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Jones v. Morey's Pier, Inc.

Supreme Court of New Jersey

July 27, 2017

TWANDA JONES, CO-ADMINISTRATOR OF THE ESTATE OF ABIAH JONES AND AND BYRON JONES, CO-ADMINISTRATOR OF THE ESTATE OF ABIAH JONES, Plaintiffs-Respondents,
v.
MOREY'S PIER, INC., MOREY'S ATTRACTIONS, LLC, AND THE MOREY ORGANIZATION, INC., Defendants-Respondents,
v.
PLEASANTECH ACADEMY EDUCATION ASSOCIATION, INC., Third-Party Defendant-Appellant.

          Argued February 27, 2017

         On appeal from the Superior Court, Appellate Division.

          Jason D. Attwood argued the cause for appellant (Pashman Stein, attorneys; Dawn Attwood, of counsel; Jason D. Attwood and Dawn Attwood, on the briefs).

          John H. Osorio argued the cause for respondents Morey's Pier, Inc., Morey's Attraction, LLC, and the Morey Organization, Inc. (Marshall Dennehey Warner Coleman & Goggin, attorneys; John H. Osorio, Larry I. Zucker, Adam E. Levy, and Walter F. Kawalec, III, on the briefs).

          Heidi G. Villari argued the cause for respondents Twanda Jones, co-administrator of the Estate of Abiah Jones and Byron Jones, co-administrator of the Estate of Abiah Jones (The Beasley Firm, attorneys).

          Daniel M. Vannella, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ashley Gagnon, Deputy Attorney General, on the brief).

          Susan C. Sharpe submitted a brief on behalf of amicus curiae New Jersey Municipal Excess Liability Joint Insurance Fund (Dorsey & Semrau, LLC, attorneys; Fred C. Semrau, of counsel; Susan C. Sharpe on the brief).

          Wilson D. Antoine and Gary S. Lipshutz submitted a brief on behalf of amicus curiae City of Newark (Willie L. Parker, Corporation Counsel, attorney; Wilson D. Antoine, of counsel; Wilson D. Antoine and Gary S. Lipshutz, on the brief).

         PATTERSON, J., writing for the Court.

         In this appeal arising from the tragic death of eleven-year-old Abiah Jones after she fell from a ride in an amusement park, the Court considers the following: 1) the circumstances under which a defendant is barred from asserting contribution and common-law indemnification claims against a public entity for purposes of the Tort Claims Act; 2) whether the jury should be permitted to allocate a percentage of fault to a public entity pursuant to the Comparative Negligence Act and the Joint Tortfeasors Contribution Law; and 3) the effect of any such allocation of fault on plaintiffs' recovery of damages if the jury returns a verdict in their favor.

         On June 3, 2011, when Abiah Jones's death occurred, she was visiting an amusement park on a trip organized by her charter school, PleasanTech Academy. The school is operated by the PleasanTech Academy Education Association (Association) and is treated as a public entity for purposes of the Tort Claims Act (TCA). Her parents filed a wrongful death action against Morey's Pier, Inc., Morey's Attractions, LLC, and the Morey Organization, Inc. (Morey defendants) alleging that their daughter's death resulted from the negligent operation of the park. Neither plaintiffs nor the Morey defendants served a TCA notice of claim on the Association within ninety days of Abiah Jones's death. Plaintiffs attempted to litigate this case in Pennsylvania, but the Superior Court dismissed the complaint on March 10, 2014.

         On June 3, 2013, plaintiffs filed this wrongful death and survival action in New Jersey. The Morey defendants filed a third-party complaint against the Association and sought contribution and common-law indemnification, alleging that its negligence was a proximate cause of Abiah Jones's death. The Association moved for summary judgment, invoking the TCA's ninety-day notice of claim provision. The trial court denied the Association's motion, finding that the TCA does not require the service of a notice of claim as a prerequisite to contribution or common-law indemnification claims against a joint tortfeasor that is a public entity. The Association filed a motion for leave to appeal in the Appellate Division, which was denied. The Court subsequently granted the Association's motion for leave to appeal. 226 N.J. 206 (2016).

