the panel deciding Burt, a ruling limiting the defendants’ liability to the
percentage allocated by the jury, even if that percentage met the sixty-percent threshold of N.J.S.A. 2A:15-5.3(a), best
furthered the Legislature’s equitable intent. The Court considers the Appellate Division’s analysis in Burt to effectively
reconcile the governing statutes. If the Morey defendants present evidence at trial that the Association was negligent and
that its negligence was a proximate cause of Abiah Jones’s death, the jury should be instructed to determine whether the
Morey defendants have met their burden of proof on those issues. If it finds that the Morey defendants have met that
burden, the jury may allocate a percentage of fault to the Association. If the jury allocates a percentage of fault to the
Association, the trial court shall mold the judgment to reduce the Morey defendants’ liability in accordance with the fault
allocated to the Association. If the jury does not find that the Morey defendants have met their burden, it should not
allocate fault to the Association. In that case, an award of damages to plaintiffs will not be affected. (pp. 30-35)
6. The Court reminds litigants that any party intending to pursue a claim against a public entity or employee subject to the
TCA must act expeditiously to preserve it. Such a party must serve a notice pursuant to the Act within ninety days of the
accrual of the claim or file an application within one year of that date for leave to serve a late notice of claim, on a showing
of extraordinary circumstances. A plaintiff that is aware of a potential cause of action against a public entity—and litigates
the case in a manner that deprives a defendant of an opportunity to serve a TCA notice on that entity—risks a reduction in
any damages award by virtue of an allocation of fault under the CNA and JTCL. A defendant that is aware of its potential
cross-claim against a public entity that may be a joint tortfeasor, but foregoes its opportunity to serve a TCA notice on that
entity, may lose the benefit of an allocation of fault to the public entity in accordance with those statutes. (pp. 35-36)
The trial court’s summary judgment determination is REVERSED and summary judgment is GRANTED to the
Association. The Morey defendants’ third-party and common-law indemnification claims are DISMISSED with prejudice.
The matter is REMANDED to the trial court for further proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON
and TIMPONE join in JUSTICE PATTERSON’s opinion.
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SUPREME COURT OF NEW JERSEY
A-75 September Term 2015
077502
TWANDA JONES, CO-ADMINISTRATOR
OF THE ESTATE OF ABIAH JONES AND
AND BYRON JONES, CO-ADMINISTRATOR
OF THE ESTATE OF ABIAH JONES,
Plaintiffs-Respondents,
v.
MOREY’S PIER, INC., MOREY’S
ATTRACTIONS, LLC, AND THE
MOREY ORGANIZATION, INC.,
Defendants-Respondents,
v.
PLEASANTECH ACADEMY EDUCATION
ASSOCIATION, INC.,
Third-Party Defendant-Appellant.
Argued February 27, 2017 – Decided July 27, 2017
On appeal from the Superior Court, Appellate
Division.
Jason D. Attwood argued the cause for
appellant (Pashman Stein, attorneys; Dawn
Attwood, of counsel; Jason D. Attwood and
Dawn Attwood, on the briefs).
John H. Osorio argued the cause for
respondents Morey’s Pier, Inc., Morey’s
Attraction, LLC, and the Morey Organization,
Inc. (Marshall Dennehey Warner Coleman &
Goggin, attorneys; John H. Osorio, Larry I.
Zucker, Adam E. Levy, and Walter F. Kawalec,
III, on the briefs).
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Heidi G. Villari argued the cause for
respondents Twanda Jones, co-administrator
of the Estate of Abiah Jones and Byron
Jones, co-administrator of the Estate of
Abiah Jones (The Beasley Firm, attorneys).
Daniel M. Vannella, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Ashley Gagnon, Deputy Attorney
General, on the brief).
Susan C. Sharpe submitted a brief on behalf
of amicus curiae New Jersey Municipal Excess
Liability Joint Insurance Fund (Dorsey &
Semrau, LLC, attorneys; Fred C. Semrau, of
counsel; Susan C. Sharpe on the brief).
Wilson D. Antoine and Gary S. Lipshutz
submitted a brief on behalf of amicus curiae
City of Newark (Willie L. Parker,
Corporation Counsel, attorney; Wilson D.
Antoine, of counsel; Wilson D. Antoine and
Gary S. Lipshutz, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal arises from the tragic death of eleven-year-old
Abiah Jones after she fell from a ride in an amusement park.
When the accident occurred, Abiah Jones was visiting the
amusement park on a school trip organized by her charter school,
PleasanTech Academy, operated by the PleasanTech Academy
Education Association (Association).
Plaintiffs Twanda Jones and Byron Jones, Abiah Jones’s
parents and the co-administrators of her estate, filed this
wrongful death action against Morey’s Pier, Inc., Morey’s
2
Attractions, LLC, and the Morey Organization, Inc. (Morey
defendants). Plaintiffs allege that their daughter’s death
resulted from the Morey defendants’ negligent operation of the
amusement park. Plaintiffs did not name the Association as a
defendant. Neither plaintiffs nor the Morey defendants served
notice of a tort claim on the Association within the ninety-day
period prescribed by the notice of claims provision of the Tort
Claims Act, N.J.S.A. 59:8-8.
The Morey defendants filed a third-party claim for
contribution and common-law indemnification against the
Association, alleging that the Association was negligent and
that its negligence was a proximate cause of Abiah Jones’s
death. The Association moved for summary judgment, invoking the
ninety-day deadline of N.J.S.A. 59:8-8. The trial court denied
the Association’s motion for summary judgment on the ground that
N.J.S.A. 59:8-8 does not apply to contribution or common-law
claims asserted by defendants against public entities. We
granted the Association’s motion for leave to appeal.
The appeal requires that we consider three issues. First,
we determine whether N.J.S.A. 59:8-8 bars the Morey defendants
from asserting contribution and common-law indemnification
claims against the Association, which is treated as a public
entity for purposes of the Tort Claims Act. Second, we decide
whether the jury should be permitted to allocate a percentage of
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fault to the Association pursuant to the Comparative Negligence
Act, N.J.S.A. 2A:15-5.1 to -5.8, and the Joint Tortfeasors
Contribution Law, N.J.S.A. 2A:53A-1 to -5, notwithstanding the
parties’ failure to serve a notice of claim on the Association
in accordance with N.J.S.A. 59:8-8. Third, we consider the
effect of any allocation of fault by the jury to the charter
school on plaintiffs’ recovery of damages, in the event that the
jury returns a verdict in plaintiffs’ favor and the trial court
molds the judgment in accordance with N.J.S.A. 2A:15-5.2(d).
