Twanda Jones v. Morey’s Pier, Inc. (077502) (Cape May and Statewide)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity,
portions of any opinion may not have been summarized).

Twanda Jones v. Morey’s Pier, Inc. (A-75-15) (077502)

Argued February 27, 2017 – Decided July 27, 2017

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 plaintiff’s 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)
1
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. 2A: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.

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 SUPREME COURT OF NEW JERSEY
A-75 September Term 2015
077502

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 – Decided July 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).

1
 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).

JUSTICE PATTERSON delivered the opinion of the Court.

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

2
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

3
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

4
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

1 In its third-party complaint, the Morey defendants assert that
defendant Morey’s Pier, Inc., has not existed since 1997, when
it became part of the Morey Organization.
5
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

6
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 contribution pursuant to the Joint Tortfeasors

Contribution Law, as well as common-law indemnification and

other relief.

The Association moved for summary judgment pursuant to Rule

4:46-2. It contended that because defendants served no notice

of claim under N.J.S.A. 59:8-8, the Tort Claims Act barred the

assertion of the contribution and common-law indemnification

claims. The Association suggested to the motion judge that at

trial, the jury should be permitted to allocate fault to it

2 At the time of Abiah Jones’s death, her father was also a New
Jersey resident.
7
pursuant to N.J.S.A. 2A:15-5.2, notwithstanding the dismissal of

the Morey defendants’ cross-claims against it. The Morey

defendants countered that their cross-claims were not barred by

N.J.S.A. 59:8-8 because that provision applies only to claims

asserted by plaintiffs. Plaintiffs urged the trial court to

reserve decision on the question of an allocation of fault to

the Association.

The trial court denied the Association’s summary judgment

motion. Declining to follow case law to the contrary, the court

interpreted N.J.S.A. 59:8-8 to limit only a plaintiff’s right to

assert a claim against a public entity. It concluded that

N.J.S.A. 59:8-8 does not require the service of a notice of

claim as a prerequisite to a defendant’s 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. An Appellate Division panel denied the

motion. We granted the Association’s motion for leave to

appeal. 226 N.J. 206 (2016). We also granted the motions of

the City of Newark, the New Jersey Municipal Excess Liability

Insurance Fund, and the Attorney General to appear as amici

curiae.

II.

8
 The Association urges the Court to reverse the trial

court’s determination. It states that as a charter school, it

is entitled to the protection of the Tort Claims Act’s notice

provision, N.J.S.A. 59:8-8. It contends that the trial court’s

decision thwarts the Legislature’s objectives in enacting the

Tort Claims Act. The Association contends that a ruling

permitting the jury to allocate a percentage of fault to it

pursuant to N.J.S.A. 2A:15-5.2 would afford the Morey defendants

an opportunity to reduce their liability to plaintiffs, as a

substitute for their third-party claim. It urges the Court to

refrain from imposing any obligation on it to provide discovery

to the parties in this case.

The Morey defendants assert that plaintiffs’ failure to

serve a notice of claim against the Association should not

deprive them of their right to assert contribution and

indemnification claims against that entity. They argue that if

the Court bars their third-party claims under N.J.S.A. 59:8-8,

it should authorize the jury to apportion fault to the

Association. The Morey defendants seek a ruling directing the

trial court to mold any judgment in plaintiffs’ favor, so that

their share of an award of damages will not exceed the

percentage of fault allocated to them by the jury. They also

ask the Court to ensure that if their claims against the

9
Association are dismissed, the Association will provide

discovery to the parties.

Citing N.J.S.A. 2A:15-5.3(a), plaintiffs contend that the

liability of the Morey defendants should not be limited to the

percentage of fault that the jury allocates to those defendants

if that percentage is sixty percent or more. They argue that

N.J.S.A. 2A:15-5.3(a) is unambiguous and that they are entitled

to one hundred percent of any damages that the jury awards.

Amicus curiae the City of Newark argues that N.J.S.A. 59:8-

8 bars any party that fails to comply with the Tort Claims Act’s

notice provisions from suing a public entity, even if that

public entity is a joint tortfeasor that may otherwise be liable

for contribution. The City of Newark urges the Court to

authorize the factfinder to allocate fault to the public entity

that is immune from suit and to limit any award of damages

against the private tortfeasor in accordance with the percentage

of fault allocated by the factfinder, even when that percentage

constitutes or exceeds sixty percent.

Amicus curiae New Jersey Municipal Excess Liability Joint

Insurance Fund similarly contends that N.J.S.A. 59:8-8 bars any

claim against a public entity unless a notice of claim is served

and supports the allocation of a percentage of liability to an

entity that is immune under the Tort Claims Act.

10
 Amicus curiae the Attorney General asserts that the Tort

Claims Act mandates a determination that the Association is

immune from all claims. The Attorney General argues that the

Court may reconcile the statutes at issue by permitting the jury

to apportion a percentage of fault to the Association, and

limiting the Morey defendants’ liability to the percentage of

fault that the jury allocates to it.

