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Supreme Court of New York Dismisses Suit on Grounds of Lack of Notice and Absence of Proximate Cause

The Supreme Court of New York recently reviewed substantive grounds for summary judgment, such as lack of notice, absence of proximate cause, and improper party inclusion in its opinion and holding in the matter of Kimberly Squire v. City of New York, et al.  In Kimberly Squire, Plaintiff’s Complaint alleged injuries from a trip and fall due to Plaintiff stepping into a hole when she was disembarking a NYC MTA bus in Brooklyn, New York.  Plaintiff filed suit against the City of New York; New York City Transit Authority; and Metropolitan Transportation Authority.

Defendants New York City Transit Authority and Metropolitan Transportation Authority (together, “Transit Defendants”) filed a motion for summary judgment.  These Transit Defendants advanced multiple arguments to support their motion, including that defect identified by Plaintiff (the hole) was not the proximate cause of the accident, that same was not visible from the bus operator’s vantage point, and that Transit Defendants do not own, operate, or maintain the property where Plaintiff fell.  In addition, the Metropolitan Transportation Authority (“MTA”) claimed that it was not a proper party to the suit.  Later, the City of New York filed its own motion for summary judgment and argued lack of notice of the hole and that the City of New York did not create the alleged defect.

In assessing these arguments, the Court agreed that the MTA was not a proper party to the lawsuit and dismissed Plaintiff’s claims against MTA accordingly.  The Court also found that the New York City Transit Authority oversaw the subject bus and cited precedent holding that the MTA and its subsidiaries must be sued separately and were not responsible for each other’s torts.

As to New York City Transit Authority’s arguments about proximate cause – the Court noted that Transit Defendants were generally not responsible for maintaining bus stops, roadways, curbs, or sidewalks.  Further, the Court noted that a common carrier owed a duty to an alighting passenger to stop where they can disembark safely.  Assessing whether a duty to a plaintiff was breached when the driver stopped requires an analysis of whether the bus driver could have observed the dangerous condition from the driver’s vantage point.

The Court found that evidence in the record includes video and photo evidence which showed that Plaintiff was too far from the alleged hole for it to have caused her fall as she disembarked the bus.  Thus, Transit Defendants’ motion for summary judgment was granted, as evidence showed that the hole was not the proximate cause of Plaintiff’s accident.

Finally, the Court addressed the City of New York’s argument that it lacked notice of the alleged hole.  The Court found that although Plaintiff presented evidence of two permits and inspections for nearby locations, she failed to raise a triable issue of fact because the evidence presented did not relate to the specific defect.  On the contrary, the Court held that the City of New York had adequately demonstrated that it did not have prior written notice of the defect.  Accordingly, the Court found that City of New York has articulated a prima facie case that it lacked written notice and, thus, was entitled to summary judgment.  With this, Plaintiff’s claims against all Defendants were dismissed.

New York practitioners are encouraged to review this opinion as a refresher of New York’s standards on summary judgment.  Same opinion is also instructive as to standards of alleging breaches of common carriers’ duties (to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area).

Pennsylvania Superior Court Interprets “Absolute Auto Exclusion” Against Insurer Due to Ambiguity

In Chris Eldredge Containers, LLC v. Crum & Foster Specialty Insurance Company, et al., the Superior Court of Pennsylvania addressed the obligation of the Defendant insurers to defend and indemnify their insured, Eldredge Containers, in connection with a personal injury lawsuit.

The underlying personal injury lawsuit arose from an incident in which an Eldredge Containers employee, driving an Ottawa Terminal Tractor, backed into a stationary service truck owned by Safety-Kleen Systems, Inc. (“Safety-Kleen”) and occupied by Safety-Kleen’s employee, Craig Logan (“Logan”).  As a result, Logan filed suit against Eldredge Containers, alleging he sustained injuries from the collision.

