New
Jersey is one of a number of states which have adopted a form of the
comparative negligence rule. Under the
comparative negligence doctrine, a plaintiff may recover if his/her negligence
contributed to the damages provided their negligence was not greater than the
party or parties against whom recovery is sought (not greater than 50%). However, the damages to which an injured
party would be entitled will be diminished by the percentage of negligence
attributable to the recovering party. N.J.S.A.
2A:15-5.1 et. seq. The purpose of the
comparative negligence statute was to eliminate the harsh doctrine of
contributory negligence which bars any recovery to a plaintiff if his/her own
negligence contributed to the injury – regardless of how great or how slight
the contributory negligence was.
Further,
the New Jersey Joint Tortfeasor Act allows a plaintiff to recover the full
amount of damages from any joint tortfeasor determined to be 60% or more responsible
for the total damages. N.J.S.A.
2A:15-5.3(a) In the alternative, any
party found to be less than 60% responsible for the total damages is only
responsible for the percentage of damages attributable to that party. N.J.S.A. 2A:15-5.3(c) In the event a party is required to pay more
than his share of the damage award in accordance with the Joint Tortfeasors
Act, he/she may seek contribution from the other joint tortfeasors for the
excess over his/her pro rata share. N.J.S.A.
2A:53A-3.
The
entire controversy doctrine requires that all aspects of a controversy among
those persons who are parties to an action be presented before the Court at one
time. In the event all actions are not
joined in a single litigation, the parties waive their rights to pursue a claim
at a later time. See Falcone v. Middlesex County Med. Soc.,
47 N.J. 92. The purpose of the entire
controversy doctrine is to encourage comprehensive and conclusive litigation
determinations, to avoid fragmentation of litigation, to promote party fairness
and judicial economy and efficiency.
Because the entire controversy doctrine is equitable in nature, the
entire controversy doctrine would be barred where it would be unfair in the
totality of the circumstances and would not promote any of the objectives named
above. In addition, there are
exceptions where the entire controversy doctrine is inapplicable. For example, if the first cause of action
did not result in an adjudication of the merits of the case, a successive
action is not precluded. See
Arena v. Borough of Jamesburg, 309 N.J. Super 106 (App. Div. 1998). Also, the doctrine does not apply to
component claims either unknown, unarisen or unaccrued at the time of the
original action. Circle Chevrolet v.
Giordano, 142 N.J. 280, 294 (1995).
To date,
the applicability of the entire
controversy doctrine in subrogation cases is unclear. In the cases Humble Oil & Refinancing Co. v. Church,
et al, 100 N.J. Super. 495 (App. Div 1968) and Rossum v. Jones, et al,
97 N.J. Super. 382 (App. Div 1967), an exception to the entire controversy
doctrine was recognized where plaintiff nominally sued for property damage, but
failed to join a personal injury claim arising from the same accident. The Court noted that the property damage
claim is ordinarily brought by the insurance carrier and allowed the plaintiff
to proceed with the personal injury action.
Spoliation
occurs when pertinent evidence in a prospective civil action or pending civil
action has been destroyed, thereby interfering with the opposing party’s
ability to prepare the case for trial.
The plaintiff has a duty to preserve all evidence which forms the
subject matter of the case and spoliation of evidence becomes an issue when
evidence is not available for inspection by an adverse party.
The Duty to Preserve
Evidence Arises When There Is:
1. A
pending or probable litigation involving the defendant;
2. Knowledge
by the plaintiff of the existence of the likelihood of litigation;
3. Forseability
of harm to the defendant (disregarding the evidence would be prejudicial to the
defendant); and
4. Evidence
which is relevant to the case.
A plaintiff who destroys
evidence interferes with the defendant’s ability to defend the lawsuit. If spoliation occurs, the Court may impose
sanctions on the plaintiff and there have been cases in which all evidence
relating to the destroyed evidence was excluded at trial and the defendant was
awarded counsel fees. R. 4:23-4. For example, in Aetna Life and Casualty
Co. v. Inet Mason Contractors, 309
N.J. Super. 358 (1998), the plaintiff failed to preserve the vehicle which was
involved in the automobile accident and which formed the subject matter of the
lawsuit. Then, at trial the plaintiff
sought to enter their expert witness’ reports pertaining to the damaged vehicle
into evidence. Id. The Court in Aetna Life and Casualty Co. ruled that the expert witness’ reports could
not be entered into evidence because the reports would unfairly prejudice the
defendant’s ability to defend the case.