III.

A.

All parties agree that neither plaintiffs nor the Morey

defendants served a Tort Claims Act notice on the Association

within the time period prescribed by N.J.S.A. 59:8-8.

Accordingly, no party contended before the trial court, or

argues here, that facts material to the summary judgment motion

were in dispute; the parties contest only the legal consequences

of undisputed facts. See Rule 4:46-2(c) (providing that summary

judgment should be awarded if record demonstrates “that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law”).

When, as here, “no issue of fact exists, and only a

question of law remains, this Court affords no special deference

to the legal determinations of the trial court.” Cypress Point

Condo. Ass’n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016)

11
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)). We review the trial court’s decision de

novo.

B.

As the operator of a charter school, the Association may

“[s]ue and be sued, but only to the same extent and upon the

same conditions that a public entity can be sued.” N.J.S.A.

18A:36A-6(b). The claims asserted against the Association in

this case are therefore subject to the Tort Claims Act.

The Tort Claims Act provides “broad but not absolute

immunity for all public entities.” Marcinczyk v. N.J. Police

Training Comm’n, 203 N.J. 586, 597 (2010). The statute is

intended “to bring uniformity to the law in this State with

respect to sovereign immunity to tort claims enjoyed by public

entities.” Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super.

265, 268 (Law Div. 1994). The Act’s “guiding principle” is that

“immunity from tort liability is the general rule and liability

is the exception.” D.D. v. Univ. of Med. & Dentistry of N.J.,

213 N.J. 130, 134 (2013) (quoting Coyne v. Dep’t of Transp., 182

N.J. 481, 488 (2005)).

When it enacted N.J.S.A. 59:8-8, the Legislature imposed a

strict constraint on public entity liability. That provision

mandates that “[a] claim relating to a cause of action for death

or for injury or damage to person or to property shall be

12
presented . . . not later than the 90th day after accrual of the

cause of action.” N.J.S.A. 59:8-8. If notice is not timely

served in accordance with the statute, “[t]he claimant shall be

forever barred from recovering against a public entity.” Ibid.;

see also D.D., supra, 213 N.J. at 146 (explaining consequences

of party’s failure to meet ninety-day deadline); Rogers v. Cape

May Cty. Office of Pub. Defs., 208 N.J. 414, 420 (2011) (noting

that Tort Claims Act establishes procedures for bringing claims,

which “include filing of a timely notice”).3

N.J.S.A. 59:8-8 is intended

(1) to allow the public entity at least six
months for administrative review with the
opportunity to settle meritorious claims prior
to the bringing of suit; (2) to provide the
public entity with prompt notification of a
claim in order to adequately investigate the
facts and prepare a defense; (3) to afford the
public entity a chance to correct the
conditions or practices which gave rise to the
claim; and (4) to inform the State in advance
as to the indebtedness or liability that it
may be expected to meet.

3 N.J.S.A. 59:8-9 authorizes a claimant, “within one year after
the accrual of his claim” to file an application for leave to
serve a late tort claims notice. That application may be
granted “in the discretion of a judge of the Superior Court,” if
there is a showing of “sufficient reasons constituting
extraordinary circumstances” for the claimant’s failure to
timely serve the notice, and if the public entity will not be
“substantially prejudiced thereby.” N.J.S.A. 59:8-9; see also
D.D., supra, 213 N.J. at 134-35 (applying N.J.S.A. 59:8-9);
McDade v. Siazon, 208 N.J. 463, 477 (2011) (same); Rogers,
supra, 208 N.J. at 427 (same). In this case, neither plaintiffs
nor the Morey defendants filed an application pursuant to
N.J.S.A. 59:8-9.
13
 [McDade v. Siazon, 208 N.J. 463, 475-76
(2011) (internal quotation marks omitted) (
quoting Beauchamp v. Amedio, 164 N.J. 111,
121-22 (2000)).]

Thus, when it enacted the notice of claim provision, the

Legislature sought to afford to public entities an “opportunity

to plan for potential liability and correct the underlying

condition.” Id. at 476.

We have not previously determined whether a defendant’s

contribution and common-law indemnification claims against a

public entity are barred when it fails to serve a notice of tort

claim within the time limit imposed by N.J.S.A. 59:8-8. Our

courts’ published decisions addressing that issue reach

divergent results.

In three published decisions, the Appellate Division and

Law Division viewed a defendant’s claims for contribution and

indemnification to be beyond the reach of N.J.S.A. 59:8-8. See

S.P. v. Collier High Sch., 319 N.J. Super. 452, 475 (App. Div.

