The New Jersey Supreme Court recently held that when claims against certain defendants are dismissed by virtue of the New Jersey 10-year statute of repose, fault may still be apportioned to the dismissed defendants under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law to reduce the liability of remaining defendants. In Town of Kearny v. Brandt, (A-60/61-11) (068992), June 20, 2013, the town hired defendant Brandt as the architect, an engineer to conduct a soil investigation, and a contractor to build a public facility. Brandt hired a structural engineer to design the foundations and other supports. The soil engineer completed its work in 1990, the structural engineer completed its work in October 1995. Neither had any further involvement in the project.
On April 9, 1996, the town’s construction official issued the first Temporary Certificate of Occupancy (TCO) for a portion of the building. Structural defects attributed to uneven settlement led the town to file suit on April 7, 2006 against Brandt, the soil engineer and the structural engineer. All defendants moved for summary judgment asserting the New Jersey statute of repose for construction professionals. The trial court granted the motions by the soil engineer and the structural engineer, finding that their work had been completed more than 10 years before suit was filed. However, the court denied Brandt’s motion because the statute did not begin to run on claims against Brandt until “substantial completion” of the project, which the court found was April 9, 1996, the date of the first TCO. Therefore, the statute did not expire until April 9, 2006, two days before the town filed suit. The trial court then struck Brandt’s affirmative defenses, including the right to seek apportionment of fault to other parties. After a jury verdict against Brandt, both parties appealed. The Appellate Division affirmed the trial court’s decision that the statute of repose did not bar the town’s claims against Brandt, but reversed the trial court’s ruling striking Brandt’s affirmative defense on apportionment of liability.
The Supreme Court affirmed the appellate decision, noting that apportionment statutes promote the goal of distributing loss in proportion to the respective fault of the parties causing the loss. Where a claimant fails to meet a statutory requirement for asserting a claim against a defendant, “our comparative fault statutes do not require that the remaining defendants be penalized when the fact-finder allocates fault.” Thus, assessing fault to the absent defendants, who will pay no damages anyway, does not subvert the purpose of the statute of repose which gives construction defendants “the right not to have to defend ancient claims.” The town could have asserted claims against the dismissed defendants earlier, so the fair allocation of responsibility prevents plaintiffs from strategically targeting only some culpable defendants.
This decision clarifies that in New Jersey construction cases where triggers for the statute of repose vary among defendants, comparative negligence statutes may allow those with longer triggers, such as contractors and architects, to reduce their liability by pointing to empty chair defendants with shorter triggers who can no longer be sued, such as parties whose work was completed much earlier.