         HELD: When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late notice of claim, the statute bars that defendant's cross-claim or third-party claim for contribution and common-law indemnification against the public entity. Accordingly, the Morey defendants' third-party contribution and common-law indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of Abiah Jones's death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs' favor to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association.

         1. As the operator of a charter school, the Association may sue and be sued, but only to the same extent and upon the same conditions that a public entity can be sued. The claims asserted against the Association in this case are therefore subject to the TCA. When it enacted N.J.S.A. 59:8-8, the Legislature imposed a strict constraint on public entity liability. If notice is not timely served, the claimant shall be forever barred from recovering against a public entity, (pp. 11-13)

         2. The Court has not previously determined whether a defendant's contribution and common-law indemnification claims against a public entity are barred when defendant fails to timely serve notice of a tort claim. The Court concurs with the analysis set forth in two published opinions, in which trial courts focused on N.J.S.A. 59:8-8's plain language and construed it to bar all claims, including contribution and indemnification claims, if the claimant failed to serve a timely TCA notice. The Legislature did not distinguish between a plaintiff's claim and a defendant's cross-claim or third-party claim. To permit a defendant to assert a contribution or indemnification claim against a public entity or employee months or years after the plaintiffs claim accrued would undermine the Legislature's intent. Given that neither plaintiffs, nor the Morey defendants, served a timely notice of claim or invoked the procedure for obtaining judicial approval of a late-served notice, the Association is entitled to summary judgment dismissing the third-party complaint with prejudice, (pp. 14-18)

         3. The Comparative Negligence Act (CNA) and Joint Tortfeasors Contribution Law (JTCL) may mitigate the impact of the notice requirement on a defendant whose third-party claim or cross-claim for contribution is barred. In a negligence or strict liability action in which the question of liability is in dispute, the trial court molds the judgment based on the factfinder's determination of damages and allocation of fault. A defendant compelled to pay more than the percentage of damages corresponding to the allocation of fault ordinarily has a remedy under the CNA: a claim for contribution governed by the JTCL. Application of the CNA and JTCL is complicated when an alleged joint tortfeasor is not a defendant at the time of trial. Even if the claims against a defendant are dismissed by the operation of a statute, apportionment of fault to that defendant is required by the CNA and the JTCL. Allocation of a percentage of fault to a joint tortfeasor that is not a defendant at trial may afford to a remaining defendant the practical benefit of the contribution claim to which it is entitled under the CNA and the JTCL. (pp. 18-27)

         4. In accord with the legislative policy to ensure prompt notice to public entities of potential claims against them, the TCA bars any claims against the Association in this case. In the CNA and the JTCL, the Legislature has expressed a policy in favor of a fair apportionment of damages as among joint defendants in accordance with the factfinder's allocation of fault. A ruling permitting the Morey defendants to seek an allocation of fault to the Association at trial harmonizes and furthers the statutes' separate goals and is an equitable result in the circumstances of this case. Despite the New Jersey location of the accident and the New Jersey domicile of all parties when that accident occurred, plaintiffs elected to bring their action in a Pennsylvania court. When this action was instituted in New Jersey, the period for the service of a TCA notice, and the one-year period for leave to serve a late notice had long expired. The equities thus weigh against plaintiffs, whose strategy deprived the Morey defendants of the opportunity to preserve their right to file a cross-claim against the Association. The procedural posture of this case allows for a fair determination of the Association's alleged fault as the parties have long been on notice of the Morey defendants' intention to seek the apportionment of a percentage of fault, (pp. 27-30)