Eldredge Containers sought defense and indemnity from, inter alia, the insurance carriers Crum & Foster (“C&F”) and National Union.  Both carriers disclaimed coverage.  Thereafter, Eldredge Containers filed a declaratory judgment action seeking a declaration that the insurers were required to provide it with indemnification and defense in connection with Logan’s underlying personal injury  lawsuit.

In the declaratory judgment action, C&F, Eldredge Containers’ general liability carrier, filed a motion for judgment on the pleadings.  Therein, C&F argued that while it had issued a Commercial General Liability policy that provided coverage for damages arising from bodily injury, that policy contained an “Absolute Auto Exclusion.”  That exclusion provided that there was no coverage for “bodily injury…arising out of or resulting from the ownership, maintenance, use[,] or entrustment to others of any…auto…”  C&F argued that the Absolute Auto Exclusion was triggered because Logan’s Safety-Kleen service truck was an “auto” under the definition of the policy and, therefore, Logan’s alleged injuries arose out of the ownership or use of an “auto.”  National Union, Eldredge Containers’ excess carrier, similarly filed a motion for judgment on the pleadings, arguing that it had no duty to defend or indemnify Eldredge Containers absent a corresponding duty under an underlying policy.

The trial court granted C&F and National Union’s motions for judgment on the pleadings, dismissing Eldredge Containers’ declaratory judgment action.  Thereafter, Eldredge Containers appealed.  The appellate court noted that “[t]his appeal involves the interpretation of an insurance policy, which ‘is a question of law that we will review de novo.’”  The court then cited various cases from the Commonwealth of Pennsylvania to support the propositions (1) that when a coverage clause is ambiguous, defined as being “reasonably susceptible of different constructions and capable of being understood in more than one sense,” the clause is to be “interpreted broadly so as to afford the greatest possible protection to the insured;” and (2) that exceptions to an insurer’s general liability are to be interpreted narrowly against the insurer.

Applying the above-referenced rules, the appellate court found that the C&F Commercial General Liability policy’s Absolute Auto Exclusion was ambiguous because it did not specify a causation standard or identify whose ownership or use of an auto triggers the exclusion.  The court cited prior Pennsylvania decisions which found the phrase “arising out of” to be ambiguous, such that it must be strictly construed against the insurer to exclude only those injuries that are proximately caused by the auto.  Here, the court noted that in the underlying personal injury action, it was the Ottawa Terminal Tractor, a non-auto, and not the Safety-Kleen truck, that was the proximate cause of Logan’s injuries.

The appellate court similarly found that the ownership clause in the Absolute Auto Exclusion was ambiguous, because it did not specify whose “ownership, maintenance, use[,] or entrustment to others of any…auto” triggers the exclusion.  The court thus strictly construed this clause against the insurer, finding that the exclusion was only triggered by the insured’s (Eldredge Containers’) “ownership, maintenance, use[,] or entrustment to others of” an auto.  In this case, the only “auto” at issue was Logan’s Safety-Kleen truck, which Eldredge Containers did not own, maintain, use, or entrust to others.  The Absolute Auto Exclusion thus was not triggered.

The appellate court concluded that because the Absolute Auto Exclusion was not triggered, C&F and National Union both had a duty to indemnify and defend Eldredge Containers in the underlying suit.  The court thus reversed the trial court’s decision and remanded the case for further proceedings consistent with its opinion.

Takeaway: Pennsylvania insurers should be aware that Pennsylvania law favors the broad interpretation of ambiguous coverage clauses to provide the greatest amount of protection to policyholders, while narrowly interpreting coverage exceptions and exclusions.

Appellate Division Opinion Reinforces Importance of Comparative Analysis in Context of Causation and Pre-Existing Conditions

By: Courtney Todaro, Law Clerk
Edited By: Nuo (Norman) Jiang, Esq.

In its holding and opinion in Zavis v. NJM Ins. Co., the Appellate Division of the Superior Court of New Jersey clarified standards for an injured Plaintiff to demonstrate that her injuries were caused by a motor vehicle accident.

