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BOONE v. BEACON BLDG. CORP.

July 23, 1985

MARIANNE BOONE and WARD A. ROBINSON, Plaintiffs,
v.
BEACON BUILDING CORPORATION, ALAN D. BLEZNAK, BETTY BUTTERFIELD, LORRAINE FLYNN, JEFFERSON NATIONAL MORTGAGE COMPANY, LINCOLN FEDERAL SAVINGS AND LOAN ASSOCIATION, EQUITY SAVINGS AND LOAN, BARBARA DURHAM, TOWNSHIP OF GLOUCESTER, ESTATE OF JAMES JOYCE and CAROLE HOUSER, Defendants, and BEACON BUILDING CORPORATION, ALAN D. BLEZNAK, BETTY BUTTERFIELD and LORRAINE FLYNN, Defendants-Third Party Plaintiffs, v. ERIAL ESTATES, INCORPORATED and WILLIAM BOWMAN, Third Party Defendants



The opinion of the court was delivered by: GERRY

 This is a case in which plaintiffs have sued builders, realtors and landfill operators on a variety of theories. The plaintiffs purchased a home in the vicinity of a toxic landfill and seek damages against all parties allegedly involved in inducing the purchase.

 Only count 1, the civil RICO count, is left in plaintiff's action against the Township. However, numerous co-defendants have cross-claimed against the Township for contribution and indemnification. The Township seeks to get out from under the cross-claims.

 Counts 3 to 8 involve state law claims against the various defendants. In the plaintiffs' action against the Township, counts 3, 4, 6 and 7 were dismissed because immunity provisions of the New Jersey Tort Claims Act bar claims against public entities for fraud, breach of warranty, strict liability, and intentional torts, respectively. It is the Township's position that these provisions apply to any claims, regardless of whether brought by a plaintiff or by a co-defendant.

 The court agrees. There is nothing in the language of the Tort Claims Act that makes a distinction between a complaint and a cross-claim, and it seems unreasonable and unlikely that the Legislature would have barred these types of claims by an injured party only to permit them by a co-tort-feasor. More likely, the Legislature simply did not believe, as a matter of policy, that public entities should be liable at all on these causes of action, period.

 Counts 5 and 8 are for negligence and negligent infliction of emotional distress, respectively. In dismissing these claims against the Township, we held that intervening intentional acts of other defendants (or even those of the Township) rendered any negligence on the part of the Township a non-proximate cause of plaintiffs' injuries.

 The Township argues, therefore, that to the extent cross-claimants are found liable for these later intentional acts, they cannot logically recover from a party whose acts or omissions do not constitute a legal cause of injury, or, by extension, co-defendants' liability. We agree.

 Put another way, the Township and its co-defendants are not joint tort-feasors as regards the negligence claims. What we have are two distinct, independent sets of wrongs, not common tortious conduct among all the defendants, and contribution is therefore unavailable.

 As to count 2, the § 1983 count, the Township observes that none of its co-defendants are subject to liability on this basis and, therefore, have no need for contribution. We agree.

 Finally, we come to count 1. Unlike counts 3 to 8, which are governed by the New Jersey contribution scheme, this count is governed by the federal common law of contribution, if there is any.

 No case has yet determined, apparently, whether there is a right to contribution under the civil liability provisions of RICO. The statute, of course, is silent on the issue.

 Under a federal statute, a right of contribution may arise in one of two ways: either (1) by the express language of a statute or the statute's clear implication, looking to its legislative history, the identity of the class for whose benefit the statute was enacted, and the overall legislative scheme; or (2) through the power of federal courts to fashion a common law of contribution. Texas Industries v. Radcliff Materials, 451 U.S. 630, 68 L. Ed. 2d 500, 101 S. Ct. 2061 (1981).

 In Northwest Airlines v. Transport Workers, 451 U.S. 77, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981), the Court denied a right of contribution under either the Equal Pay Act or Title VII. The Court found that these statutes have a fairly elaborate enforcement mechanism, and that the omission from the statutes of a contribution remedy was probably deliberate. Stressing the very limited power of federal courts to fashion common law, the Court declined to create a right of contribution under these statutes, given the comprehensive nature of the scheme enacted by Congress.

 The Northwest Airlines case is not dispositive, however. The RICO statute, and particularly its enforcement provisions, are not much like the statutes considered in Northwest Airlines. While it is certainly true that none of these statutes were enacted with any mind to benefit potential defendants -- a factor considered by the Court in the Northwest Airlines case -- the far more comprehensive enforcement ...


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