See Aetna Life and Casualty Co. at 369. Moreover, the Court held that, in instances
where all other sanctions will not remedy the prejudice suffered by the
defendant, as a remedy of last resort, the Court may dismiss the plaintiff’s
case with prejudice. See Aetna
Life and Casualty Co. at 369.
The New Jersey Courts have
long recognized the tort of intentional spoliation of evidence and more recent
decisions have recognized negligent spoliation of evidence as an independent
tort. To maintain a negligent spoliation
of evidence claim, “ a plaintiff must allege sufficient facts to support a
claim that the loss or destruction of the evidence caused the plaintiff to be
unable to prove an underlying lawsuit.”
Callahan v. Stanley Works, 306 N.J. Super. 488, 497
(1997). However, “the scope of duty to
preserve evidence is not boundless; a potential spoliator need do only what is
reasonable under the circumstances.” Hirsch
v. General Motors Corporation, 266 N.J. Super. 222, 251 (1993).
Fraudulent concealment of evidence differs from spoliation in that
fraudulent concealment of evidence is a tort whereby a victim of fraudulent
concealment of evidence may recover compensatory damages (compensate the
injured party for the injury sustained; restore an injured party to the
position he or she was in prior to the injury) and punitive damages (damages
above what will compensate an injured party; intended to punish a party for
wrongful conduct) from defendant or third party spoliator of evidence. To succeed on a claim of fraudulent
concealment of evidence, the plaintiff must prove more than mere negligence,
but it is not necessary to prove an evil-minded act on the part of the defendant.
[1] Moreover, the spoliator’s intent level does
not affect liability for destruction of evidence resulting in interference with
discovery; rather it has a bearing on the remedy to be administered for that
spoliation.
The Elements of Fraudulent
Concealment of Evidence Are:
1. The
defendant had a legal obligation to disclose evidence to the plaintiff;
2. The
evidence was material to the defendant’s case;
3. The
defendant could not have readily learned of the concealed information
without the defendant disclosing it;
4. The
defendants intentionally failed to disclose evidence to the plaintiff;
and
5. The
plaintiff was harmed by relying on non-disclosure. See Allis
Chalmers Corporation v. Liberty Mutual Insurance Company, 702 A.2d 1336,
1339 (N.J. 1997).
Contract
Claims:
_ Contract Claims Which Do Not Involve the Sale of Goods:
The statute governing
contract claims allows a claimant to file a claim up
to (6) six-years after the
contract has been signed. N.J.S.A.
2A:14-1.
_ Contracts for the Sale of Goods:
Under the Uniform Commercial
Code ,the statute of limitations for contract claims pertaining to the sale of
goods is four (4) years. The parties
may reduce this time period for not less than one (1) year, but they can not
contract to extend the limitation period.
N.J.S.A. 12A:2-725(1). A
cause of action for the sale of goods accrues when the breach occurs. The breach is deemed to occur at the time of
delivery regardless of the aggrieved party’s lack of knowledge of the breach. N.J.S.A.
12A:2-725(2).
_ Breach of an Express Warranty of Future Performance:
For these types of claims
the four (4) year statute of limitations period does not begin until the actual
breach was or should have been discovered.
N.J.S.A. 12A:2-725(2). In
order for the court to find a warranty of future performance, there must be a
specific reference to a future time in the contract. For example, there is a warranty of future performance when the
seller of the goods warrants to repair and maintain the goods for a period of
time in the future.
Products Liability Claims:
_ Cases Involving Damage to
an Individual and Real and Personal Property:
New
Jersey law allows for an individual or a subrogating carrier to bring a case
against a manufacturer for a defective product
under theories of strict liability and tort.
The statute of limitations for such actions is six (6) years, commencing
on the date of loss.