On February 1, 2019, then-74-year old Charlotte Zavis (hereafter “Plaintiff”) allegedly sustained personal injuries as a front passenger in a motor vehicle accident.  Plaintiff alleged she sustained injuries to her shoulders, neck, and back because of the accident.  Notably, Plaintiff did not assert a claim of aggravation or exacerbation of any pre-existing injuries.  After settling the third-party case, Plaintiff filed a claim for additional underinsured motorist (UIM) coverage against New Jersey Manufacturers Insurance Company (hereafter “Defendant”).

As part of her diagnosis and treatment, Plaintiff had MRIs taken of her lumbar and cervical spine on April 4, 2019.  According to Plaintiff’s treating expert Dr. Wayne Fleischhaker’s report, Plaintiff sustained herniations of the cervical spine at C3-4 and C5-6, bulging discs at C4-5 and C6-7, and bulging discs in the lumbar spine at L3-4 and L4-5 with lumbar radicular syndrome.  In Dr. Fleischhaker’s treatment and progress notes, he noted that Plaintiff had “cervical disc degeneration, mid-cervical region, [at an] unspecified level.”

Discovery of Plaintiff’s medical history revealed that she had a pre-existing back condition.  Specifically, Plaintiff had undergone at least two prior lumbar MRIs: one in 2000, which revealed diffuse disc bulges at L3-4 and L4-5 and “multilevel loss of the normal T2 disc signal consistent with multilevel degenerative disc disease;” and another in 2016 after a slip and fall injury which revealed lumbar disc bulges at L3-4 and L4-5.

In his May 14, 2023 report, Dr. Fleischhaker opined that Plaintiff “suffered permanent injuries to her cervical and lumbar spines and an aggravation of pre-existing asymptomatic degenerative changes in the spine” due to the 2019 accident.  Conspicuously, the expert did not provide an explanation of what parts of the spine the “degenerative changes” affected, or perform a comparative analysis of Plaintiff’s pre- and post-accident conditions.

Defendant moved for summary judgment, arguing that Plaintiff could not establish negligence due to the pre-existing condition in her spine, and could not prove causation without a comparative analysis.  Plaintiff opposed the motion, relying on Davidson v. Slater, 189 N.J. 166 (2007), to claim that no comparative analysis was required because she did not assert aggravation or exacerbation of a pre-existing injury.  The Superior Court was not convinced by Plaintiff’s argument and granted Defendant’s motion for summary judgment.  The Superior Court agreed with Defendant and did not find causation, and highlighted Plaintiff’s medical history and Plaintiff’s own expert report of her pre-existing and degenerative conditions as support.

In affirming the Superior Court’s granting of Defendant’s motion for summary judgment, the Appellate Division explained that while a plaintiff is not required to produce a comparative analysis when they do not claim aggravation of pre-existing injuries, a defendant “has the right to raise the issue of prior injuries and seek discovery on them.”  In this case, Defendant utilized this right to seek discovery and argued that Plaintiff could not prove causation.  Reiterating the standard established in Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (App. Div. 2004), the Appellate Division asserted that Plaintiff had the burden of proving her injuries were “causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury.”  Plaintiff herein could not prove either.  Without a comparative medical analysis, “the jury would be left to speculate” about the cause of Plaintiff’s injuries and effect of the accident.

Judge Bishop-Thompson partially dissented from the majority opinion.  While she concurred with the majority’s conclusion that a comparative analysis was necessary for Plaintiff’s lumbar injuries, Judge Bishop-Thompson disagreed from the majority’s requiring Plaintiff present a comparative analysis for the alleged “new” cervical spine injury.  She reasoned that no pre-existing condition affecting Plaintiff’s cervical spine was alleged, the previous MRIs were only of Plaintiff’s lumbar spine, and there was no specific record of a cervical degenerative condition prior to the accident, only multilevel degenerative disc disease.

