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Perello v. Woods

Decided: October 11, 1984.

HERMINIA PERELLO, ET ALS., PLAINTIFFS,
v.
LAWRENCE D. WOODS, ET AL., DEFENDANTS, V. CITY OF NEWARK, THIRD-PARTY DEFENDANTS



Yanoff, J.s.c. (Retired, on Recall).

Yanoff

[197 NJSuper Page 541] The fact pattern in this case is the same as that in Ezzi v. DeLaurentis, 172 N.J. Super. 592 (Law Div.1980). Plaintiff Herminia Perello, a passenger in an automobile struck by another automobile, operated by defendant Lawrence D. Woods (Woods) started suit against him. As in Ezzi, no notice of claim against the municipality, pursuant to N.J.S.A. 59:8-8, was filed. Woods filed a third-party complaint for contribution against the City of Newark, alleging malfunction of a traffic light at an intersection. The City moved to dismiss the third-party complaint for failure of third-party plaintiff to file notice of claim pursuant to N.J.S.A. 59:8-8. In Ezzi the Court dealt with the problem involved by dismissing the third-party complaint against the municipal entity, saying, however, that it did not thereby deprive the defendant of its cause of action for contribution because the time for filing would not begin to run until judgment was actually entered against him. Id., 172 N.J. Super. at 599. Comparison of Ezzi with Markey v. Skog, 129 N.J. Super. 192 (Law Div.1974), causes me to reach a result different than that reached in Ezzi.

Markey held that a claim for contribution could be filed by a defendant against a public entity, even when the plaintiff had not complied with N.J.S.A. 59:8-8. Cancel v. Watson, 131 N.J. Super. 320 (Law Div.1974), reached a contrary conclusion. D'Annunzio v. Wildwood Crest, 172 N.J. Super. 85 (App.Div.1980), decided about the same time as Ezzi, held that Markey, rather than Cancel, correctly presented the law as to contribution against a public entity. D'Annunzio, supra, 172 N.J. Super. at 91.

Cancel read the Municipal Tort Claims Act literally, 131 N.J. Super. at 323; Markey dealt with legislative policy and the purpose behind the language of the statute. See Markey, supra, 129 N.J. Super. at 199-204. I employ the approach of Markey here, and therefore rule differently than did the Court in Ezzi.

N.J.S.A. 59:9-3 provides:

Notwithstanding any other law, in any case where a public entity or public employee acting within the scope of his employment is determined to be a joint tortfeasor:

a. The public entity or public employee shall be required to contribute to a joint tortfeasor only to the extent of the recovery provided for under this act;

b. Any payment received by the injured party on account of a settlement or a judgment paid by an alleged tortfeasor shall be reduced pro tanto from the injured party's judgment against any other tortfeasor. [Emphasis supplied.]

Cancel relied upon the limiting words in subparagraph a "only to the extent of the recovery provided for under this act," to exclude third-party practice for contribution. See 131 N.J. Super. at 326. Markey viewed the statute as carrying forth the equitable provisions of the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53-1 et seq.

Development of the Tort Claims Act in New Jersey courts parallels treatment of the Joint Tortfeasors Contribution Law. The New Jersey statute is modelled on the uniform act which contained provisions for third-party practice, Uniform Joint Tortfeasor Contribution Act ยง 3(a), 12 U.L.A. 88 (1975), omitted in the New Jersey statute. In Sattelberger v. Telep, 14 N.J. 353 (1954), the Court held that the Joint Tortfeasors

Contribution Law created a cause of action by a joint tortfeasor who pays more than his pro rata share of damages, though not named as a defendant in the original action. Id., 14 N.J. at 362. The right to contribution arises after payment by the defendant. Id., 14 N.J. at 366. Nevertheless, in Sattelberger the Court stated that a defendant could bring a third party into the original proceedings through third-party practice, noting that the provision in the Uniform Act was optional to accommodate those states which already had provisions for such practice. Id., 14 N.J. at 369.

In New Jersey a joint tortfeasor may be brought in by a defendant for the purpose of obtaining contribution under R. 4:8-1. Pressler, Current New Jersey ...


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