Legal Updates for New Jersey Public Entity & Civil Rights
Failure to Serve Tort Claims Notice by Third Party Plaintiff On a Third Party Defendant Is Fatal to Third Party Complaint
Presented by the Public Entity & Civil Rights Litigation Practice Group
July 13, 2022
In McConnachie v. Bridgewater-Raritan Regional School District (A-1380-20), the Appellate Division affirmed a decision by the trial court to dismiss a third party complaint for failure to timely serve a notice of tort claim.
On July 31, 2018, Christine McConnachie entered the sidewalk at an intersection in the Borough of Somerville. At the same time, Robert Moser was driving a van that struck and killed Ms. McConnachie in the crosswalk. Moser, a maintenance worker for the school district, was returning from a hardware store where he picked up parts as part of his employment. Prior to the accident, the New Jersey Department of Transportation had expressed serious safety concerns regarding the intersection.
Two days after the accident, a claims adjuster for the New Jersey Schools Insurance Group, the school district’s insurer, sent a letter to the borough informing it of the accident. The letter also requested that the notice be sent to the borough’s insurance company.
The plaintiff served a Tort Claims Act notice of claim on the school district but did not serve a notice of claim on the borough. Thereafter, the school district also did not serve a notice of claim upon the borough. Moreover, the school district never sought leave to serve a late notice of claim within one year from the date of the accident.
The plaintiffs filed a wrongful death and survival action against the school district and Moser, who then filed their answer and, later, a third party complaint for contribution against the borough.
The borough filed a motion for summary judgment. The trial judge granted the motion and held that since a notice of tort claim was not timely served, summary judgment should be granted. The court found that the letter sent by the borough’s insurer did not substantially comply with N.J.S.A. 59:8-8. The court further held that the school district failed to establish that the intersection was a dangerous condition pursuant to N.J.S.A. 59:4-2 and was immune under N.J.S.A. 59:4-5 for failure to provide ordinary traffic markings or devices. Additionally, the trial court held that since the school district failed to serve a timely notice of claim, its request to still have the jury consider the borough’s liability and allocate fault was denied.
The Appellate Division affirmed the decision and held that the letter from the school district’s insurer did not comply with the factors set forth in Galik v. Clara Maass Medical Center to establish substantial compliance.
Please do not hesitate to contact me with any questions concerning this case or other issues under the Tort Claims Act.
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