Takeaway: New Jersey practitioners are advised to review this case as a reminder that causation is an essential element of any negligence case.  Even if plaintiffs do not raise the issue of aggravation or exacerbation of pre-existing injuries, defendants do have a right to raise prior injuries as a defense and are entitled to discovery into same.  As such, a comparative analysis remains the best method to solidify a causal link between a new accident and new symptoms, especially if juries are put in position to speculate on causation.

_________________________________________________________

Courtney Todaro is one of the firm’s 2025 Summer Law Clerks. She is a rising 3L at the Drexel University Thomas R. Kline School of Law in Philadelphia, PA. After serving with AmeriCorps, Courtney joined the law school as a Public Interest Scholar and has continued to fuel her passion for teaching by serving as a Dean Scholar for both Civil Procedure and Property. Last summer, she interned with the New Jersey Attorney General’s Office in the Education and Higher Education Division in Trenton, NJ. She also completed a project internship with the Cheshire Law Group, where she assisted with revising the fourth edition of Stern’s Pennsylvania Nonprofit Corporation Law Treatise. This past semester Courtney served as an intern at the Education Law Center in Philadelphia, PA. She was recently selected to participate in the Center for Public Research and Leadership’s Structural Change in Education Practicum next semester at Columbia Law School. After graduation, Courtney plans to pursue a career in School and Special Education Law.

Sovereign Immunity Bars Suit Against The College of New Jersey in a Pennsylvania Court of Common Pleas Decision

A plaintiff unsuccessfully attempted to sue The College of New Jersey (“TCNJ”) in a defamation and slander lawsuit based upon alleged actions by one of its employees.

The case arose out of comments allegedly made by Defendant Tabitha Dell’Angelo about Plaintiff Timothy Daly at a February 13, 2024, Central Bucks Action Meeting and a February 25, 2024, Op-Ed on the Bucks County Beacon website. Plaintiff filed a Complaint in the Bucks County Court of Common Pleas of Pennsylvania alleging that Defendant Dell’Angelo made the comments within the course and scope of her employment with The College of New Jersey making TCNJ vicariously liable for Defendant Dell’Angelo’s actions by the doctrine of respondeat superior.

TCNJ, represented by Capehart & Scatchard, P.A., filed Preliminary Objections to Plaintiff’s Complaint, arguing that the Bucks County Court of Common Pleas lacked jurisdiction because TCNJ was entitled to sovereign immunity, as it was/is an arm of the State of New Jersey. TCNJ also argued that it was entitled to all the privileges and immunities of the New Jersey Tort Claims Act N.J.S.A. 59:1-1 et seq. As such, Plaintiff’s Complaint must be dismissed because Plaintiff failed to file a notice of tort claim pursuant to N.J.S.A. 59:8-8.

Sovereign immunity bars a suit against a state in another state absent consent. Simply put, a person cannot sue the State of New Jersey in a Pennsylvania state court absent consent by New Jersey. The question then turned to whether TCNJ was considered the “State of New Jersey” to invoke sovereign immunity.

In Marshall v. SEPTA, 300 A.3d 537 (Pa. Commw. 2023) the Commonwealth Court of Pennsylvania dismissed an action against New Jersey Transit in Pennsylvania based on sovereign immunity. The Marshall court held that New Jersey Transit was an arm of the State of New Jersey and cannot be sued in another state absent consent. The District of New Jersey has also held that The College of New Jersey is an arm of the State of New Jersey. See Messina v. Coll. of N.J., 624 F. Supp. 3d 523, 529 (D.N.J. 2022). These prior decisions support that the Bucks County Court of Common Pleas lacked jurisdiction over TCNJ.