We reverse the trial court’s determination. The plain
language of N.J.S.A. 59:8-8 requires parties such as the Morey
defendants seeking to assert a claim against a public entity to
serve a notice of claim within ninety days of the date on which
the cause of action accrues. Because the Morey defendants did
not serve a timely notice of claim on the Association, their
third-party contribution and common-law indemnification claims
against the Association are barred.
We hold, however, that the trial court should afford the
Morey defendants an opportunity to present evidence at trial
that the Association was negligent and that its negligence was a
proximate cause of Abiah Jones’s death. If the Morey defendants
present prima facie evidence, the trial court should instruct
the jury to determine whether any fault should be allocated to
the Association in accordance with N.J.S.A. 2A:15-5.2. Should
4
the jury find that the Association was negligent and that its
negligence was a proximate cause of Abiah Jones’s death, the
trial court should mold any judgment entered in plaintiffs’
favor pursuant to N.J.S.A. 2A:15-5.2(d) to reduce the damages
awarded to plaintiffs by the percentage of fault that the jury
allocates to the Association.
I.
We base our account of the facts on the allegations set
forth in plaintiffs’ complaint and other materials in the
summary judgment record presented to the trial court.
Abiah Jones was a student at PleasanTech Academy, a charter
school in Pleasantville operated by the Association in
accordance with a charter granted by the New Jersey Department
of Education. According to plaintiffs, to celebrate the
achievements of its honor students at the close of the school
year, PleasanTech Academy organized a school trip to an
amusement park in Wildwood owned and operated by the Morey
defendants.1 The school trip took place on June 3, 2011.
Plaintiffs allege that Abiah Jones was killed after falling
from the “Giant Wheel” amusement ride, a Ferris wheel that is,
at its highest point, almost one hundred sixty feet tall. They
1 In its third-party complaint, the Morey defendants assert that
defendant Morey’s Pier, Inc., has not existed since 1997, when
it became part of the Morey Organization.
5
assert that at the time of the accident, the child was riding
alone in a carriage on the “Giant Wheel,” contrary to the Morey
defendants’ operating procedures, which required at least two
riders in each carriage, and that high winds made the ride
unsafe. Plaintiffs claim that the Morey defendants failed to
warn of the dangerous wind conditions, failed to provide
adequate safety instructions, failed to install proper safety
measures to prevent falls from the “Giant Wheel” carriages,
inadequately maintained the locks on the carriages, and failed
to lock the door on the carriage from which the child fell.
It is undisputed that neither plaintiffs nor the Morey
defendants served a Tort Claims Act notice of claim on the
Association pursuant to N.J.S.A. 59:8-8 within ninety days of
Abiah Jones’s death.
Plaintiffs initially attempted to litigate this case in a
Pennsylvania forum. On July 7, 2011, they filed a complaint in
the Court of Common Pleas of Philadelphia County, Pennsylvania.
The Morey defendants moved to dismiss the complaint on forum non
conveniens grounds. They relied on the New Jersey site of the
accident; the New Jersey residence of Abiah Jones and her
mother, plaintiff Twanda Jones; the New Jersey locations of
PleasanTech Academy and the amusement park; and the absence of
any nexus between Pennsylvania and this case other than the
Pennsylvania domicile of the child’s father, plaintiff Byron
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Jones.2 The Morey defendants agreed to waive any statute of
limitations defense and accept service of process in New Jersey.
Although the Pennsylvania trial court denied the Morey
defendants’ motion, the Superior Court of Pennsylvania reversed
the trial court’s determination and dismissed the complaint
without prejudice on March 10, 2014.
On June 3, 2013, two years after their daughter’s death,
plaintiffs filed this wrongful death and survival action. The
Morey defendants filed a third-party complaint against the
Association. They claimed that the Association negligently
organized, supervised and chaperoned the field trip to the
amusement park, and that the Association’s negligence
proximately caused Abiah Jones’s death. The Morey defendants
sought contribution pursuant to the Joint Tortfeasors
Contribution Law, as well as common-law indemnification and
other relief.
The Association moved for summary judgment pursuant to Rule
4:46-2. It contended that because defendants served no notice
of claim under N.J.S.A. 59:8-8, the Tort Claims Act barred the
assertion of the contribution and common-law indemnification
claims. The Association suggested to the motion judge that at
trial, the jury should be permitted to allocate fault to it
2 At the time of Abiah Jones’s death, her father was also a New
Jersey resident.
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pursuant to N.J.S.A. 2A:15-5.2, notwithstanding the dismissal of
the Morey defendants’ cross-claims against it. The Morey
defendants countered that their cross-claims were not barred by
N.J.S.A. 59:8-8 because that provision applies only to claims
asserted by plaintiffs. Plaintiffs urged the trial court to
reserve decision on the question of an allocation of fault to
the Association.
The trial court denied the Association’s summary judgment
motion. Declining to follow case law to the contrary, the court
interpreted N.J.S.A. 59:8-8 to limit only a plaintiff’s right to
assert a claim against a public entity. It concluded that
N.J.S.A. 59:8-8 does not require the service of a notice of
claim as a prerequisite to a defendant’s contribution or common-
law indemnification claims against a joint tortfeasor that is a
public entity.
The Association filed a motion for leave to appeal in the
Appellate Division. An Appellate Division panel denied the
motion. We granted the Association’s motion for leave to
appeal. 226 N.J. 206 (2016). We also granted the motions of
the City of Newark, the New Jersey Municipal Excess Liability
Insurance Fund, and the Attorney General to appear as amici
curiae.
II.