1999) (construing N.J.S.A. 59:8-8 to authorize defendant to file

third-party action for contribution, common-law indemnification

and contractual indemnification against public entity, despite

defendant’s failure to comply with N.J.S.A. 59:8-8’s notice

requirement); Ezzi v. De Laurentis, 172 N.J. Super. 592, 600

(Law Div. 1980) (“[P]laintiff’s failure to comply with the time

and notice provisions of N.J.S.A. 59:8-8 will not bar

14
defendants’ third-party claim for contribution against the

municipality.”); Markey v. Skog, 129 N.J. Super. 192, 200 (Law

Div. 1974) (holding that because contribution claim is “inchoate

right which does not ripen into a cause of action until [the

defendant] has paid more than his pro rata portion of the

judgment obtained against him by the plaintiff,” defendant may

assert that right despite failure to serve notice of claim under

N.J.S.A. 59:8-8); see also D’Annunzio v. Wildwood Crest, 172

N.J. Super. 85, 88, 91-92 (App. Div. 1980) (relying on Markey to

hold that N.J.S.A. 59:9-2(e), which prohibits actions “under a

subrogation provision in an insurance contract against a public

entity or public employee,” does not bar defendant’s

contribution claim for subrogation).

In two other published opinions, trial courts construed

N.J.S.A. 59:8-8 to bar all claims, including contribution and

indemnification claims, if the claimant failed to serve a Tort

Claims Act notice within the ninety-day period set forth in the

statute. See Estate of Kingan v. Estate of Hurston, 139 N.J.

Super. 383, 384-85 (Law Div. 1976) (holding that “[t]here is no

sense in the Legislature carefully prescribing that a notice be

given to governmental agencies if the courts can emasculate the

statute’s intent by judicial construction” and dismissing third-

party claims against public entity given claimant’s failure to

serve notice of claim under N.J.S.A. 59:8-8); Cancel v. Watson,

15
131 N.J. Super. 320, 322 (Law Div. 1974) (barring third-party

contribution and indemnification claims against municipality

based on noncompliance with terms of N.J.S.A. 59:8-8).

We concur with the analysis set forth in Kingan and Cancel,

in which the courts properly focused on N.J.S.A. 59:8-8’s plain

language. See Wilson v. City of Jersey City, 209 N.J. 558, 572

(2012) (noting that in statutory construction, “[o]ur paramount

goal . . . is to give effect to the Legislature’s intent”

(citing State v. Maguire, 84 N.J. 508, 514 (1980)), and that

“[w]hen that intent is revealed by a statute’s plain language --

ascribing to the words used ‘their ordinary meaning and

significance’ -- we need look no further” (quoting DiProspero v.

Penn, 183 N.J. 477, 492 (2005))).

The statute is expansively phrased. The Legislature did

not distinguish between a plaintiff’s claim and a defendant’s

cross-claim or third-party claim against a public entity. See

N.J.S.A. 59:8-8. It did not exempt from the tort claims notice

requirement a defendant’s claim for contribution and

indemnification, or any other category of claims. See ibid. In

short, the statute’s import is clear: it governs contribution

and indemnification claims brought by defendants, as it governs

direct claims asserted by plaintiffs.

Were we to interpret N.J.S.A. 59:8-8 to permit a defendant

to assert a contribution or indemnification claim against a

16
public entity or employee months or years after the plaintiff’s

claim accrued, we would undermine the Legislature’s intent: to

permit public entities to promptly investigate claims, correct

the conditions or practices that gave rise to the claim, prepare

a defense, and assess the need for reserves. McDade, supra, 208

N.J. at 475-76; Beauchamp, supra, 164 N.J. at 121-22. Moreover,

a judicial determination excluding contribution and

indemnification claims from the tort claims notice requirement

would contravene the public policy stated by the Legislature in

the Tort Claims Act itself: “public entities shall only be

liable for their negligence within the limitations of this act

and in accordance with the fair and uniform principles

established herein.” N.J.S.A. 59:1-2. “In light of that

overriding policy, the [Tort Claims Act] has been construed to

allow the finding of liability against public entities only when

permitted by the Act.” Frugis v. Bracigliano, 177 N.J. 250, 275

(2003). The Tort Claims Act does not permit the imposition of

liability on the Association by direct claim, cross-claim, or

third-party claim, and we do not revise its terms.

Accordingly, we hold that when a defendant does not serve a

timely notice of claim on a public entity pursuant to N.J.S.A.

59:8-8 and is not granted leave to file a late notice of claim

under N.J.S.A. 59:8-9, the Tort Claims Act bars that defendant’s

17
cross-claim or third-party claim for contribution and common-law

indemnification against the public entity.

Given that neither plaintiffs nor the Morey defendants

served a timely notice of claim under N.J.S.A. 59:8-8 or invoked

N.J.S.A. 59:8-9’s procedure for obtaining judicial approval of a

late-served tort claims notice, the Association is entitled to

summary judgment dismissing the Morey defendants’ third-party

complaint with prejudice.

C.

1.