TCNJ also argued that Plaintiff failed to file a notice of tort claim. N.J.S.A. 59:8-8 bars a claimant from instituting a claim unless the claimant provides notice to the public entity within 90 days of the accrual of the claim. N.J.S.A. 59:1-3 defines the State as a public entity. TCNJ additionally argued that pursuant to Flamer v. N.J. Transit Bus Operations, 414 Pa. Super. 350 (Pa. Super. 1992), Pennsylvania courts are required to apply the immunities and provisions of the New Jersey Tort Claims Act because they are not repugnant to Pennsylvania public policy. Therefore, it was found that Plaintiff was required to notify TCNJ of the potential claim within 90 days of February 13, 2024, and February 25, 2024. Plaintiff simply never filed a timely notice as required.

Ultimately, the Bucks County Court of Common Pleas sustained TCNJ’s Preliminary Objections and dismissed Plaintiff’s Complaint without prejudice and allowed Plaintiff 20 days to file an Amended Complaint. Plaintiff filed an Amended Complaint renewing claims against Defendant Dell’Angelo, but did not bring any new or amended claims against TCNJ. This holding protected the rights of the State of New Jersey by reenforcing the doctrine of sovereign immunity.

Takeaway: Practitioners defending the State of New Jersey and connected public entities in civil matters in Pennsylvania should remain aware of the defenses under sovereign immunity to which the State of New Jersey is entitled; but care must be placed, and precedent should be cited, in arguing whether a public entity is considered the “State.” The NJ Tort Claims Act also provides the State of New Jersey with another layer of procedural protection and defense practitioners should remain aware of the State’s right to enforce stringent filing and timing requirements imposed upon plaintiffs and claimants.

New York Supreme Court Granted Summary Judgment in Favor of Chartered Bus Company Which Fulfilled Common Carrier’s Duty of Care to an Alighting Passenger

By: Alyson L. Knipe, Esq. and Stephen J. Alexander, Esq.

The New York Supreme Court, Bronx County granted summary judgment in favor of a chartered bus company, finding that the defendant bus company met its duty of care to an alighting passenger in O’Sullivan v. American Golf Corp. d/b/a/ Pelham Bay & Split Rock Golf Course and Omega Express, LTD. (Hon. Patsy Gouldbourne, J.S.C., January 2, 2025).

Plaintiff alleged that he sustained injuries on July 16, 2018, for tripping and falling on a cobblestone driveway at a golf course when he was alighting from Defendant’s charter bus.  A common carrier’s duty of care to an alighting passenger is to “stop at a place where the passenger may safely disembark and leave the area” and “towards that end to exercise reasonable and commensurate care in view of the dangers to be apprehended.”  (Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612 (1st Dep’t 1987)).  Once a safe alighting point is provided, the bus operator’s duty is complete.

Whether the defendant breached its duty to provide a passenger with a safe place to alight from the bus depends on whether the bus operator could or could not have observed the dangerous condition from the operator’s vantage point (see Lovato v. New York City Tr. Auth., 50 A.D.3d 969, 971, 855 N.Y.S.2d 685 (2d Dep’t 2008)).

In the case at bar, the bus driver, who had never been to the subject premises, was given no instructions or directions as to where to park the bus when he arrived at the golf course.  There were also no signs designating parking, and the driver stopped the bus in the most logical place – in the parking lot adjacent to the front entrance door to the golf club.  The parking lot surface was cobble stone.

Once the bus stopped, the driver got off the bus, stood next to the bus doors as eight passengers alighted from the bus in single-file without incident.  He then opened the luggage compartment for removal of the golf clubs from underneath the bus.  The bus driver did not observe any missing stones.

The Court found that the bus company established a prima facie entitlement to summary judgment, as the bus driver stopped the bus in a parking lot adjacent to the front entrance to the golf clubhouse.  Additionally, the Court found that the parking lot surface was cobblestone, that there were no signs or cones indicating that patrons should alight in another designated area, and there were other passenger cars stopped in the area.  The Court further held that there was no foreseeable harm in the area where the bus was stopped and that there was no evidence that the bus driver was aware of or reasonably should have been aware of any dangers to be apprehended.

The court concluded that the Plaintiff failed to define the duty of care that was owed and the actionable breach of that duty.

