Comparative Negligence

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.


Entire Controversy Doctrine

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 (of Evidence)

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

 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).


Statute of Limitations


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).




Claims Against Public Entities


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).