In Twanda Jones v. Morey's Pier, Inc., (2017 N.J. Lexis 812, July 27, 2017) the plaintiffs brought a wrongful death lawsuit on behalf of their eleven-year-old daughter who was on a class trip to the amusement park, Morey's Pier, when she fell from a ride and died. The Morey defendants brought a third-party action against the charter school which had organized the class trip, seeking contribution and common-law indemnification. While the charter school was considered a public entity for purposes of the Torts Claims Act (TCA), neither the plaintiffs nor the defendants had served a notice of claim. The third-party defendant moved for summary judgment on the basis that a notice of claim had not been properly filed, which was denied at the trial level on the grounds that the TCA did not apply to contribution/indemnity claims asserted by the defendants against public entities.
The New Jersey Supreme Court reversed, holding that the plain language of the TCA required the Morey defendants to serve a notice of claim within 90 days of the date on which the cause of action accrues, and the failure to do so barred them from pursuing their third-party contribution/indemnity claims against a public entity. The Court also addressed the competing legislative policies of the TCA in both ensuring prompt notice to public entities of potential claims and providing fair apportionment of damages among joint defendants under New Jersey's Comparative Negligence Act (CNA) and Joint Tortfeasors Contribution Law (JTCL). The Court determined that because of the unique procedural circumstances of this case, the Morey defendants were afforded an opportunity to present evidence of the charter school's negligence at trial and the jury should be instructed to allocate any findings of fault against it in accordance with the CNA and JTCL.
Comment: The New Jersey Supreme Court expressly cautioned that both plaintiffs and defendants intending to pursue a claim against a public entity or employee subject to the TCA must act expeditiously to preserve a claim. Notice must be served pursuant to the TCA within 90 days of the accrual of the claim or an application must be filed within one year of that date for leave to serve a late notice of claim, on a showing of extraordinary circumstances. The New Jersey Supreme Court forewarned that a plaintiff who is aware of a potential cause of action against a public entity, and litigates the case in a manner that deprives a defendant an opportunity to serve a TCA notice on that entity, risks a reduction of any damages award by virtue of an allocation of fault under the CNA and JTCL. Likewise, a defendant that is aware of its potential claim against a public entity that may be a joint tortfeasor, but does not 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.
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Sara L. De Long