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The Association urges the Court to reverse the trial
court’s determination. It states that as a charter school, it
is entitled to the protection of the Tort Claims Act’s notice
provision, N.J.S.A. 59:8-8. It contends that the trial court’s
decision thwarts the Legislature’s objectives in enacting the
Tort Claims Act. The Association contends that a ruling
permitting the jury to allocate a percentage of fault to it
pursuant to N.J.S.A. 2A:15-5.2 would afford the Morey defendants
an opportunity to reduce their liability to plaintiffs, as a
substitute for their third-party claim. It urges the Court to
refrain from imposing any obligation on it to provide discovery
to the parties in this case.
The Morey defendants assert that plaintiffs’ failure to
serve a notice of claim against the Association should not
deprive them of their right to assert contribution and
indemnification claims against that entity. They argue that if
the Court bars their third-party claims under N.J.S.A. 59:8-8,
it should authorize the jury to apportion fault to the
Association. The Morey defendants seek a ruling directing the
trial court to mold any judgment in plaintiffs’ favor, so that
their share of an award of damages will not exceed the
percentage of fault allocated to them by the jury. They also
ask the Court to ensure that if their claims against the
9
Association are dismissed, the Association will provide
discovery to the parties.
Citing N.J.S.A. 2A:15-5.3(a), plaintiffs contend that the
liability of the Morey defendants should not be limited to the
percentage of fault that the jury allocates to those defendants
if that percentage is sixty percent or more. They argue that
N.J.S.A. 2A:15-5.3(a) is unambiguous and that they are entitled
to one hundred percent of any damages that the jury awards.
Amicus curiae the City of Newark argues that N.J.S.A. 59:8-
8 bars any party that fails to comply with the Tort Claims Act’s
notice provisions from suing a public entity, even if that
public entity is a joint tortfeasor that may otherwise be liable
for contribution. The City of Newark urges the Court to
authorize the factfinder to allocate fault to the public entity
that is immune from suit and to limit any award of damages
against the private tortfeasor in accordance with the percentage
of fault allocated by the factfinder, even when that percentage
constitutes or exceeds sixty percent.
Amicus curiae New Jersey Municipal Excess Liability Joint
Insurance Fund similarly contends that N.J.S.A. 59:8-8 bars any
claim against a public entity unless a notice of claim is served
and supports the allocation of a percentage of liability to an
entity that is immune under the Tort Claims Act.
10
Amicus curiae the Attorney General asserts that the Tort
Claims Act mandates a determination that the Association is
immune from all claims. The Attorney General argues that the
Court may reconcile the statutes at issue by permitting the jury
to apportion a percentage of fault to the Association, and
limiting the Morey defendants’ liability to the percentage of
fault that the jury allocates to it.
III.
A.
All parties agree that neither plaintiffs nor the Morey
defendants served a Tort Claims Act notice on the Association
within the time period prescribed by N.J.S.A. 59:8-8.
Accordingly, no party contended before the trial court, or
argues here, that facts material to the summary judgment motion
were in dispute; the parties contest only the legal consequences
of undisputed facts. See Rule 4:46-2(c) (providing that summary
judgment should be awarded if record demonstrates “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”).
When, as here, “no issue of fact exists, and only a
question of law remains, this Court affords no special deference
to the legal determinations of the trial court.” Cypress Point
Condo. Ass’n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016)
11
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)). We review the trial court’s decision de
novo.
B.
As the operator of a charter school, the Association may
“[s]ue and be sued, but only to the same extent and upon the
same conditions that a public entity can be sued.” N.J.S.A.
18A:36A-6(b). The claims asserted against the Association in
this case are therefore subject to the Tort Claims Act.
The Tort Claims Act provides “broad but not absolute
immunity for all public entities.” Marcinczyk v. N.J. Police
Training Comm’n, 203 N.J. 586, 597 (2010). The statute is
intended “to bring uniformity to the law in this State with
respect to sovereign immunity to tort claims enjoyed by public
entities.” Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super.
265, 268 (Law Div. 1994). The Act’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)).
When it enacted N.J.S.A. 59:8-8, the Legislature imposed a
strict constraint on public entity liability. That provision
mandates that “[a] claim relating to a cause of action for death
or for injury or damage to person or to property shall be
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presented . . . not later than the 90th day after accrual of the
cause of action.” N.J.S.A. 59:8-8. If notice is not timely
served in accordance with the statute, “[t]he claimant shall be
forever barred from recovering against a public entity.” Ibid.;
see also D.D., supra, 213 N.J. at 146 (explaining consequences
of party’s failure to meet ninety-day deadline); Rogers v. Cape
May Cty. Office of Pub. Defs., 208 N.J. 414, 420 (2011) (noting
that Tort Claims Act establishes procedures for bringing claims,
which “include filing of a timely notice”).3
N.J.S.A. 59:8-8 is intended
(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 State in advance
as to the indebtedness or liability that it
may be expected to meet.
3 N.J.S.A. 59:8-9 authorizes a claimant, “within one year after
the accrual of his claim” to file an application for leave to
serve a late tort claims notice. That application may be
granted “in the discretion of a judge of the Superior Court,” if
there is a showing of “sufficient reasons constituting
extraordinary circumstances” for the claimant’s failure to
timely serve the notice, and if the public entity will not be
“substantially prejudiced thereby.” N.J.S.A. 59:8-9; see also
D.D., supra, 213 N.J. at 134-35 (applying N.J.S.A. 59:8-9);
McDade v. Siazon, 208 N.J. 463, 477 (2011) (same); Rogers,
supra, 208 N.J. at 427 (same). In this case, neither plaintiffs
nor the Morey defendants filed an application pursuant to
N.J.S.A. 59:8-9.
13
[McDade v. Siazon, 208 N.J. 463, 475-76
(2011) (internal quotation marks omitted) (
quoting Beauchamp v. Amedio, 164 N.J. 111,
121-22 (2000)).]
Thus, when it enacted the notice of claim provision, the
Legislature sought to afford to public entities an “opportunity
to plan for potential liability and correct the underlying
condition.” Id. at 476.
We have not previously determined whether a defendant’s
contribution and common-law indemnification claims against a
public entity are barred when it fails to serve a notice of tort
claim within the time limit imposed by N.J.S.A. 59:8-8. Our
courts’ published decisions addressing that issue reach
divergent results.
In three published decisions, the Appellate Division and
Law Division viewed a defendant’s claims for contribution and
indemnification to be beyond the reach of N.J.S.A. 59:8-8. See
S.P. v. Collier High Sch., 319 N.J. Super. 452, 475 (App. Div.