When N.J.S.A. 59:8-8 is applied to dismiss a defendant’s

cross-claim or third-party complaint against a public entity or

public employee, it may deprive a defendant of its right to

pursue a claim against a joint tortfeasor before the defendant

is aware that the claim exists. As the Appellate Division

observed in S.P., supra, a defendant “may not even learn that he

has a potential contribution claim within this period, since the

plaintiff may not file suit until well after the 90-day period.”

319 N.J. Super. at 475 (quoting Perello v. Woods, 197 N.J.

Super. 539, 546 (Law Div. 1984)).

In some circumstances, however, the statutory scheme for

the allocation of fault to joint tortfeasors, prescribed by the

Comparative Negligence Act and Joint Tortfeasors Contribution

Law, may mitigate the impact of N.J.S.A. 59:8-8 on a defendant

18
whose third-party claim or cross-claim for contribution is

barred.4 The Comparative Negligence Act was designed to further

the principle that “[i]t is only fair that each person only pay

for injuries he or she proximately caused.” Fernandes v. DAR

Dev. Corp., 222 N.J. 390, 407 (2015) (quoting Waterson v. Gen.

Motors Corp., 111 N.J. 238, 267 (1988)). To that end, in a

negligence or strict liability action “in which the question of

liability is in dispute,” the trier of fact makes two

determinations:

(1) The amount of damages which would be
recoverable by the injured party regardless of
any consideration of negligence or fault, that
is, the full value of the injured party’s
damages.

(2) The extent, in the form of a percentage,
of each party’s negligence or fault. The
percentage of negligence or fault of each
party shall be based on 100% and the total of
all percentages of negligence or fault of all
the parties to a suit shall be 100%.

[N.J.S.A. 2A:15-5.2(a).]

4 The common-law indemnification claim asserted by the Morey
defendants and dismissed pursuant to N.J.S.A. 59:8-8 in this
case is distinct from defendants’ statutory contribution claim.
Neither the Comparative Negligence Act nor the Joint Tortfeasors
Contribution Act governs a common-law indemnification claim, and
an allocation of fault pursuant to those statutes is unrelated
to such a claim. See Gulf Oil Corp. v. ACF Indus., Inc., 221
N.J. Super. 420, 431 (App. Div. 1987), certif. denied, 111 N.J.
613 (1988); White v. Newark Morning Star Ledger, 245 N.J. Super.
606, 612 (Law Div. 1990).
19
 After the factfinder determines the total damages and

allocates fault in accordance with N.J.S.A. 2A:15-5.2(a), the

trial court molds the judgment based on those findings.

N.J.S.A. 2A:15-5.2(d). In that calculation, the judge reduces

the damages “by the percentage of negligence attributable to the

person recovering.” N.J.S.A. 59:9-4. Under another provision,

the plaintiff may recover “[t]he full amount of the damages from

any party determined by the trier of fact to be 60% or more

responsible for the total damages.” N.J.S.A. 2A:15-5.3(a). The

plaintiff’s recovery from “any party determined by the trier of

fact to be less than 60% responsible for the total damages” is

limited to “[o]nly that percentage of the damages directly

attributable to that party’s negligence or fault,” as determined

by the factfinder. N.J.S.A. 2A:15-5.3(c).

A defendant compelled to pay more than the percentage of

damages corresponding to the jury’s allocation of fault to that

defendant ordinarily has a remedy under the Comparative

Negligence Act: a claim for “contribution from the other joint

tortfeasors.” N.J.S.A. 2A:15-5.3(e). The contribution claim is

governed by the Joint Tortfeasors Contribution Law, in which the

Legislature declared that “[t]he right of contribution exists

among joint tortfeasors.” N.J.S.A. 2A:53A-2. “The Joint

Tortfeasors Contribution Law was enacted to promote the fair

sharing of the burden of judgment by joint tortfeasors and to

20
prevent a plaintiff from arbitrarily selecting his or her

victim.” Holloway v. State, 125 N.J. 386, 400-01 (1991)

(citation omitted). The statute provides that where an injury

is caused by the conduct of joint tortfeasors, and a joint

tortfeasor pays the judgment “in whole or in part,” that party

shall be entitled to recover contribution from other joint

tortfeasors “for the excess so paid over his pro rata share.”

N.J.S.A. 2A:53A-3.

Applied together, “[t]he Comparative Negligence Act and the

Joint Tortfeasors Contribution Law comprise the statutory

framework for the allocation of fault when multiple parties are

alleged to have contributed to the plaintiff’s harm.” Town of

Kearny v. Brandt, 214 N.J. 76, 96 (2013). As this Court has

observed:

The modified comparative negligence approach
reflected by our statute provides a fairer
framework for imposing liability,
apportioning losses, and allowing redress.
Our modified joint and several liability
statute also promotes redress to plaintiffs
and provides for a fair apportionment of
damages as among joint defendants. When
applied together, the statutes implement New
Jersey’s approach to fair apportionment of
damages among plaintiffs and defendants, and
among joint defendants.