_ Cases Involving Damage Only to the Product:
The New Jersey Supreme Court
has held that when a party is seeking only economic damages for the loss or
damage to a product and not for damage to other persons or property, the party
will be limited to the statute of limitations inherent in the terms of the
contract. Alloway v. General Marine
Industries, 149 N.J. 620, 641, 642 (1997).
The court in Alloway held that contract principles are better
suited for claims of damage to the product itself and tort claims are only
proper when the damage is to individuals and/or other property. See Alloway at
641-642. The implication of this
ruling is that the statute of limitations begins to run on the date of purchase
and the injured party is not entitled to bring a strict liability or punitive
damage claims against the manufacturer of the product. However, the Alloway decision did
outline certain factual situations where the four (4) year statute of
limitations may not apply, such as cases where the product itself is considered
dangerous, where there is a disparity in the bargaining power of the parties
and in cases involving fraud or unconscionability. Alloway at 639, 641.
Therefore, claims involving solely damage to the product itself are
governed by the Uniform Commercial Code (UCC).
The ramifications of these
claims being governed by the UCC are:
1. The
legal remedies are generally limited to the actual warranty given and any other
express or implied warranties, such as fitness and for a particular purpose and
of merchantability; and
2. Under
the UCC the time period for the statute of limitations starts upon the date of
delivery of the product as opposed to the date when the defect was discovered.
Tort Claims:
_ Real or Personal Property Damage:
Pursuant to N.J.S.A.
2A:14-1, “every action at law for trespass to real property, any tortious
injury to real or personal property, for taking, detaining or converting
personal property, for replevin of goods or chattels...shall be commenced
within six (6) years next after the cause of action shall have accrued.” Thus, an injured party may not have
knowledge of the injury or the extent of the injury before the statute begins to run. P.T. & L. Const. Co. Inc. v. Madigan and Hyland, Inc.,
245 N.J. Super. 201 (1991). Subrogation
cases for property damage, other than those based on a product liability theory
are governed by the six (6) year statute of limitations.
_ Injury to an Individual:
Every action at law for an
injury to the person caused by a wrongful act, neglect or default of any person
within New Jersey must be commenced within two (2) years next after the cause
of action has accrued or the injury has occurred. N.J.S.A. 2A14-2.2.
However, for medical malpractice claims and informed consent claims, the
statute begins to run when the injured party becomes aware of their injuries or there are enough facts
sufficient to support their claim.. Baird
v. American Medical Optics, 155 N.J. Super 54 (1998).
The New Jersey Tort Claims
Act provides that a public entity is
not liable for any injury, whether such injury arises out of an act or omission
of the public entity or employee. N.J.S.A.
59:2-1. Therefore, this act only applies
to claims grounded in tort and the negligent actions of state employees. It does not affect liability based on
contract and the right to obtain relief other than damages against the public
entity or its employees. N.J.S.A. 59:1-4.
The Tort Claims Act imposes
certain limitations on judgments against public entities. N.J.S.A. 59:9-2: First, the act provides that no insurer
or other person shall be entitled to bring an action under a subrogation
provision in an insurance contract against a public entity or public employee. N.J.S.A.
59:9-2 (e). Furthermore, if
claimant receives or is entitled to receive benefits for the injuries allegedly
incurred from an insurance policy or any other source other than a joint
tortfeasor, such benefits shall be disclosed to the court and the amount
thereof which duplicates any benefit in the award shall be deducted from any
award against a public entity recovered by such claimant. Second,
a judgment can not be granted against a public entity or public employee on the
basis of strict liability, implied warranty or products liability. Third, no punitive or exemplary damages
shall be awarded against a public entity.
Finally, damages for pain and suffering resulting from any injury
shall not be awarded, except in cases where there is permanent bodily injury.
Claims against public entities should be filed with either the
Attorney General or the department or agency involved in the alleged wrongful
act or omission. N.J.S.A. 59:8-7. Notice of the claim must be filed
within ninety (90) days after the accrual of the cause of action. N.J.S.A.