1999) (construing N.J.S.A. 59:8-8 to authorize defendant to file
third-party action for contribution, common-law indemnification
and contractual indemnification against public entity, despite
defendant’s failure to comply with N.J.S.A. 59:8-8’s notice
requirement); Ezzi v. De Laurentis, 172 N.J. Super. 592, 600
(Law Div. 1980) (“[P]laintiff’s failure to comply with the time
and notice provisions of N.J.S.A. 59:8-8 will not bar
14
defendants’ third-party claim for contribution against the
municipality.”); Markey v. Skog, 129 N.J. Super. 192, 200 (Law
Div. 1974) (holding that because contribution claim is “inchoate
right which does not ripen into a cause of action until [the
defendant] has paid more than his pro rata portion of the
judgment obtained against him by the plaintiff,” defendant may
assert that right despite failure to serve notice of claim under
N.J.S.A. 59:8-8); see also D’Annunzio v. Wildwood Crest, 172
N.J. Super. 85, 88, 91-92 (App. Div. 1980) (relying on Markey to
hold that N.J.S.A. 59:9-2(e), which prohibits actions “under a
subrogation provision in an insurance contract against a public
entity or public employee,” does not bar defendant’s
contribution claim for subrogation).
In two other published opinions, trial courts construed
N.J.S.A. 59:8-8 to bar all claims, including contribution and
indemnification claims, if the claimant failed to serve a Tort
Claims Act notice within the ninety-day period set forth in the
statute. See Estate of Kingan v. Estate of Hurston, 139 N.J.
Super. 383, 384-85 (Law Div. 1976) (holding that “[t]here is no
sense in the Legislature carefully prescribing that a notice be
given to governmental agencies if the courts can emasculate the
statute’s intent by judicial construction” and dismissing third-
party claims against public entity given claimant’s failure to
serve notice of claim under N.J.S.A. 59:8-8); Cancel v. Watson,
15
131 N.J. Super. 320, 322 (Law Div. 1974) (barring third-party
contribution and indemnification claims against municipality
based on noncompliance with terms of N.J.S.A. 59:8-8).
We concur with the analysis set forth in Kingan and Cancel,
in which the courts properly focused on N.J.S.A. 59:8-8’s plain
language. See Wilson v. City of Jersey City, 209 N.J. 558, 572
(2012) (noting that in statutory construction, “[o]ur paramount
goal . . . is to give effect to the Legislature’s intent”
(citing State v. Maguire, 84 N.J. 508, 514 (1980)), and that
“[w]hen that intent is revealed by a statute’s plain language --
ascribing to the words used ‘their ordinary meaning and
significance’ -- we need look no further” (quoting DiProspero v.
Penn, 183 N.J. 477, 492 (2005))).
The statute is expansively phrased. The Legislature did
not distinguish between a plaintiff’s claim and a defendant’s
cross-claim or third-party claim against a public entity. See
N.J.S.A. 59:8-8. It did not exempt from the tort claims notice
requirement a defendant’s claim for contribution and
indemnification, or any other category of claims. See ibid. In
short, the statute’s import is clear: it governs contribution
and indemnification claims brought by defendants, as it governs
direct claims asserted by plaintiffs.
Were we to interpret N.J.S.A. 59:8-8 to permit a defendant
to assert a contribution or indemnification claim against a
16
public entity or employee months or years after the plaintiff’s
claim accrued, we would undermine the Legislature’s intent: to
permit public entities to promptly investigate claims, correct
the conditions or practices that gave rise to the claim, prepare
a defense, and assess the need for reserves. McDade, supra, 208
N.J. at 475-76; Beauchamp, supra, 164 N.J. at 121-22. Moreover,
a judicial determination excluding contribution and
indemnification claims from the tort claims notice requirement
would contravene the public policy stated by the Legislature in
the Tort Claims Act itself: “public entities shall only be
liable for their negligence within the limitations of this act
and in accordance with the fair and uniform principles
established herein.” N.J.S.A. 59:1-2. “In light of that
overriding policy, the [Tort Claims Act] has been construed to
allow the finding of liability against public entities only when
permitted by the Act.” Frugis v. Bracigliano, 177 N.J. 250, 275
(2003). The Tort Claims Act does not permit the imposition of
liability on the Association by direct claim, cross-claim, or
third-party claim, and we do not revise its terms.
Accordingly, we hold that when a defendant does not serve a
timely notice of claim on a public entity pursuant to N.J.S.A.
59:8-8 and is not granted leave to file a late notice of claim
under N.J.S.A. 59:8-9, the Tort Claims Act bars that defendant’s
17
cross-claim or third-party claim for contribution and common-law
indemnification against the public entity.
Given that neither plaintiffs nor the Morey defendants
served a timely notice of claim under N.J.S.A. 59:8-8 or invoked
N.J.S.A. 59:8-9’s procedure for obtaining judicial approval of a
late-served tort claims notice, the Association is entitled to
summary judgment dismissing the Morey defendants’ third-party
complaint with prejudice.
C.
1.
When N.J.S.A. 59:8-8 is applied to dismiss a defendant’s
cross-claim or third-party complaint against a public entity or
public employee, it may deprive a defendant of its right to
pursue a claim against a joint tortfeasor before the defendant
is aware that the claim exists. As the Appellate Division
observed in S.P., supra, a defendant “may not even learn that he
has a potential contribution claim within this period, since the
plaintiff may not file suit until well after the 90-day period.”
319 N.J. Super. at 475 (quoting Perello v. Woods, 197 N.J.
Super. 539, 546 (Law Div. 1984)).
In some circumstances, however, the statutory scheme for
the allocation of fault to joint tortfeasors, prescribed by the
Comparative Negligence Act and Joint Tortfeasors Contribution
Law, may mitigate the impact of N.J.S.A. 59:8-8 on a defendant
18
whose third-party claim or cross-claim for contribution is
barred.4 The Comparative Negligence Act was designed to further
the principle that “[i]t is only fair that each person only pay
for injuries he or she proximately caused.” Fernandes v. DAR
Dev. Corp., 222 N.J. 390, 407 (2015) (quoting Waterson v. Gen.