         5. The Court also considers the Morey defendants' argument that if plaintiffs prevail at trial, the court should limit the Morey defendants' liability for damages to any percentage of fault that the jury apportions to them. The CNA provides that a plaintiff is entitled to collect the full amount of the damages awarded from any party that the factfinder determines to be sixty percent or more responsible for the total damages, N.J.S.A. 2A:15-5.3(a), and affords to a defendant "compelled to pay more than his percentage share" of the damages a contribution claim against joint tortfeasors, N.J.S.A. 2A:15-5.3(e). The JTCL, N.J.S.A. 2A:53A-3, defines that contribution claim. As the Appellate Division recognized in Burt v. West Jersey Health Systems, 339 N.J.Super. 296 (App. Div. 2001), a joint tortfeasor's statutory right to a dismissal of the claims against it could disrupt the allocation scheme. To the panel deciding Burt, a ruling limiting the defendants' liability to the percentage allocated by the jury, even if that percentage met the sixty-percent threshold of N.J.S.A. 2 A: 15-5.3 (a), best furthered the Legislature's equitable intent. The Court considers the Appellate Division's analysis in Burt to effectively reconcile the governing statutes. If the Morey defendants present evidence at trial that the Association was negligent and that its negligence was a proximate cause of Abiah Jones's death, the jury should be instructed to determine whether the Morey defendants have met their burden of proof on those issues. If it finds that the Morey defendants have met that burden, the jury may allocate a percentage of fault to the Association. If the jury allocates a percentage of fault to the Association, the trial court shall mold the judgment to reduce the Morey defendants' liability in accordance with the fault allocated to the Association. If the jury does not find that the Morey defendants have met their burden, it should not allocate fault to the Association. In that case, an award of damages to plaintiffs will not be affected, (pp. 30-35)

         6. The Court reminds litigants that any party intending to pursue a claim against a public entity or employee subject to the TCA must act expeditiously to preserve it. Such a party must serve a notice pursuant to the Act within ninety days of the accrual of the claim or file an application within one year of that date for leave to serve a late notice of claim, on a showing of extraordinary circumstances. A plaintiff that is aware of a potential cause of action against a public entity-and litigates the case in a manner that deprives a defendant of an opportunity to serve a TCA notice on that entity-risks a reduction in any damages award by virtue of an allocation of fault under the CNA and JTCL. A defendant that is aware of its potential cross-claim against a public entity that may be a joint tortfeasor, but foregoes its opportunity to serve a TCA notice on that entity, may lose the benefit of an allocation of fault to the public entity in accordance with those statutes, (pp. 35-36)

         The trial court's summary judgment determination is REVERSED and summary judgment is GRANTED to the Association. The Morey defendants' third-party and common-law indemnification claims are DISMISSED with prejudice. The matter is REMANDED to the trial court for further proceedings in accordance with this opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON and TIMPONE join in JUSTICE PATTERSON'S opinion.

          OPINION

          PATTERSON JUSTICE.

         This appeal arises from the tragic death of eleven-year-old Abiah Jones after she fell from a ride in an amusement park. When the accident occurred, Abiah Jones was visiting the amusement park on a school trip organized by her charter school, PleasanTech Academy, operated by the PleasanTech Academy Education Association (Association).

         Plaintiffs Twanda Jones and Byron Jones, Abiah Jones's parents and the co-administrators of her estate, filed this wrongful death action against Morey's Pier, Inc., Morey's Attractions, LLC, and the Morey Organization, Inc. (Morey defendants). Plaintiffs allege that their daughter's death resulted from the Morey defendants' negligent operation of the amusement park. Plaintiffs did not name the Association as a defendant. Neither plaintiffs nor the Morey defendants served notice of a tort claim on the Association within the ninety-day period prescribed by the notice of claims provision of the Tort Claims Act, N.J.S.A. 59:8-8.

         The Morey defendants filed a third-party claim for contribution and common-law indemnification against the Association, alleging that the Association was negligent and that its negligence was a proximate cause of Abiah Jones's death. The Association moved for summary judgment, invoking the ninety-day deadline of N.J.S.A. 59:8-8. The trial court denied the Association's motion for summary judgment on the ground that N.J.S.A. 59:8-8 does not apply to contribution or common-law claims asserted by defendants against public entities. We granted the Association's motion for leave to appeal.

