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Cancel v. Watson

Decided: November 19, 1974.

DAVID CANCEL AND NIRSA CANCEL, PLAINTIFFS,
v.
RICHARD WATSON, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. CITIZENS STATE BANK AND LICEO CUBANO, THIRD-PARTY DEFENDANTS



Miller, J.c.c., Temporarily Assigned.

Miller

Defendant third-party plaintiff in this personal injury case has moved for a rehearing on the question of whether the governmental agencies here involved may be joined as third-party defendants. A prior motion by defendant to serve notice upon the governmental agencies under the New Jersey Tort Claims Act of 1972, N.J.S.A. 59:1-1 et seq., was denied on the ground that such third-party practice should not be permitted under that act. The court is now asked to reconsider this conclusion in light of Markey v. Scog, 129 N.J. Super. 192 (Law Div. 1974).

In Markey v. Scog the court was faced with a similar issue to that presented in this case. The court concluded that the right of a nonpublic defendant to seek contribution from a public entity as a joint tortfeasor depended in that case upon the claim and presentation requirements of N.J.S.A. 59:8-8. Here the question is broader and it is the opinion of this court that while notice under N.J.S.A. 59:8-8 is, of course, important, the primary question is not so much compliance with the notice provisions, but whether the claims may be joined at all. For the reasons set forth hereafter, it is determined that joinder should not be permitted.

In the instant case a "slow pitch" softball game took place on June 11, 1973 at Landis Park, Vineland, in which defendant Watson was a participant. During this game it is alleged Watson hurled or caused to be hurled a baseball bat through the air, striking plaintiff. The complaint was filed against defendant Watson in November 1973. This court in January 1974 granted defendant's motion to serve third-party complaints against the YMCA of the City of Vineland, the Citizens State Bank and the Liceo Cubano, the thrust of these complaints being failure of supervision and control. However, motions to join the City of Vineland and the Vineland Recreation Commission on similar grounds were denied as improper under the Tort Claims Act of 1972. The defendant now seeks rehearing on the following question:

May the party defendant in a personal injury action file a third-party complaint for indemnification and contribution against a public entity where the party plaintiff has failed to present a claim against such public entity directly under N.J.S.A. 59:8-8. For the reasons enunciated herein, the answer is in the negative. At the outset the court notes that joinder should be denied in the instant case for the simple reason that the statute specifically denies liability in this type of factual situation, N.J.S.A. 59:3-11; 59:2-2(b).

The New Jersey Tort Claims Act of 1972, N.J.S.A. 59:1-1 et seq., was an attempt by the Legislature to balance the inequities perpetrated through the application of sovereign immunity with the severe economic burden which total abrogation of that doctrine would impose upon public entities. Having struck what it felt to be the appropriate balance, the Legislature declared that

The act, therefore, reestablished the sovereign immunity doctrine, following the decision of the Supreme Court in Willis v. Dept. of Conservation and Economic Development, 55 N.J. 534 (1970), subject only to the provisions of the act. See Report of the Attorney General's Task Force on Sovereign Immunity 10 (May 1972).

The procedure for the commencement and prosecution of claims against public entities is set forth in chapters 8 and 9 of the act. In light of the legislative declaration set forth in chapter 1 and quoted above, these procedures must be considered as all-inclusive. The statute does recognize that a public entity may be a joint tortfeasor and limits the extent of recovery allowable against such a public entity in N.J.S.A. 59:9-3. However, nowhere in the act is the commencement of third-party proceedings against a public entity exempted from the general procedures set forth therein. It

therefore appears that a party defendant may not join a public entity as a third-party defendant unless the party plaintiff has acted affirmatively against the public entity under N.J.S.A. 59:8-8.

In addition to this negative inference, it is clear that the Legislature intended to discourage the joinder of public entities as third-party defendants. Under the act the addition of a public entity as a third-party defendant is made to create significantly greater complications than those normally associated with the addition of third parties. Initially, N.J.S.A. 59:9-1 provides that all tort claims brought against a public entity under this act shall be tried by a judge sitting without a jury. Yet, a plaintiff in other tort actions has an absolute right to demand a jury trial. N.J. Const. (1947), Art. I, par. 9. Thus, the Legislature must have felt that it was for the plaintiff alone to decide whether, in any given case, his right to a jury trial as to all issues outweighs the possibility of obtaining a judgment against the public entity in some sort of bifurcated proceeding, because only the plaintiff is given the power to serve notice upon the public entity. N.J.S.A. 59:8-8.

A second complicating factor is created by the Legislature's choice of the so-called "Mississippi rule" of comparative negligence in N.J.S.A. 59:9-4 for tort actions against public entities. This rule is in conflict with the Wisconsin rule of comparative negligence selected by the Legislature to govern in tort actions against private entities, N.J.S.A. 2A:15-5.1. The incompatability of these two rules, especially in light of the fact that they were enacted within a year of each other, can only be construed as indicating a legislative bias against joinder of tort claims against public and private entities. Only where a party plaintiff affirmatively assumes ...


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