Marcinczyk v. State of New Jersey Police Training Comm’n, 203 N.J. 586 (2010). Apart from the substantive guidance provided by the Supreme Court in this Tort Claims Act opinion by Justice Long, for a 4-3 majority of the Court, this decision points up the importance of protective cross-petitions by parties who prevail in the Appellate Division. A protective cross-petition tells the Supreme Court, in essence, that if the Court grants the petition of the loser in the Appellate Division, the Court should also consider and decide in favor of the winner below one or more other issues that would preserve that party’s victory even if Supreme Court reverses on the issue that is the subject of the petition.
Here, the Court found the Police Training Commission’s exculpatory agreement unenforceable against the plaintiff, an injured recruit, which was the issue on the petition. But the Commission had filed and the Court had granted a protective cross-petition by the State regarding other Tort Claims Act defenses, such as discretionary immunity. The Supreme Court remanded to the Appellate Division to consider those other defenses. The State could presumably have asserted those other defenses at a later stage in the case. But the protective cross-petition allowed consideration of those defenses immediately, thereby potentially saving the State time and expense in its defense of the case if the State succeeds on the remand.