Motors Corp., 111 N.J. 238, 267 (1988)). To that end, in a
negligence or strict liability action “in which the question of
liability is in dispute,” the trier of fact makes two
determinations:
(1) The amount of damages which would be
recoverable by the injured party regardless of
any consideration of negligence or fault, that
is, the full value of the injured party’s
damages.
(2) The extent, in the form of a percentage,
of each party’s negligence or fault. The
percentage of negligence or fault of each
party shall be based on 100% and the total of
all percentages of negligence or fault of all
the parties to a suit shall be 100%.
[N.J.S.A. 2A:15-5.2(a).]
4 The common-law indemnification claim asserted by the Morey
defendants and dismissed pursuant to N.J.S.A. 59:8-8 in this
case is distinct from defendants’ statutory contribution claim.
Neither the Comparative Negligence Act nor the Joint Tortfeasors
Contribution Act governs a common-law indemnification claim, and
an allocation of fault pursuant to those statutes is unrelated
to such a claim. See Gulf Oil Corp. v. ACF Indus., Inc., 221
N.J. Super. 420, 431 (App. Div. 1987), certif. denied, 111 N.J.
613 (1988); White v. Newark Morning Star Ledger, 245 N.J. Super.
606, 612 (Law Div. 1990).
19
After the factfinder determines the total damages and
allocates fault in accordance with N.J.S.A. 2A:15-5.2(a), the
trial court molds the judgment based on those findings.
N.J.S.A. 2A:15-5.2(d). In that calculation, the judge reduces
the damages “by the percentage of negligence attributable to the
person recovering.” N.J.S.A. 59:9-4. Under another provision,
the plaintiff may recover “[t]he full amount of the damages from
any party determined by the trier of fact to be 60% or more
responsible for the total damages.” N.J.S.A. 2A:15-5.3(a). The
plaintiff’s recovery from “any party determined by the trier of
fact to be less than 60% responsible for the total damages” is
limited to “[o]nly that percentage of the damages directly
attributable to that party’s negligence or fault,” as determined
by the factfinder. N.J.S.A. 2A:15-5.3(c).
A defendant compelled to pay more than the percentage of
damages corresponding to the jury’s allocation of fault to that
defendant ordinarily has a remedy under the Comparative
Negligence Act: a claim for “contribution from the other joint
tortfeasors.” N.J.S.A. 2A:15-5.3(e). The contribution claim is
governed by the Joint Tortfeasors Contribution Law, in which the
Legislature declared that “[t]he right of contribution exists
among joint tortfeasors.” N.J.S.A. 2A:53A-2. “The Joint
Tortfeasors Contribution Law was enacted to promote the fair
sharing of the burden of judgment by joint tortfeasors and to
20
prevent a plaintiff from arbitrarily selecting his or her
victim.” Holloway v. State, 125 N.J. 386, 400-01 (1991)
(citation omitted). The statute provides that where an injury
is caused by the conduct of joint tortfeasors, and a joint
tortfeasor pays the judgment “in whole or in part,” that party
shall be entitled to recover contribution from other joint
tortfeasors “for the excess so paid over his pro rata share.”
N.J.S.A. 2A:53A-3.
Applied together, “[t]he Comparative Negligence Act and the
Joint Tortfeasors Contribution Law comprise the statutory
framework for the allocation of fault when multiple parties are
alleged to have contributed to the plaintiff’s harm.” Town of
Kearny v. Brandt, 214 N.J. 76, 96 (2013). As this Court has
observed:
The modified comparative negligence approach
reflected by our statute provides a fairer
framework for imposing liability,
apportioning losses, and allowing redress.
Our modified joint and several liability
statute also promotes redress to plaintiffs
and provides for a fair apportionment of
damages as among joint defendants. When
applied together, the statutes implement New
Jersey’s approach to fair apportionment of
damages among plaintiffs and defendants, and
among joint defendants.
[Erny v. Estate of Merola, 171 N.J. 86, 98-
99 (2002) (citations omitted).]
The two statutes “promote ‘the distribution of loss in
proportion to the respective faults of the parties causing that
21
loss.’” Town of Kearny, supra, 214 N.J. at 102 (internal
quotation marks omitted) (quoting Brodsky v. Grinnell Haulers,
Inc., 181 N.J. 102, 114 (2004)). They ensure that damages are
ordinarily apportioned to joint tortfeasors in conformity to the
factfinder’s allocation of fault. Ibid.
2.
A trial court’s application of the Comparative Negligence
Act and Joint Tortfeasors Contribution Law is complicated when,
as here, a party alleged to be a joint tortfeasor is not a
defendant at the time of trial. In a series of decisions, our
courts have considered whether a factfinder may apportion fault
in such a setting.
In general, “our courts have barred apportionment where, as
a matter of law, [the person or entity to whom an allocation of
fault is sought] could not under any circumstances be a joint
tortfeasor under N.J.S.A. 2A:53A-2.” Town of Kearny, supra, 214
N.J. at 102 (citing Brodsky, supra, 181 N.J. at 115).5 In other
5 In Ramos v. Browning Ferris, the Appellate Division rejected
the argument of the defendant supplier of workplace equipment
that the jury should allocate fault to the plaintiff’s employer,
which was immune from civil liability under any circumstances
under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -146.
Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 194 N.J.
Super. 96, 106 (App. Div. 1984), rev’d on other grounds, 103
N.J. 177 (1986). In Bencivenga v. J.J.A.M.M., Inc., the
Appellate Division denied a defendant’s request that the jury
allocate fault to an unidentified individual who had assaulted
the plaintiff on the defendant’s premises and was named in the
complaint as a fictitious defendant pursuant to Rule 4:26-4.
22
decisions, however, this Court and the Appellate Division have
permitted a factfinder to allocate fault to an individual or
entity, notwithstanding the fact that at the time of trial that
individual or entity is not liable to pay damages to the
plaintiff, and the allocation may reduce the amount of damages
awarded to the plaintiff.
This Court’s first decision recognizing that principle was
Young v. Latta, 123 N.J. 584 (1991). There, the plaintiff in a
medical malpractice action settled with one physician defendant
and proceeded to trial against another physician. Id. at 596-
97. Although the non-settling physician had not asserted a
contribution claim against the settling defendant, the Court
permitted the jury to allocate fault to the settling defendant.
