A Capehart Scatchard Blog

County Not Entitled To Indemnification For Accident Caused By Its Own Negligence

By on April 30, 2021 in Negligence with 0 Comments

Plaintiff Matthew Domenick tripped and fell while playing a softball game at Johnson Park in Piscataway.  As sponsor of the softball league, defendant Brian Melnick obtained a permit from the defendant County of Middlesex.  Melnick signed the County’s rules and regulations which contained a hold harmless agreement, requiring indemnification for claims arising from the conduct of activities for which the application was being made.  The issue in Domenick v. County of Middlesex, 2021 N.J. Super. Unpub. LEXIS 722 (App. Div. April 26, 2021) was whether the County was entitled to indemnification for this accident.

The claim against the County was that it was negligent in the preparation and maintenance of the softball field, causing the plaintiff’s injuries.  In turn, the County filed a Third-Party Complaint against the sports league, BAM Sports (Melnick’s company)(“BAM”), and its insurance company Philadelphia Indemnity Insurance.

Just before discovery closed, the County filed for a summary judgment against BAM, claiming that it was entitled to indemnification.  BAM cross-moved for summary judgment, claiming that the County was not entitled to indemnification because the indemnity clause failed to reference “the County’s own fault or negligence.”

Based upon the well settled law in New Jersey, to bring a negligent indemnitee within an indemnification agreement, the agreement must specifically reference the negligence or fault of the indemnitee.  The trial court found that the County’s indemnification provision clearly lacked any explicit reference to indemnification in the case of a suit for the County’s own negligence.  Accordingly, the trial court denied the County’s motion but granted BAM’s motion to dismiss the case.

The County appealed the motion judge’s ruling, claiming that the judge erroneously applied the governing law and “overlooked the party’s true intent” behind the indemnification clause.  The Appellate Division noted that “as a general rule an indemnity ‘contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms’ in the agreement.”  In reviewing the indemnification clause in the County’s indemnification provision, the Appellate Division found that it fell “far short” of the explicit language required under New Jersey case law to provide indemnification for the County for its own negligence.  Thus, because the indemnification provision lacked any reference whatsoever to the County’s own negligence, the Appellate Division agreed that BAM was not required to defend or indemnify the County.  Accordingly, the Appellate Division affirmed the trial court’s decision that the County of Middlesex was not entitled to indemnification from the third party defendant BAM for the plaintiff’s accident.


Betsy G. Ramos, Esq. is expanding her practice to include serving as mediator for NJ or PA civil cases. Ms. Ramos recently completed the required 40-hour Civil Mediation Training Program conducted by the New Jersey Association of Professional Mediators (NJAPM). Completion of this program meets the training requirements for Rule 1:40 Civil, General Equity, and Probate Mediation Roster of the Superior Court, as maintained by the New Jersey Administrative Office of the Courts.

Please contact Ms. Ramos at 856-914-2052 or bramos@capehart.com if you wish to retain her services as a mediator for any civil litigation, including personal injury, construction, employment, probate, or chancery matters.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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