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Give Notice or Face the ConsequencesJonathan M. Carrillo

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (hereinafter “NJTCA”), affords municipalities a myriad of immunities and defenses that shield public entities from liability. In personal injury cases that involve a dangerous condition on public property, plaintiffs sometimes choose not to sue public entities and never comply with the notice requirements of the NJTCA. In these cases, defendants often file third-party complaints against public entities for contribution or indemnification. Although N.J.S.A. § 59:8-8 requires that a claimant present the public entity with notice of the cause of action no later than 90 days after the accrual of the cause of action, defendants/third-party plaintiffs often avoid the notice requirement and file third-party complaints against public entities well after the 90 day period elapsed. In practice, defendants/third-party plaintiffs often have no knowledge that a claim for contribution or indemnification exists against a public entity until after commencement of the underlying case and the exchange of discovery.

Nonetheless, in Jones v. Morey's Pier, Inc., 230 N.J. 142 (2017), the New Jersey Supreme Court further circumscribed the claims that can be asserted against public entities and extended the immunities and defenses public entities can rely upon. Lower courts were split on the application of the NJTCA in these circumstances, but the Supreme Court determined that the plain language interpretation that requires compliance with the notice requirements is appropriate. An interpretation that would allow 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: 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.” Id. at 157. The Court in Jones held that the NJTCA:
 
“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.”

Id.

Notably, the Court chose to interpret the NJTCA in this way even though “[w]hen 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.” Id. at 158. Thus, the Court determined that the relevant inquiry is whether a plaintiff or defendant/third-party plaintiff filed a Notice of Claim within 90 days of accrual of the cause of action. The fact that a defendant/third-party plaintiff may not have been aware of a claim and may only have discovered a claim existed against the public entity after being served with the complaint, is of no moment.

Where a plaintiff chooses or fails to file a notice of claim with an entity and that failure or decision then deprives a defendant of an opportunity to bring a cross-claim against another party subject to the NJTCA, Jones says that plaintiff 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. See Jones, 230 N.J. at 170.

Therefore, where parties fail to abide by the notice requirements of the NJTCA, defendants/third-party plaintiffs will be unable to sustain a claim for contribution or indemnification. Plaintiffs who do not file a notice of claim or who choose to litigate their case in such a way that deprives a defendant of the opportunity to file a third-party complaint face a reduction of damages. Accordingly, defense counsel should always confirm whether a notice of claim has been filed in cases involving third-party complaints against a public entity. Where no notice has been filed, Jones is yet another tool defense attorneys can rely upon in defense of their clients.