         The appeal requires that we consider three issues. First, we determine whether N.J.S.A. 59:8-8 bars the Morey defendants from asserting contribution and common-law indemnification claims against the Association, which is treated as a public entity for purposes of the Tort Claims Act. Second, we decide whether the jury should be permitted to allocate a percentage of fault to the Association pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, and the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, notwithstanding the parties' failure to serve a notice of claim on the Association in accordance with N.J.S.A. 59:8-8. Third, we consider the effect of any allocation of fault by the jury to the charter school on plaintiffs' recovery of damages, in the event that the jury returns a verdict in plaintiffs' favor and the trial court molds the judgment in accordance with N.J.S.A. 2A:15-5.2(d).

         We reverse the trial court's determination. The plain language of N.J.S.A. 59:8-8 requires parties such as the Morey defendants seeking to assert a claim against a public entity to serve a notice of claim within ninety days of the date on which the cause of action accrues. Because the Morey defendants did not serve a timely notice of claim on the Association, their third-party contribution and common-law indemnification claims against the Association are barred.

         We hold, however, that the trial court should afford the Morey defendants an opportunity to present evidence at trial that the Association was negligent and that its negligence was a proximate cause of Abiah Jones's death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association in accordance with N.J.S.A. 2A:15-5.2. Should the jury find that the Association was negligent and that its negligence was a proximate cause of Abiah Jones's death, the trial court should mold any judgment entered in plaintiffs' favor pursuant to N.J.S.A. 2A:15-5.2(d) to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association.

         I.

         We base our account of the facts on the allegations set forth in plaintiffs' complaint and other materials in the summary judgment record presented to the trial court.

         Abiah Jones was a student at PleasanTech Academy, a charter school in Pleasantville operated by the Association in accordance with a charter granted by the New Jersey Department of Education. According to plaintiffs, to celebrate the achievements of its honor students at the close of the school year, PleasanTech Academy organized a school trip to an amusement park in Wildwood owned and operated by the Morey defendants.[1] The school trip took place on June 3, 2011.

         Plaintiffs allege that Abiah Jones was killed after falling from the "Giant Wheel" amusement ride, a Ferris wheel that is, at its highest point, almost one hundred sixty feet tall. They assert that at the time of the accident, the child was riding alone in a carriage on the "Giant Wheel, " contrary to the Morey defendants' operating procedures, which required at least two riders in each carriage, and that high winds made the ride unsafe. Plaintiffs claim that the Morey defendants failed to warn of the dangerous wind conditions, failed to provide adequate safety instructions, failed to install proper safety measures to prevent falls from the "Giant Wheel" carriages, inadequately maintained the locks on the carriages, and failed to lock the door on the carriage from which the child fell.

         It is undisputed that neither plaintiffs nor the Morey defendants served a Tort Claims Act notice of claim on the Association pursuant to N.J.S.A. 59:8-8 within ninety days of Abiah Jones's death.

         Plaintiffs initially attempted to litigate this case in a Pennsylvania forum. On July 7, 2011, they filed a complaint in the Court of Common Pleas of Philadelphia County, Pennsylvania. The Morey defendants moved to dismiss the complaint on forum non conveniens grounds. They relied on the New Jersey site of the accident; the New Jersey residence of Abiah Jones and her mother, plaintiff Twanda Jones; the New Jersey locations of PleasanTech Academy and the amusement park; and the absence of any nexus between Pennsylvania and this case other than the Pennsylvania domicile of the child's father, plaintiff Byron Jones.[2] The Morey defendants agreed to waive any statute of limitations defense and accept service of process in New Jersey. Although the Pennsylvania trial court denied the Morey defendants' motion, the Superior Court of Pennsylvania reversed the trial court's determination and dismissed the complaint without prejudice on March 10, 2014.

         On June 3, 2013, two years after their daughter's death, plaintiffs filed this wrongful death and survival action. The Morey defendants filed a third-party complaint against the Association. They claimed that the Association negligently organized, supervised and chaperoned the field trip to the amusement park, and that the Association's negligence proximately caused Abiah Jones's death. The Morey defendants sought ...


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