The New Jersey Supreme Court recently remanded a case for a new trial on the issue of liability and to apportion fault under the Comparative Negligence Act, N.J.S.A. 2A:15-2, and Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-2, including the potential fault of two defendants which had been dismissed from the case on summary judgment under the statute of repose, N.J.S.A. 2A:14-1.1(a).

In Town of Kearny v. Brandt,[1] the South Kearny Improvement Projects Corporation ("SKIP") oversaw the design and construction of a new public safety facility including a police and fire department. Brandt-Kuybida Architects were hired to design and plan the facility. Various professionals entered into contracts for specific tasks, performed them and had no further contact with the project. The first Temporary Certificate of Occupancy ("TCO") was issued on April 9, 1996 for use of the police department. Because of problems with the building, the Town ultimately filed suit on April 7, 2006 against the architect and other professionals alleging breach of contract and asserting negligence. The architects sought apportionment of fault as an affirmative defense and filed a cross-claim against the co-defendants for indemnification and contribution. Motions for summary judgment were filed. The trial court granted summary judgment under the statute of repose in favor of the soil and structural engineer defendants and denied the architect defendants' claims for allocation of fault as a result of their dismissal.

The Court determined that the ten year statute of repose began on different dates as applied to the various defendants. As for the soil engineer and structural engineer, who were hired for specific services, the statute began to run on the date when their services were completed and their involvement in the project ended; the complaint was filed beyond the statute of repose as to these defendants. As applied to the architect defendants, the substantial completion date was deemed to be the date the statute of repose began to run, and the date on which the first TCO was issued was deemed to be the date of substantial completion; the Town’s complaint was filed two days before the statute of repose was due to expire and the claims against the architect defendants were deemed timely.

The Court, having not determined before whether the Comparative Negligence Act and Joint Tortfeasors Contribution Law authorize allocation of fault to a defendant who obtains a dismissal under the statute of repose, held that fault may be apportioned to such defendants. The Court reviewed governing statutes and case law and determined that allocation of fault to dismissed defendants (who will not have to pay damages in any event) does not subvert the statute of repose’s purpose to give construction defendants “the right not to have to defend ancient claims or obligations”, and the goals of the comparative fault statutory scheme are advanced if the factfinder assesses the potential fault of the dismissed defendants on remand. Assessing the fault of all the defendants also removes any incentive for a plaintiff to cherry pick from among the responsible defendants.