Ibid. It held that “a non-settling defendant may seek a credit
in every case in which there are multiple defendants, whether or
not a cross-claim for contribution has been filed.” Id. at 596.
The Court noted that “a non-settling defendant’s right to a
258 N.J. Super. 399, 406-07 (App. Div.), certif. denied, 130
N.J. 598 (1992). But see Krzykalski v. Tindall, 448 N.J. Super.
1, 8 (App. Div. 2016) (finding that jury may apportion fault to
uninsured motorist even if not labeled “party”), certif.
granted, ___ N.J. ___ (2017); Cockerline v. Menendez, 411 N.J.
Super. 596, 619 (App. Div.) (“[T]o preclude defendants from
seeking an apportionment of liability against the phantom
[defendants] . . . frustrates the purposes of the joint
tortfeasor and comparative fault law. The trial court erred
when it precluded the jury from making such an apportionment.”),
certif. denied, 201 N.J. 499 (2010).
23
credit [for the percentage of fault allocated to the settling
defendant] takes the place of contribution rights extinguished
by the settlement.” Id. at 595; see also Kranz v. Schuss, 447
N.J. Super. 168, 181-82 (App. Div.) (holding that “[t]he
equitable result is to permit defendants to have any judgment
that plaintiffs may secure against them reduced by the amount of
fault a jury attributes” to New York defendants, not subject to
New Jersey jurisdiction, who settled separate action in New
York), certif. denied, 228 N.J. 424 (2016).
The allocation procedure discussed in Young, supra, has
been held to govern a range of circumstances beyond the
settling-defendant situation in which that case arose. 123 N.J.
at 586. In Brodsky, supra, this Court reversed a motor vehicle
negligence judgment and remanded for a new trial on the ground
that the trial court improperly gave the jury an ultimate-
outcome instruction that a defendant whose fault was found to be
sixty percent or more would be liable for the total damages
awarded. 181 N.J. at 113-16. In reaching that holding, the
Court noted that the jury should assess the fault of an
uninsured driver notwithstanding the trial court’s dismissal of
the claims against that driver because those claims were
discharged in bankruptcy. Ibid.In Town of Kearny, supra, 214 N.J. at 103-04, although the
statute of repose, N.J.S.A. 2A:14-1.1(a), barred the claims
24
against a defendant in a construction dispute, we authorized the
allocation of fault to that defendant at trial. There, we noted
that “apportionment of fault under the Comparative Negligence
Act and the Joint Tortfeasors Contribution Law does not turn on
whether the plaintiff is in a position to recover damages from
the defendant at issue” and that apportionment is not
necessarily barred by virtue of “statutory constraints on a
plaintiff’s ability to recover from a given defendant.” Id. at
103 (citing Brodsky, supra, 181 N.J. at 116; Bolz v. Bolz, 400
N.J. Super. 154, 161-62 (App. Div. 2008); Johnson v.
Mountainside Hosp., 239 N.J. Super. 312, 319 (App. Div.),
certif. denied, 122 N.J. 188 (1990)). In Town of Kearny, the
remaining defendants were entitled to an allocation of fault
against the defendant dismissed pursuant to the statute of
repose, with any allocation to the dismissed party reducing the
award of damages to the plaintiff. Id. at 103-04.
The appellate panel deciding Bolz, supra, 400 N.J. Super.
at 159-60, considered the interplay of the Tort Claims Act, the
Comparative Negligence Act and the Joint Tortfeasors
Contribution Law. In Bolz, the Tort Claims Act barred both the
plaintiff and a defendant from asserting claims against a public
entity and public employee because the plaintiff was found not
to have sustained an injury meeting the statutory criteria of
N.J.S.A. 59:9-2(d). Id. at 160-61. The panel held that the
25
defendant “was entitled to have the jury determine each party’s
percentage of negligence or fault in causing the injury,” and
that if that defendant was determined to be less than sixty
percent at fault, “he would be responsible to pay damages only
for his percentage of fault.” Id. at 160.
In Johnson, supra, 239 N.J. Super. at 319-20, another
appellate panel extended the allocation principle to a setting
in which a joint tortfeasor remained a defendant at trial but
was not liable to pay damages in excess of a statutory limit.
There, a section of the Charitable Immunity Act, N.J.S.A.
2A:53A-7 to -11, imposed a cap on the quantum of damages that
could be imposed on a hospital. Ibid. Despite that cap, the
Appellate Division held that the jury was permitted to allocate
a percentage of fault to the hospital, potentially reducing the
total damages to be awarded to the plaintiff. Ibid.Our courts have thus held in several settings that even if
the claims against a defendant are dismissed by virtue of the
operation of a statute, apportionment of fault to that defendant
is required by the Comparative Negligence Act and the Joint
Tortfeasors Contribution Law. See Town of Kearny, supra, 214
N.J. at 103; Brodsky, supra, 181 N.J. at 116-18; Bolz, supra,400 N.J. Super. at 159-60; Burt v. W. Jersey Health Sys., 339
N.J. Super. 296, 304-05 (App. Div. 2001). As those decisions
recognize, allocation of a percentage of fault to a joint
26
tortfeasor that is not a defendant at trial may afford to a
remaining defendant the practical benefit of the contribution
claim to which it is entitled under the Comparative Negligence
Act, N.J.S.A. 2A:15-5.3(e), and the Joint Tortfeasors
Contribution Law, N.J.S.A. 2A:53A-2, -3.
3.
Against that backdrop, we consider whether the objectives
of the Tort Claims Act, the Comparative Negligence Act and the
Joint Tortfeasors Contribution Law are furthered by an
allocation of fault to the Association if the Morey defendants
present prima facie evidence at trial that negligent conduct by
the Association was a proximate cause of Abiah Jones’s death.
When, as here, we construe multiple statutes, we follow the
principle that “[s]tatutes that deal with the same matter or
subject should be read in pari materia and construed together as
a unitary and harmonious whole.” St. Peter’s Univ. Hosp. v.
Lacy, 185 N.J. 1, 14-15 (2005) (internal quotation marks
omitted) (quoting In re Adoption of a Child by W.P. & M.P., 163
N.J. 158, 182 (2000) (Poritz, C.J., dissenting)).