[Erny v. Estate of Merola, 171 N.J. 86, 98-
99 (2002) (citations omitted).]

The two statutes “promote ‘the distribution of loss in

proportion to the respective faults of the parties causing that

21
loss.’” Town of Kearny, supra, 214 N.J. at 102 (internal

quotation marks omitted) (quoting Brodsky v. Grinnell Haulers,

Inc., 181 N.J. 102, 114 (2004)). They ensure that damages are

ordinarily apportioned to joint tortfeasors in conformity to the

factfinder’s allocation of fault. Ibid.

2.

A trial court’s application of the Comparative Negligence

Act and Joint Tortfeasors Contribution Law is complicated when,

as here, a party alleged to be a joint tortfeasor is not a

defendant at the time of trial. In a series of decisions, our

courts have considered whether a factfinder may apportion fault

in such a setting.

In general, “our courts have barred apportionment where, as

a matter of law, [the person or entity to whom an allocation of

fault is sought] could not under any circumstances be a joint

tortfeasor under N.J.S.A. 2A:53A-2.” Town of Kearny, supra, 214

N.J. at 102 (citing Brodsky, supra, 181 N.J. at 115).5 In other

5 In Ramos v. Browning Ferris, the Appellate Division rejected
the argument of the defendant supplier of workplace equipment
that the jury should allocate fault to the plaintiff’s employer,
which was immune from civil liability under any circumstances
under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -146.
Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 194 N.J.
Super. 96, 106 (App. Div. 1984), rev’d on other grounds, 103
N.J. 177 (1986). In Bencivenga v. J.J.A.M.M., Inc., the
Appellate Division denied a defendant’s request that the jury
allocate fault to an unidentified individual who had assaulted
the plaintiff on the defendant’s premises and was named in the
complaint as a fictitious defendant pursuant to Rule 4:26-4.
22
decisions, however, this Court and the Appellate Division have

permitted a factfinder to allocate fault to an individual or

entity, notwithstanding the fact that at the time of trial that

individual or entity is not liable to pay damages to the

plaintiff, and the allocation may reduce the amount of damages

awarded to the plaintiff.

This Court’s first decision recognizing that principle was

Young v. Latta, 123 N.J. 584 (1991). There, the plaintiff in a

medical malpractice action settled with one physician defendant

and proceeded to trial against another physician. Id. at 596-

97. Although the non-settling physician had not asserted a

contribution claim against the settling defendant, the Court

permitted the jury to allocate fault to the settling defendant.

Ibid. It held that “a non-settling defendant may seek a credit

in every case in which there are multiple defendants, whether or

not a cross-claim for contribution has been filed.” Id. at 596.

The Court noted that “a non-settling defendant’s right to a

258 N.J. Super. 399, 406-07 (App. Div.), certif. denied, 130
N.J. 598 (1992). But see Krzykalski v. Tindall, 448 N.J. Super.
1, 8 (App. Div. 2016) (finding that jury may apportion fault to
uninsured motorist even if not labeled “party”), certif.
granted, ___ N.J. ___ (2017); Cockerline v. Menendez, 411 N.J.
Super. 596, 619 (App. Div.) (“[T]o preclude defendants from
seeking an apportionment of liability against the phantom
[defendants] . . . frustrates the purposes of the joint
tortfeasor and comparative fault law. The trial court erred
when it precluded the jury from making such an apportionment.”),
certif. denied, 201 N.J. 499 (2010).
23
credit [for the percentage of fault allocated to the settling

defendant] takes the place of contribution rights extinguished

by the settlement.” Id. at 595; see also Kranz v. Schuss, 447

N.J. Super. 168, 181-82 (App. Div.) (holding that “[t]he

equitable result is to permit defendants to have any judgment

that plaintiffs may secure against them reduced by the amount of

fault a jury attributes” to New York defendants, not subject to

New Jersey jurisdiction, who settled separate action in New

York), certif. denied, 228 N.J. 424 (2016).

The allocation procedure discussed in Young, supra, has

been held to govern a range of circumstances beyond the

settling-defendant situation in which that case arose. 123 N.J.

at 586. In Brodsky, supra, this Court reversed a motor vehicle

negligence judgment and remanded for a new trial on the ground

that the trial court improperly gave the jury an ultimate-

outcome instruction that a defendant whose fault was found to be

sixty percent or more would be liable for the total damages

awarded. 181 N.J. at 113-16. In reaching that holding, the

Court noted that the jury should assess the fault of an

uninsured driver notwithstanding the trial court’s dismissal of

the claims against that driver because those claims were

discharged in bankruptcy. Ibid.