Takeaway: NY civil defense practitioners should be aware that common carriers owe specific duties to alighting passengers, and prevailing on a Motion for Summary Judgment requires an uncontroverted showing that the common carrier fulfilled all specific duties.

Supreme Court of New Jersey Permitted Seeking Contribution From Non-Party Out-of-State Joint Tortfeasors Under New Jersey Joint Tortfeasor Contribution Law

In its holding and opinion in Est. of Spill v. Markovitz, (A-34-23), 2025 N.J. LEXIS 211 (March 11, 2025), the Supreme Court of New Jersey contemplated whether a jury may allocate fault to an out-of-state tortfeasor not subject to personal jurisdiction in New Jersey.

The underlying malpractice and wrongful death matter stems from medical care and surgery received by deceased Crystal Walcott Spill (“Spill”).  The Estate of Spill (“Plaintiff”) alleges that up to the time of her passing, Spill suffered from lupus and was under the care of Dr. Jenny T. Diep, M.D., a NY rheumatologist.  Concurrently, Spill also received unrelated care from Dr. Jacob E. Markovitz, M.D., a NJ gynecologist.  In the course of his care, Dr. Markovitz found low-grade squamous intraepithelial lesions by colonoscopy and suggested a loop electrosurgical excision procedure (“LEEP” or, i.e. “the surgery”) to remove the abnormal tissue, which Spill scheduled for February 16, 2018.

Prior to the scheduled LEEP, Spill had an appointment with rheumatologist Dr. Diep, wherein laboratory testing revealed elevated creatinine levels and high blood pressure.  In response, Dr. Diep doubled Spill’s blood pressure medication and recommended Spill to see a nephrologist.  On February 15, 2018, one day before her scheduled LEEP, Spill had an initial visit with Dr. Holly M. Koncicki, M.D., a NY nephrologist.  Dr. Koncicki performed additional tests but did not receive the results or have an opportunity to discuss with Dr. Diep before Spill’s LEEP.  Spill went ahead with the LEEP on February 16, 2018, performed by Dr. Markovitz, in which during the application of anesthesia, Spill suffered a significant cardiac event, and sadly passed away later that day.  On February 17, 2018, Dr. Koncicki’s records showed that Spill’s test results, which revealed critically elevated creatinine and potassium levels, had been available on the evening of her death.

Suit was filed by Estate of Spill (“Plaintiff”) in Superior Court against the group of doctors and practices involved in Spill’s care and surgery, including Dr. Koncicki, Dr. Markovitz, and the anesthesiologist, and their practices, and others (“Doctor Defendants”) on a theory that they negligently proceeded with the LEEP without waiting for Dr. Koncicki’s test results.  Saliently and significantly, Plaintiff never once asserted claims against Dr. Diep as a Defendant through the pendency of her lawsuit.  Notwithstanding, the Doctor Defendants moved to allocate fault against Dr. Diep, and also filed a third-party complaint against Dr. Diep, and produced at least one expert report highlighting Dr. Diep’s possible negligence in her care of Spill; while Dr. Diep moved to dismiss the third-party complaint for lack of personal jurisdiction.

Superior Court sided with Dr. Diep, and dismissed the third-party complaint against Dr. Diep AND denied Doctor Defendants’ motion to include Dr. Diep on the verdict form for apportionment of fault.  Superior Court found no precedent to support inclusion of Dr. Diep on the verdict form, as Dr. Diep was an alleged joint tortfeasor but was also a non-party, over whom the court did not have personal jurisdiction.  The Appellate Division affirmed Superior Court, and held that a New Jersey court does not have personal jurisdiction over Dr. Diep as an out-of-state individual, and that Dr. Diep is neither a party nor a tortfeasor, and that there should not be an allocation as to such an individual.

Before the Supreme Court, the Doctor Defendants argued that the court’s lack of jurisdiction over Dr. Diep should not deprive them of the jury’s apportionment of fault as to Dr. Diep’s responsibility for harm to Spill.  Doctor Defendants insisted that Dr. Diep’s absence from the verdict sheet would lead to an unjust imposition of liability because all responsible tortfeasors will not be included in the jury’s apportionment of fault.