59:8-8. The date of accrual for tort
claims against public entities and private entities is when the tort is
committed. N.J.S.A. 59:8-1. If
the claimant fails to file his/her claim ninety (90) days after the accrual of
the claim, at the discretion of a judge of the Superior Court, he/she may be
permitted to file such notice at any time within one (1) year after the accrual
of his/her claim provided it will not prejudice the public entity. N.J.S.A. 59:8-9. However, extraordinary circumstances for a
failure to file the claim must be proven by the claimant. Six (6) months after the claim has been
filed, the claimant may file suit in
the appropriate court of law. N.J.S.A.
59:8-8. A claimant is forever barred
from recovering against public employee if:
1. He/she
failed to file his/her claim within ninety (90) days of the accrual of his
claim; or
2. Two
(2) years have elapsed since the accrual of the claim; or
3. The
claimant or his authorized representative entered into a settlement agreement
with respect to the claim. N.J.S.A. 59:8-8.
When bringing a claim under
the Tort Claims Act, the claim should include:
a. The
name and post-office address of the claimant;
b. The
post-office address to which the person presenting the claim desires notices to
be sent;
c. The
date, place and other circumstances of the occurrence or transaction which gave
rise to the claim asserted;
d. A
general description of the injury, damage or loss incurred so far as it may be
known at the time of the presentation of the claim;
e. The
name or names of the public entity, employee or employees causing the injury,
damage or loss, if known; and
f. The
amount claimed as of the date of presentation of the claim including the
estimated amount of any prospective injury, damage, or loss, insofar as it may
be known at the time of the presentation of the claim, together with the
computation of the amount claimed.
However, a lack of stated damages will not bar a claim if the damages
are not known at the time the claim is presented. Dambro v. Union Cty. Pk. Comm., 130 N.J. Super 450, 458
(Law Div. 1986).
Pursuant to N.J.S.A.
59:8-6 a public entity by rule or regulation may adopt forms specifying
information to be contained in claims filed against it. These forms must contain all the
requirements of N.J.S.A. 59:8-4. and may also include additional
information or evidence as:
1. Written
reports by claimant’s attending physician or dentists;
2. A list
of claimant’s expert witnesses;
3. Itemized
bills for medical, dental, and hospital expenses incurred, or itemized receipts
of payment for such expenses;
4. Documentary
evidence showing amounts of income lost;
5. A
statement of anticipated expenses for future treatment, if necessary; and
6. A
claimant may be required to submit to a physical or mental examination by a
physician employed by the public entity and the public entity may be allowed to
inspect all appropriate records relating to his claim for liability and damages
including, but not limited to income tax returns, hospital records, medical
records and employment records.
_ The Tort Claims Act Specifically Provides
Immunity for Public Entities and Employees for Certain Civil Actions
Arising From:
1. Roadway
Solicitations:
A public entity shall not be liable for property damages arising out of or in
the course of roadway solicitations for the purpose of soliciting
contributions, conducted by charitable organization. N.J.S.A. 59:2-1.1.
2. Computer
Failures: A public entity can not be held liable for
damages cause either directly or indirectly by failure of computer hardware,
software or any device containing a computer processor. N.J.S.A.
59:2-1.2.
3. Acts
By Public Employees: A public entity is liable for any injury proximately caused by an act
or omission of a public employee within the scope of his/her employment in the
same manner and to the same extent as a private individual under like
circumstances.[2] If the public employee is not liable than
the public entity is not liable either. N.J.S.A. 59:2-1.3(a) (b).
4. Discretionary
Activities: A public entity is not liable for an injury
resulting from;
a. The exercise or judgment or
discretion vested in the entity.
b. Legislative or Judicial
action or inaction.
c. For determining whether to seek
or provide resources necessary for adequate governmental services.
d. Determining whether and how
to utilize and apply its existing resources. N.J.S.A. 59:2-3 (a)-(d).
5. Adoption
or Failure to Adopt or Enforce a Law: N.J.S.A. 59:2-4.
6. Issuance,
Denial, Suspension, or Revocation of Permit, License, etc.: N.J.S.A. 59:2-5.
7. Failure
to Inspect, or Negligent Inspection of, property: This section does not
exonerate the public entity from the liabilities it does have as provided by
the Tort Claims Act. N.J.S.A. 59:2-6.