In accord with the legislative policy to ensure prompt
notice to public entities of potential claims against them, the
Tort Claims Act bars any claims against the Association in this
case. N.J.S.A. 59:8-8. In the allocation provisions of the
Comparative Negligence Act, and the contribution right created
27
by the Joint Tortfeasors Contribution Law, the Legislature has
expressed a policy in favor of “a fair apportionment of damages
as among joint defendants” in accordance with the factfinder’s
allocation of fault. Erny, supra, 171 N.J. at 99; see also
N.J.S.A. 2A:15-5.2(d), -5.3(e); N.J.S.A. 2A:53A-2, -3. A ruling
permitting the Morey defendants to seek an allocation of fault
to the Association at trial harmonizes and furthers the three
statutes’ separate goals.
Authorizing the Morey defendants to seek an allocation of
fault to the Association is an equitable result in the
circumstances of this case. Despite the New Jersey location of
the accident and the New Jersey domicile of all parties when
that accident occurred, plaintiffs elected to bring their action
in a Pennsylvania court which may not have had personal
jurisdiction over the Association, the operator of a New Jersey
charter school. When the Pennsylvania appellate court granted
defendants’ motion to dismiss on forum non conveniens grounds,
and this action was finally instituted in a New Jersey court,
the ninety-day period for the service of a Tort Claims Act
notice on the Association under N.J.S.A. 9:2-2, and the one-year
period for moving before a Superior Court judge for leave to
serve a late notice under N.J.S.A. 9:2-2, had long expired. The
equities thus weigh against plaintiffs, whose Pennsylvania
strategy thus deprived the Morey defendants of the opportunity
28
to preserve their right to file a cross-claim against the
Association.
Moreover, the procedural posture of this case allows for a
fair determination of the Association’s alleged fault. The
parties have long been on notice of the Morey defendants’
intention to seek the apportionment of a percentage of fault to
the Association at trial.6 Limited discovery, overseen by the
trial court in accordance with the court rules, will afford the
Morey defendants the opportunity to prove the fault of the
Association and give plaintiff the opportunity to gather
evidence to oppose those proofs.7
6 In Young, supra, the Court stressed the importance of notice
to the plaintiff, “as early in the case as possible,” that a
non-settling defendant would seek an allocation of fault to a
settling defendant, and cautioned courts and parties that a non-
settling defendant’s delay in providing that notice may bar the
allocation. 123 N.J. at 597. Rule 4:7-5, which codifies the
allocation procedure set forth in Young, requires that the
plaintiff be “fairly apprised prior to trial that the liability
of the settling defendant remained an issue and was accorded a
fair opportunity to meet that issue at trial.” R. 4:7-5(c); see
also Pressler & Verniero, Current N.J. Court Rules, comment 2.2
on R. 4:7-5 (2017). A defendant should similarly provide prompt
notice to the plaintiff and other defendants that it intends to
seek an allocation of fault to a joint tortfeasor dismissed from
the action by virtue of N.J.S.A. 59:8-8.
7 We do not agree with the Morey defendants that the Association
should remain a defendant in this case in order to provide
discovery. The Association need not be a defendant in order to
be subject to discovery. See, e.g., R. 4:14-7(a) (authorizing
service of subpoena on witness for deposition and production of
documents). On remand, the trial court should ensure that the
Association responds to all parties’ reasonable requests for
discovery.
29
Accordingly, if the Morey defendants present prima facie
evidence of the Association’s negligence when the case proceeds
to trial, the trial court should instruct the jury to determine
whether the Morey defendants have proven by a preponderance of
the evidence that the Association was negligent and that its
negligence was a proximate cause of Abiah Jones’s injuries and
death.8
4.
Finally, we consider the Morey defendants’ argument that if
plaintiffs prevail at trial and the trial court molds the
judgment pursuant to N.J.S.A. 2A:15-5.2(d), the court should
limit the Morey defendants’ liability for damages to any
percentage of fault that the jury apportions to them, whether or
not that percentage meets the sixty-percent threshold of
N.J.S.A. 2A:15-5.3(a).
The Morey defendants rely on the Appellate Division’s
analysis in Burt, supra, 339 N.J. Super. at 305-10.
There, an Appellate Division panel harmonized the allocation
scheme of the Comparative Negligence Act and the Joint
8 In the limited record before the Court, the Morey defendants
do not describe the evidence that they would offer to prove that
the Association, the operator of a charter school, was negligent
and that its negligence was a proximate cause of Abiah Jones’s
amusement park accident. We take no position as to whether
there exists any such evidence in this case.
30
Tortfeasors Contribution Law with the Affidavit of Merit Act,
N.J.S.A. 2A:53A-27 to -29. Id. at 307-08. The trial court had
dismissed the plaintiff’s medical malpractice claim against the
anesthesiologists who had treated her because she did not timely
file an affidavit of merit supporting her malpractice claims
against them, as required by the Act. Id. at 302-03, 308. The
court granted the plaintiff’s application to bar the remaining
defendants, the treating hospital and nurses, from asserting at
trial that the dismissed anesthesiologists were negligent. Id.
at 309-10.
The Appellate Division reversed the trial court’s
determination. Id. at 311. It acknowledged the Legislature’s
intent, in enacting the Comparative Negligence Act and the Joint
Tortfeasors Contribution Law, was to “provide that ordinarily
each tortfeasor will respond in damages according to its own
adjudicated percentage of fault.” Id. at 304. The panel held
that the defendant hospital and nurses were entitled to an
allocation of fault against the dismissed anesthesiologists.
Id. at 307-10. It ruled that the “plaintiff’s recovery must be
diminished by” any percentage of fault attributed to the
anesthesiologists, even if the jury were to allocate sixty
percent or more of the fault to the remaining defendants. Id.
at 307. The panel reasoned:
31
To hold otherwise would deprive the
[remaining] defendants of their right to seek
contribution from [the anesthesiologists],
even though the [remaining] defendants are
found to be sixty percent or more responsible
for the total damages. Again, the [remaining]
defendants should not be prejudiced by the
failure of plaintiff to file the required
Affidavit of Merit.
[Id. at 308.]