In opposition, Estate of Spill (“Plaintiff”) contended that the Comparative Negligence Act (“CNA”) forbids apportionment of fault to non-party Dr. Diep, and maintained that there is no authority to support Doctor Defendants’ position.  Plaintiff further argued Doctor Defendants mistakenly relied on the Joint Tortfeasor Contribution Law (“JTCL”) because the CNA is the sole authority on jury allocation of comparative fault percentages among multiple parties.  Plaintiff argued for a traditional contribution-after-judgment claim to address Doctor Defendants’ allegation of Dr. Diep’s fault.

Having these arguments, the Supreme Court affirmed but modified Appellate Division’s Judgment, and held that an individual outside the reach of New Jersey’s jurisdiction is not a party within the definition of the CNA  for purposes of allocation, such an individual may still be a joint tortfeasor for purposes of seeking contribution under the JTCL.

All parties agree that the Superior Court lacked personal jurisdiction over Dr. Diep in this matter.  Under the prevailing policy of not letting the procedural status of a joint tortfeasor affect substantive right of contribution as articulated in Mejia v. Quest Diagnostics, Inc., 241 N.J. 360, 371 (2020), the Supreme Court’s reasoning included a thorough examinations of the CNA and the JTCL and found that they differ in that the CNA allows allocation of fault during a trial only to a “party” or “parties,” whereas the JTCL allows “joint tortfeasors” to seek contribution after a trial from other “persons” alleged to be “liable in tort for the same injury.”

The Supreme Court also examined a line of relevant cases including Young v. Latta, 123 N.J. 584  (1991), which held that so long as a non-settling defendant provides the plaintiff with fair and timely notice that it intends to assert the liability of a settling defendant, cross-claims are not required to seek an allocation against that settling defendant.  Even though the language of the CNA did not provide for apportionment of fault to settling tortfeasors, the court recognized that a defendant who settles and is dismissed from the action remains a party to the case for the purpose of determining the non-settling defendant’s percentage of fault.

The Supreme Court also examined Kranz v. Schuss, 447 N.J. Super. 168 (App. Div. 2016), in which a plaintiff launched two parallel suits in NJ and NY to recover for the same harm, but the NY defendants settled, whereas the NJ defendants did not; the court, having found no prejudice due to the relatedness in the two actions, permitted the non-settled NJ defendants to obtain credit for the settled NY defendants for the amount of fault found by jury.

The Court only found guidance in Young and Kranz, but not precedent, and differentiated these cases from the Spill matter at bar, in that Young and Kranz involved apportioning fault to settled defendants, whereas Spill matter involved apportioning fault to a non-party tortfeasor with no settlement.

Turning back to Spill, the Supreme Court emphasized that Dr. Diep was never made a party to the case within definition of the CNA, and that Plaintiff deliberately chose not to pursue action against Dr. Diep in NJ or NY – and cannot be compelled to pursue action.  To remedy the prejudicial hampering effect this would have on the Doctor Defendants’ ability to pursue Dr. Diep for contribution, the Supreme Court noted that the JTCL allows any joint tortfeasor to seek contribution from any other “persons” alleged to be “jointly or severally liable in tort for the same injury,” and which therefore would not bar the Doctor Defendants from independently pursuing Dr. Diep for contribution.

Take-Home Message: NJ civil defense practitioners are encouraged to review this opinion and the authority cited and analyzed therein, with special attention to Court’s breakdown of both the CNA and the JTCL.  Practitioners must remain cognizant that the CNA has a requirement of “party” whereas JTCL has a (more lax) requirement of “person.”  While public policy favors fair apportionment of fault, procedural standing of parties at the outset of the litigation will impact joint tortfeasors’ timing, ability, convenience, and cost in seeking contribution from other joint tortfeasors.

 

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