8. Recreational
Facilities:
A public entity is not required to provide supervision of public recreational
facilities. N.J.S.A. 59:2-7
9. Public
Assistance:
A public entity is not liable for injuries caused by the termination of public
assistance programs. N.J.S.A. 59:2-8
10. Public
Employee Conduct: A public entity
is not liable for the acts or omissions of a public employee constituting a
crime, actual fraud, actual malice, or willful misconduct. N.J.S.A.
59:2-10.
_ Liability and Immunity of Public Employees: A public employee is liable for any injuries caused
by his acts or omissions to the same extent as a private person,
notwithstanding the exception provided by the Act. N.J.S.A.
59:3-1(a). Furthermore, a public
employee is not liable for any injury where a public entity is immune from
liability for that injury. N.J.S.A. 59:3-1(b). The Tort Claims Act exempts public employees from;
1. Discretionary
Activities: N.J.S.A. 59:3-2 (a)-(d).
2. Execution
of Laws: An
employee is not liable for any injury caused so long as he acts in good
faith in the execution or enforcement of the law. This section does not exonerate an employee for false arrest or
false imprisonment. N.J.S.A. 59:3-4
3. Acting
Under Unconstitutional, Inapplicable or
Invalid Laws: If
an employee is acting under a law deemed to be unconstitutional, inapplicable
or invalid he can only be held liable to the degree that he would be if the law
had been constitutional, applicable, or valid. N.J.S.A. 59:3-3.
4. Adoption
or Failure to Adopt any Law: N.J.S.A. 59:3-5
5. Issuance,
Denial, Suspension or Revocation of Permit, License, etc.: N.J.S.A. 59:3-6.
6. Failure
to Inspect, or Negligent Inspection of Property: N.J.S.A. 59:3-7.
7. Institution
or Prosecution of Judicial or Administrative Proceeding: N.J.S.A. 59:3-8.
8. Entry
Upon Property: A public employee is not liable for his
entry upon any property where such entry is expressly or impliedly authorized
by law. However, an employee is not
exonerated from damage he proximately caused subsequent to entering the property
as a result of his own negligent or wrongful act or omission. N.J.S.A.
59:3-9.
9. Misrepresentation: An employee so long as he
was acting within the scope of his employment is not liable for an injury
caused by his misrepresentation.
10. Recreational
Facilities:
N.J.S.A. 59:3-10.
11. Public
Employee Immunity Exception: Nothing in this act exonerates an employee from
liability if it is established that his conduct was outside the scope of his
employment or constituted a crime, actual fraud, actual ,malice or willful
misconduct. N.J.S.A. 59:3-14(a).
Progressive
Environmental Injuries and
Comprehensive General Liability Insurers
Often in cases dealing with injuries
to an individual (i.e. asbestos cases) or to real property (i.e. dumping of
toxic chemicals into the ground) that occur or manifest themselves over long
periods of time more than one insurance carrier is implicated for coverage. Therefore, it is difficult to allocate
which carrier has a duty to defend and what carrier has coverage for these
claims. In Owens Illinois Inc, v. United Ins. Co., et al, 138
N.J. 437, 476 (1994), the New Jersey Supreme Court addressed this problem by
instituting a continuous trigger theory, for these specific instances. The Court held that there should be a
“proration by time and degree of risk assumed; any allocation should be in
proportion to degree of risk transferred or retained during the risk of
exposure ¼, and apportioned on the basis of policy limits, multiplied by years
of coverage with policy limits and exclusions taken into account.” Id. at 476-477. (Please see the decision of the Court for a
detailed explanation of contiguous trigger theory.)
[1] Prior to the Aetna Life and Casualty Co.
v. Imet Mason Contractors decision, mere negligence concerning the
destruction/spoliation of evidence was not enough to bring a tort claim against
the party that destroyed the evidence. See
707 A.2d 180 (N.J. 1998).
[2] Where negligent activities of a public
employee create a dangerous condition of public property, then the provision of
this section does not apply. The public
entity is only liable under the context of the provisions of N.J.S.A.
59:4-2. See Pico v. State,
223 N.J. Super 55, 63 (1989).