The panel recognized that it had “denied plaintiff the
ability to recover all her damages from the [remaining]
defendants if the jury found them to be sixty percent or more
responsible for plaintiff’s damages.” Id. at 309. It
concluded, however, that its remedy was essential to preserve
the remaining defendants’ statutory right to a cross-claim in
the event that the defendants were required to pay damages in
excess of their allocated percentages of fault. Ibid.This Court has not previously decided a case in which a
party has requested that the trial court mold the judgment in
accordance with the Appellate Division’s analysis in Burt.9 In
9 Although we cited Burt in our opinions in Brodsky and Town of
Kearny on the question whether fault should be allocated to a
dismissed defendant, we did not address the molding of the
judgment in those cases, other than to note the Comparative
Negligence Act’s provisions authorizing a plaintiff to collect
one hundred percent of the damages from a defendant adjudicated
sixty percent or more at fault. See Town of Kearny, supra, 214
N.J. at 98, 102 (citing Burt on allocation issue, and noting
N.J.S.A. 2A:15-5.3(c)’s rule on liability of defendant found to
be sixty percent or more at fault); Brodsky, supra, 181 N.J. at113 (citing Burt for principle that fault should be allocated to
party dismissed from action and damages award against remaining
32
the circumstances of this case, we consider the Appellate
Division’s analysis in Burt to effectively reconcile the
governing statutes.
The Comparative Negligence Act provides that a plaintiff is
entitled to collect the full amount of the damages awarded from
any party that the factfinder determines to be sixty percent or
more responsible for the total damages. N.J.S.A. 2A:15-5.3(a).
In a different subsection of the same statute, the Act affords
to a defendant “compelled to pay more than his percentage share”
of the damages a contribution claim against joint tortfeasors.
N.J.S.A. 2A:15-5.3(e). The Joint Tortfeasors Contribution Law,
N.J.S.A. 2A:53A-3, defines that contribution claim. Considered
together, the three provisions envision an equitable outcome:
if the plaintiff collects the full amount of damages from a
defendant adjudged to be sixty percent or more but less than one
hundred percent at fault, that defendant may assert a
contribution claim against a joint tortfeasor for any damages in
excess of its allocated share. N.J.S.A. 2A:15-5.3(a), 5.3(e);
N.J.S.A. 2A:53A-3. With the benefit of its contribution claim
against joint tortfeasors, the defendant will ordinarily pay a
percentage of damages that is consonant with the factfinder’s
allocation of fault. Ibid.defendant reduced, but characterizing rule as applicable to
defendants allocated less than sixty percent of fault).
33
As the Appellate Division recognized in Burt, supra, a
joint tortfeasor’s statutory right to a dismissal of the claims
against it could disrupt the allocation scheme. 339 N.J. Super.
at 308. In that case, because the Affidavit of Merit Act barred
all claims against the anesthesiologist defendants, the
remaining defendants’ right to a contribution claim would have
been nullified if they were adjudged sixty percent negligent but
required to pay one hundred percent of the damages. Ibid. To
the panel deciding Burt, a ruling limiting the defendants’
liability to the percentage allocated by the jury, even if that
percentage met the sixty-percent threshold of N.J.S.A. 2A:15-
5.3(a), best furthered the Legislature’s equitable intent.
Ibid.In light of the Association’s dismissal pursuant to
N.J.S.A. 59:8-8, the same issue might arise at trial in this
case. If the jury were to allocate sixty percent or more of the
fault -- but less than one hundred percent -- to the Morey
defendants, and the Morey defendants were required to pay one
hundred percent of the damages under N.J.S.A. 2A:15-5.3(a), they
would similarly be denied the benefit of their contribution
claim. In the setting of this case, that result would defeat
the Legislature’s clear objective: to fairly apportion
liability for damages in accordance with the factfinder’s
34
allocation of fault. See N.J.S.A. 2A:15-5.2(a), (d), -5.3(a),
(c), (e); N.J.S.A. 2A:53A-2, -3.
Accordingly, if the Morey defendants present evidence at
trial that the Association was negligent and that its negligence
was a proximate cause of Abiah Jones’s death, the jury should be
instructed to determine whether the Morey defendants have met
their burden of proof on those issues. The jury should be
instructed that if it finds that the Morey defendants have
proven that the Association was negligent and that the
Association’s negligence was a proximate cause of Abiah Jones’s
death, it may allocate a percentage of fault to the Association
pursuant to N.J.S.A. 2A:15-5.2. If the jury allocates a
percentage of fault to the Association, the trial court shall
mold the judgment to reduce the Morey defendants’ liability to
plaintiffs in accordance with the percentage of fault allocated
to the Association. N.J.S.A. 2A:15-5.2(d). If the jury does
not find that the Morey defendants have met their burden to
prove that the Association’s negligence was a proximate cause of
the accident, it should not allocate fault to the Association.
In that case, an award of damages to plaintiffs will not be
affected.
We remind litigants and their counsel that any party –-
plaintiff or defendant -- intending to pursue a claim against a
public entity or employee subject to the Tort Claims Act must
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act expeditiously to preserve that claim. Such a party must
serve a notice pursuant to the Act within ninety days of the
accrual of the claim under N.J.S.A. 59:8-8, or file an
application within one year of that date for leave to serve a
late notice of claim, on a showing of “extraordinary
circumstances,” under N.J.S.A. 59:8-9. A plaintiff that is
aware of a potential cause of action against a public entity --
and litigates the case in a manner that deprives a defendant of
an opportunity to serve a Tort Claims Act notice on that entity
-- risks a reduction in any damages award by virtue of an
allocation of fault under the Comparative Negligence Act and the
Joint Tortfeasors Contribution Law. A defendant that is aware
of its potential cross-claim against a public entity that may be
a joint tortfeasor -- but foregoes its opportunity to serve a
Tort Claims Act notice on that entity -- may lose the benefit of
an allocation of fault to the public entity in accordance with
those statutes.
IV.
The trial court’s summary judgment determination is
reversed, and summary judgment is granted to the Association
dismissing with prejudice the Morey defendants’ third-party
contribution and common-law indemnification claims. The matter
is remanded to the trial court for further proceedings in
accordance with this opinion.
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CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON and TIMPONE join in JUSTICE PATTERSON’s
opinion.
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