A Capehart Scatchard Blog

Third-Party Complaint Against Municipality Barred Due To Defendant’s Failure To Timely File A Notice Of Tort Claim

By on February 12, 2021 in Negligence with 0 Comments

Plaintiff Eartha Butler claims that, on March 18, 2018, she suffered injuries after tripping and falling on a sidewalk adjacent to the defendant Badr’s Jersey City private school (“Badr”).  Badr was unaware of plaintiff’s claim until seven months after the accident.  At that time, it served a notice of tort claim upon Jersey City.  The issue in Butler v. Badr School, 2021 N.J. Super. Unpub. LEXIS 216 (App. Div. Feb. 9, 2021) was whether Badr could pursue a third-party complaint for indemnification and contribution against the City of Jersey City. 

The plaintiff Butler did not assert a claim against the City. Plaintiff filed a complaint against Badr and other defendants on May 10, 2019, more than one year after the fall. Badr filed an answer and a third-party complaint asserting indemnification and contribution claims against the City.  Thereafter, the City moved to dismiss the third-party complaint.  It argued that Badr failed to timely serve a notice of tort claim in accordance with the Tort Claims Act requirements.  Badr cross-moved for an order deeming its October 31, 2018 notice of tort claim timely or, in the alternative, for leave to file a late notice of tort claim. 

At the trial court level, the court granted the City’s motion to dismiss the third-party complaint. The court found that the March 8, 2018 date was the accrual date for the claim subject to the Tort Claim Act’s requirements.  It relied upon the Supreme Court’s decision in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  It concluded that Badr’s notice of tort claim was untimely because it was not served within ninety days of the accrual of plaintiff’s claim.  The court also denied Badr’s cross-motion, in the alternative, for leave to serve a late notice of tort claim because the cross-motion was filed more than one year after the March 18, 2018 accrual date of plaintiff’s claim under the Tort Claims Act.  Thus, the trial court entered an order granting the City’s motion to dismiss Badr’s third-party complaint and also denied Badr’s cross-motion.  Badr appealed both of these orders to the Appellate Division.

The Appellate Division noted that the Tort Claims Act defines a circumstance as to when a plaintiff may bring tort claims against any public entity.  The Act requires that a plaintiff asserting tort claims against a public entity must first serve the entity with a notice of claim within ninety days of the accrual of the claim.  Under the Jones case, the New Jersey Supreme Court made it clear that this notice of tort claim requirement applies to not only the plaintiff’s tort claims, but a defendant’s crossclaims and any third-party tort claims against a public entity.

Badr’s October 31, 2018 notice of tort claim was received by the City on November 5, 2018, which was more than seven months after plaintiff fell and was injured on a city sidewalk.  Badr claimed that its notice of tort claim was timely because it did not know, and had no reason to know about plaintiff’s fall and injuries or that it had a potential claim for indemnification and contribution against the City, until it received plaintiff’s counsel’s October 18, 2018 letter from plaintiff’s counsel, presumably advising of the accident.

Badr relied upon the discovery rule, claiming that the court erred by failing to deem its notice of tort claim timely and by dismissing its third-party complaint against the City.  Badr argued that it filed a notice within days of discovering, and first having any reason to discover, its possible claims for contribution and indemnification against the City. 

The Appellate Division found that the trial court correctly rejected Badr’s argument because it was inconsistent with, and contradicted by, the Court’s holding in the Jones case.  In Jones, neither the defendant nor the plaintiffs filed a notice of tort claim with the public entity within ninety days of the accident.  Plaintiff had filed a complaint more than a year following the accident, but did not assert a claim against the public entity.  The Supreme Court found that the notice of claim requirement applied to both a plaintiff’s claim and a defendant’s crossclaim or third-party claim against a public entity.  Also, under Jones, the Court “explained that a defendant who fails to serve a timely notice of crossclaim for contribution or indemnification …. is not without a remedy at trial.”  A defendant may seek an allocation of fault against a public entity under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law and obtain “a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.”

Applying the Jones holding, the Appellate Division found that Badr’s notice of tort claim was not timely filed because it did not file a notice within ninety days of the accrual of plaintiff’s cause of action.  Badr also failed to move for leave to file a late notice of tort claim within one year of the accrual of plaintiff’s claim and, as a result, the trial court had no authority to grant Badr’s motion to file a late notice.  In the Jones case, the Supreme Court held that where a defendant fails to serve a timely notice of tort claim on a public entity and is not granted to leave to file a late notice, the Tort Claims Act bars that defendant’s crossclaim or third-party claim.

In summary, the Appellate Division affirmed the court’s orders dismissing Badr’s third-party complaint against the City and denying Badr’s motion for leave to file a late notice of claim and to deem the October 31, 2018 notice of tort claim timely.  However, the Appellate Division did note that Badr “shall be entitled to request that the jury allocate fault based on the alleged negligence of the City” as permitted by the Court in the Jones case.

The interesting part of this case is that even though the defendant knew of the claim within the one year time period and failed to timely seek leave to file a late notice of tort claim, the Appellate Division found that, nevertheless, although the third-party complaint was barred, the defendant was still entitled to request that the jury allocate fault based upon the alleged negligence of the public entity.

Share

Tags: , , , ,

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.

*No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

.

Post a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Top