In Town of Kearny, supra, 214 N.J. at 103-04, although the

statute of repose, N.J.S.A. 2A:14-1.1(a), barred the claims

24
against a defendant in a construction dispute, we authorized the

allocation of fault to that defendant at trial. There, we noted

that “apportionment of fault under the Comparative Negligence

Act and the Joint Tortfeasors Contribution Law does not turn on

whether the plaintiff is in a position to recover damages from

the defendant at issue” and that apportionment is not

necessarily barred by virtue of “statutory constraints on a

plaintiff’s ability to recover from a given defendant.” Id. at

103 (citing Brodsky, supra, 181 N.J. at 116; Bolz v. Bolz, 400

N.J. Super. 154, 161-62 (App. Div. 2008); Johnson v.

Mountainside Hosp., 239 N.J. Super. 312, 319 (App. Div.),

certif. denied, 122 N.J. 188 (1990)). In Town of Kearny, the

remaining defendants were entitled to an allocation of fault

against the defendant dismissed pursuant to the statute of

repose, with any allocation to the dismissed party reducing the

award of damages to the plaintiff. Id. at 103-04.

The appellate panel deciding Bolz, supra, 400 N.J. Super.

at 159-60, considered the interplay of the Tort Claims Act, the

Comparative Negligence Act and the Joint Tortfeasors

Contribution Law. In Bolz, the Tort Claims Act barred both the

plaintiff and a defendant from asserting claims against a public

entity and public employee because the plaintiff was found not

to have sustained an injury meeting the statutory criteria of

N.J.S.A. 59:9-2(d). Id. at 160-61. The panel held that the

25
defendant “was entitled to have the jury determine each party’s

percentage of negligence or fault in causing the injury,” and

that if that defendant was determined to be less than sixty

percent at fault, “he would be responsible to pay damages only

for his percentage of fault.” Id. at 160.

In Johnson, supra, 239 N.J. Super. at 319-20, another

appellate panel extended the allocation principle to a setting

in which a joint tortfeasor remained a defendant at trial but

was not liable to pay damages in excess of a statutory limit.

There, a section of the Charitable Immunity Act, N.J.S.A.

2A:53A-7 to -11, imposed a cap on the quantum of damages that

could be imposed on a hospital. Ibid. Despite that cap, the

Appellate Division held that the jury was permitted to allocate

a percentage of fault to the hospital, potentially reducing the

total damages to be awarded to the plaintiff. Ibid.

Our courts have thus held in several settings that even if

the claims against a defendant are dismissed by virtue of the

operation of a statute, apportionment of fault to that defendant

is required by the Comparative Negligence Act and the Joint

Tortfeasors Contribution Law. See Town of Kearny, supra, 214

N.J. at 103; Brodsky, supra, 181 N.J. at 116-18; Bolz, supra,

400 N.J. Super. at 159-60; Burt v. W. Jersey Health Sys., 339

N.J. Super. 296, 304-05 (App. Div. 2001). As those decisions

recognize, allocation of a percentage of fault to a joint

26
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 Comparative Negligence

Act, N.J.S.A. 2A:15-5.3(e), and the Joint Tortfeasors

Contribution Law, N.J.S.A. 2A:53A-2, -3.

3.

Against that backdrop, we consider whether the objectives

of the Tort Claims Act, the Comparative Negligence Act and the

Joint Tortfeasors Contribution Law are furthered by an

allocation of fault to the Association if the Morey defendants

present prima facie evidence at trial that negligent conduct by

the Association was a proximate cause of Abiah Jones’s death.

When, as here, we construe multiple statutes, we follow the

principle that “[s]tatutes that deal with the same matter or

subject should be read in pari materia and construed together as

a unitary and harmonious whole.” St. Peter’s Univ. Hosp. v.

Lacy, 185 N.J. 1, 14-15 (2005) (internal quotation marks

omitted) (quoting In re Adoption of a Child by W.P. & M.P., 163

N.J. 158, 182 (2000) (Poritz, C.J., dissenting)).

In accord with the legislative policy to ensure prompt

notice to public entities of potential claims against them, the

Tort Claims Act bars any claims against the Association in this

case. N.J.S.A. 59:8-8. In the allocation provisions of the

Comparative Negligence Act, and the contribution right created

27
by the Joint Tortfeasors Contribution Law, 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. Erny, supra, 171 N.J. at 99; see also

N.J.S.A. 2A:15-5.2(d), -5.3(e); N.J.S.A. 2A:53A-2, -3. A ruling

permitting the Morey defendants to seek an allocation of fault

to the Association at trial harmonizes and furthers the three

statutes’ separate goals.

Authorizing the Morey defendants to seek an allocation of

fault to the Association 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 which may not have had personal

jurisdiction over the Association, the operator of a New Jersey

charter school. When the Pennsylvania appellate court granted

defendants’ motion to dismiss on forum non conveniens grounds,

and this action was finally instituted in a New Jersey court,

the ninety-day period for the service of a Tort Claims Act

notice on the Association under N.J.S.A. 9:2-2, and the one-year

period for moving before a Superior Court judge for leave to

serve a late notice under N.J.S.A. 9:2-2, had long expired. The

equities thus weigh against plaintiffs, whose Pennsylvania

strategy thus deprived the Morey defendants of the opportunity

28
to preserve their right to file a cross-claim against the

Association.

