Defendant Who Fails to Timely Serve Notice of Tort Claim Cannot Sue Public Entity for Contribution or Common Law Indemnification

Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  Under the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, a tort plaintiff who fails to timely serve a notice of tort claim on a public entity is barred from suing that entity.  Until today, the Supreme Court had never decided whether a failure of a defendant who wishes to assert a claim for contribution or common law indemnification to timely serve a tort claim notice bars those types of claims.  Lower courts had split.  Today, however, in an opinion by Justice Patterson, a unanimous Supreme Court ruled that N.J.S.A. 59:8-8 applies to those types of claims.

Plaintiffs’ daughter, age 11, died when she fell from a ride at an amusement park.  She was at the amusement park on a school trip.  Her parents sued the amusement park, comprising several related defendants (collectively, “Morey’s”).  They did not sue the association that operated their daughter’s school, a charter school.  Thus, plaintiffs did not serve a notice of tort claim on the association.  Morey’s filed a third-party complaint against the association for contribution and common law indemnification, but Morey’s too did not serve a notice of tort claim.

The association moved for summary judgment based on that failure.  The Law Division denied that motion, believing that the notice of tort claim requirement did not apply to third-party complaints of this type.  The Appellate Division denied the association’s motion for leave to appeal, but the Supreme Court granted leave and reversed.

Applying the de novo standard of review, Justice Patterson found that the notice of tort claim statute was “expansively phrased.”  She observed that the Legislature did not distinguish between a plaintiff’s complaint and a defendant’s croos-claim or third-party complaint.  Nor did the Legislature carve out any category of claims from N.J.S.A. 59:8-8.  “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.”  The Court sided with two Law Division cases that had so ruled, while noting that some other lower court cases had gone the other way.  Since Morey’s had not served a timely notice of tort claim, and had not sought leave to file a late notice under N.J.S.A. 59:8-9, its claims against the association were barred.

But all was not lost for Morey’s.  Justice Patterson turned to the issue of whether, even though the association would no longer be a party to any eventual trial, Morey’s could get a verdict against it reduced by the percentage of fault that a jury might ascribe to the association, if any.  In evaluating that issue, the Court had to consider the interplay among the Tort Claims Act, 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.

Reading those statutes in pari materia, Justice Patterson canvassed a number of prior cases that had addressed this type of issue.  She concluded that it was fair, in these circumstances, to allow a jury verdict to be molded so that Morey’s was liable “only for [its] percentage of fault.”  That was the policy of the statutes involved, and although Morey’s had not served a notice of tort claim, the parties always knew that Morey’s intended to assert that the association bore some responsibility for the child’s tragic death.