This matter before the court once again raises the troublesome question of the effect of N.J.S.A. 59:8-8 on third party practice as it pertains to public entities.
Plaintiffs own a duplex property located at 2405 Central Avenue in the City of North Wildwood, which they use on a seasonal basis occupying it in the summer and leaving it unoccupied in the winter. Before vacating the property for the winter, it is plaintiffs' practice to drain the water from the system to prevent the pipes in the house from freezing. Then, they disconnect the pipes and shut off the water at the main. Defendant Bruce Cannon is alleged to have negligently turned on plaintiffs' water supply, mistaking the plaintiffs' water service for that of the adjoining property, thus causing the plaintiffs damages.
The defendant asserts in his answer and third party complaint that his parents are the owners of 2403 Central Avenue, North Wildwood. He claims that his father was gravely ill in the winter of 1984 and that it fell upon him to complete the task of winterizing his father's property. Not being familiar with either the proper procedure or the location of the water main, the defendant contacted the third party defendant, City of North Wildwood Water Department, and arranged for a representative of the water department to meet him on the site in the winter of 1984. When the representative arrived, Mr. Cannon requested an identification of the proper water service and a demonstration of the proper shut off procedure. The representative of the City then identified the plaintiffs' water service as that of Mr. Cannon's parents and proceeded to turn the water supply off.
Mr. Cannon then assumed that the water supply to his parents' property had been shut off, when in fact it remained on all winter, allegedly causing damage to his parents' property.
Moreover, on or about March 31, 1985, when he returned to the property and again manipulated the valve that had been identified to him as being that which controlled the water service to his parents' property, he proceeded to turn on the water service to plaintiffs' property causing plaintiffs damage. Plaintiffs sue only the defendant. The defendant answered and filed a third party complaint for contribution and indemnification against the City of Wildwood Water Department.
The defendant City of Wildwood Water Department moves now for dismissal of the complaint, claiming that third party plaintiff was obliged to give notice and to await six months, pursuant to N.J.S.A. 59:8-8, before bringing this complaint.
The city relies on Ezzi v. DeLaurentis, 172 N.J. Super. 592 (Law Div.1980). Ezzi arose from a two car collision, wherein plaintiff motor vehicle operator charged defendant motor vehicle operator with negligent operation. Approximately one year later, the defendant sought and was granted leave to join the municipality as a third party defendant. No notice was given to the municipality, nor was there compliance with the waiting period provided for in the New Jersey Tort Claims Act. N.J.S.A. 59:8-8. The third party defendant moved for summary judgment and the trial court granted the motion, reasoning that the Tort Claims Act is clear and unambiguous in the procedure to be followed in order to assert any and all claims. The court held that the public entity could not be proceeded against before compliance with the formal provisions of the Act. Recognizing the impracticality of such procedure, the court went on to say:
A dismissal without prejudice unfortunately creates problems of its own. In the present setting the suit will presumably continue as between plaintiff and defendant and discovery will proceed over the next six months, despite the nonparticipation of a party in interest. Once the municipality is rejoined, it will not be bound by prior discovery and duplication may occur. At the very least, the main action will probably be delayed. On the other hand, these potential problems do not compel a conclusion that compliance with the statute in this setting serves no legislative purpose.
On similar facts, another trial court held otherwise. Perello v. Woods, 197 N.J. ...