Moreover, the procedural posture of this case allows for a

fair determination of the Association’s alleged fault. The

parties have long been on notice of the Morey defendants’

intention to seek the apportionment of a percentage of fault to

the Association at trial.6 Limited discovery, overseen by the

trial court in accordance with the court rules, will afford the

Morey defendants the opportunity to prove the fault of the

Association and give plaintiff the opportunity to gather

evidence to oppose those proofs.7

6 In Young, supra, the Court stressed the importance of notice
to the plaintiff, “as early in the case as possible,” that a
non-settling defendant would seek an allocation of fault to a
settling defendant, and cautioned courts and parties that a non-
settling defendant’s delay in providing that notice may bar the
allocation. 123 N.J. at 597. Rule 4:7-5, which codifies the
allocation procedure set forth in Young, requires that the
plaintiff be “fairly apprised prior to trial that the liability
of the settling defendant remained an issue and was accorded a
fair opportunity to meet that issue at trial.” R. 4:7-5(c); see
also Pressler & Verniero, Current N.J. Court Rules, comment 2.2
on R. 4:7-5 (2017). A defendant should similarly provide prompt
notice to the plaintiff and other defendants that it intends to
seek an allocation of fault to a joint tortfeasor dismissed from
the action by virtue of N.J.S.A. 59:8-8.

7 We do not agree with the Morey defendants that the Association
should remain a defendant in this case in order to provide
discovery. The Association need not be a defendant in order to
be subject to discovery. See, e.g., R. 4:14-7(a) (authorizing
service of subpoena on witness for deposition and production of
documents). On remand, the trial court should ensure that the
Association responds to all parties’ reasonable requests for
discovery.
29
 Accordingly, if the Morey defendants present prima facie

evidence of the Association’s negligence when the case proceeds

to trial, the trial court should instruct the jury to determine

whether the Morey defendants have proven by a preponderance of

the evidence that the Association was negligent and that its

negligence was a proximate cause of Abiah Jones’s injuries and

death.8

4.

Finally, we consider the Morey defendants’ argument that if

plaintiffs prevail at trial and the trial court molds the

judgment pursuant to N.J.S.A. 2A:15-5.2(d), the court should

limit the Morey defendants’ liability for damages to any

percentage of fault that the jury apportions to them, whether or

not that percentage meets the sixty-percent threshold of

N.J.S.A. 2A:15-5.3(a).

The Morey defendants rely on the Appellate Division’s

analysis in Burt, supra, 339 N.J. Super. at 305-10.

There, an Appellate Division panel harmonized the allocation

scheme of the Comparative Negligence Act and the Joint

8 In the limited record before the Court, the Morey defendants
do not describe the evidence that they would offer to prove that
the Association, the operator of a charter school, was negligent
and that its negligence was a proximate cause of Abiah Jones’s
amusement park accident. We take no position as to whether
there exists any such evidence in this case.
30
Tortfeasors Contribution Law with the Affidavit of Merit Act,

N.J.S.A. 2A:53A-27 to -29. Id. at 307-08. The trial court had

dismissed the plaintiff’s medical malpractice claim against the

anesthesiologists who had treated her because she did not timely

file an affidavit of merit supporting her malpractice claims

against them, as required by the Act. Id. at 302-03, 308. The

court granted the plaintiff’s application to bar the remaining

defendants, the treating hospital and nurses, from asserting at

trial that the dismissed anesthesiologists were negligent. Id.

at 309-10.

The Appellate Division reversed the trial court’s

determination. Id. at 311. It acknowledged the Legislature’s

intent, in enacting the Comparative Negligence Act and the Joint

Tortfeasors Contribution Law, was to “provide that ordinarily

each tortfeasor will respond in damages according to its own

adjudicated percentage of fault.” Id. at 304. The panel held

that the defendant hospital and nurses were entitled to an

allocation of fault against the dismissed anesthesiologists.

Id. at 307-10. It ruled that the “plaintiff’s recovery must be

diminished by” any percentage of fault attributed to the

anesthesiologists, even if the jury were to allocate sixty

percent or more of the fault to the remaining defendants. Id.

at 307. The panel reasoned:

31
 To hold otherwise would deprive the
[remaining] defendants of their right to seek
contribution from [the anesthesiologists],
even though the [remaining] defendants are
found to be sixty percent or more responsible
for the total damages. Again, the [remaining]
defendants should not be prejudiced by the
failure of plaintiff to file the required
Affidavit of Merit.

[Id. at 308.]

The panel recognized that it had “denied plaintiff the

ability to recover all her damages from the [remaining]

defendants if the jury found them to be sixty percent or more

responsible for plaintiff’s damages.” Id. at 309. It

concluded, however, that its remedy was essential to preserve

the remaining defendants’ statutory right to a cross-claim in

the event that the defendants were required to pay damages in

excess of their allocated percentages of fault. Ibid.

This Court has not previously decided a case in which a

party has requested that the trial court mold the judgment in

accordance with the Appellate Division’s analysis in Burt.9 In

9 Although we cited Burt in our opinions in Brodsky and Town of
Kearny on the question whether fault should be allocated to a
dismissed defendant, we did not address the molding of the
judgment in those cases, other than to note the Comparative
Negligence Act’s provisions authorizing a plaintiff to collect
one hundred percent of the damages from a defendant adjudicated
sixty percent or more at fault. See Town of Kearny, supra, 214
N.J. at 98, 102 (citing Burt on allocation issue, and noting
N.J.S.A. 2A:15-5.3(c)’s rule on liability of defendant found to
be sixty percent or more at fault); Brodsky, supra, 181 N.J. at
113 (citing Burt for principle that fault should be allocated to
party dismissed from action and damages award against remaining
32
the circumstances of this case, we consider the Appellate

Division’s analysis in Burt to effectively reconcile the

governing statutes.

The Comparative Negligence Act 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).

In a different subsection of the same statute, the Act 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 Joint Tortfeasors Contribution Law,

N.J.S.A. 2A:53A-3, defines that contribution claim. Considered

together, the three provisions envision an equitable outcome:

if the plaintiff collects the full amount of damages from a

defendant adjudged to be sixty percent or more but less than one

hundred percent at fault, that defendant may assert a

contribution claim against a joint tortfeasor for any damages in

excess of its allocated share. N.J.S.A. 2A:15-5.3(a), 5.3(e);

N.J.S.A. 2A:53A-3. With the benefit of its contribution claim

against joint tortfeasors, the defendant will ordinarily pay a

percentage of damages that is consonant with the factfinder’s

allocation of fault. Ibid.

defendant reduced, but characterizing rule as applicable to
defendants allocated less than sixty percent of fault).
33
 As the Appellate Division recognized in Burt, supra, a

joint tortfeasor’s statutory right to a dismissal of the claims

against it could disrupt the allocation scheme. 339 N.J. Super.

at 308. In that case, because the Affidavit of Merit Act barred

all claims against the anesthesiologist defendants, the

remaining defendants’ right to a contribution claim would have

been nullified if they were adjudged sixty percent negligent but

required to pay one hundred percent of the damages. Ibid. 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. 2A:15-

5.3(a), best furthered the Legislature’s equitable intent.

Ibid.

In light of the Association’s dismissal pursuant to

N.J.S.A. 59:8-8, the same issue might arise at trial in this

case. If the jury were to allocate sixty percent or more of the

fault -- but less than one hundred percent -- to the Morey

defendants, and the Morey defendants were required to pay one

hundred percent of the damages under N.J.S.A. 2A:15-5.3(a), they

would similarly be denied the benefit of their contribution

claim. In the setting of this case, that result would defeat

the Legislature’s clear objective: to fairly apportion

liability for damages in accordance with the factfinder’s

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allocation of fault. See N.J.S.A. 2A:15-5.2(a), (d), -5.3(a),

(c), (e); N.J.S.A. 2A:53A-2, -3.

Accordingly, 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. The jury should be

instructed that if it finds that the Morey defendants have

proven that the Association was negligent and that the

Association’s negligence was a proximate cause of Abiah Jones’s

death, it may allocate a percentage of fault to the Association

pursuant to N.J.S.A. 2A:15-5.2. If the jury allocates a

percentage of fault to the Association, the trial court shall

mold the judgment to reduce the Morey defendants’ liability to

plaintiffs in accordance with the percentage of fault allocated

to the Association. N.J.S.A. 2A:15-5.2(d). If the jury does

not find that the Morey defendants have met their burden to

prove that the Association’s negligence was a proximate cause of

the accident, it should not allocate fault to the Association.

In that case, an award of damages to plaintiffs will not be

affected.

We remind litigants and their counsel that any party –-

plaintiff or defendant -- intending to pursue a claim against a

public entity or employee subject to the Tort Claims Act must

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act expeditiously to preserve that claim. Such a party must

serve a notice pursuant to the Act within ninety days of the

accrual of the claim under N.J.S.A. 59:8-8, 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,” under N.J.S.A. 59:8-9. 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 Tort Claims Act notice on that entity

-- risks a reduction in any damages award by virtue of an

allocation of fault under the Comparative Negligence Act and the

Joint Tortfeasors Contribution Law. 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

Tort Claims Act notice on that entity -- may lose the benefit of

an allocation of fault to the public entity in accordance with

those statutes.

IV.

The trial court’s summary judgment determination is

reversed, and summary judgment is granted to the Association

dismissing with prejudice the Morey defendants’ third-party

contribution and common-law indemnification claims. The matter

is remanded to the trial court for further proceedings in

accordance with this opinion.

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

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