NJ Supreme Court Justice Anne Patterson. Carmen Natale

In a suit over a child’s fatal accident, an amusement park operator may not seek indemnification from the charter school that organized the outing, but it can seek a verdict allocating fault to the school, the state Supreme Court has ruled.

The amusement park operator is barred from seeking contribution or indemnification from the school because it failed to give notice of claim under the Tort Claims Act, the court said in Jones v. Morey’s Pier. But the amusement park can present evidence at trial that negligence by the school was a proximate cause of the child’s death, and the jury may allocate a percentage of fault to the school, the court said. If the jury does allocate a portion of fault to the school, the amusement park can ask the trial judge to mold the verdict to reduce its liability accordingly, the court said.

The question of whether a defendant could bring contribution and common-law indemnification claims against a public entity when it fails to serve notice of claim under the Tort Claims Act was an issue of first impression, the court said.

The case stems from the death of Abiah Jones, 11, on June 3, 2011, while riding a Ferris wheel at Morey’s Pier in Wildwood. She fell from the 160-foot Ferris wheel while riding alone in one of its carriages, contrary to the policy at Morey’s Pier. Her parents initially filed suit in Philadelphia’s Court of Common Pleas, based on the residency of the child’s father, but the complaint was dismissed by an appellate court and re-filed in New Jersey. The suit named Morey’s Pier as a defendant but did not name the charter school as a defendant.

The court reversed a ruling by Superior Court Judge Donna Taylor, who denied the motion for summary judgment by PleasanTech Academy, a charter school in Pleasantville that closed in 2013. She concluded that the Tort Claims Act limited a plaintiff’s right to bring a claim against a public entity but that the act did not require notice of claim as a prerequisite to a defendant’s contribution or common-law indemnification claims against a joint tortfeasor that is a public entity.

PleasanTech Academy sought leave to appeal in the Appellate Division but the motion was denied. The Supreme Court then granted PleasanTech’s leave to appeal. Before the Supreme Court, Morey’s argued that its failure to serve a notice of claim against the charter school should not prevent it from asserting contribution or indemnification claims against it. Morey’s also argued that, if its third-party claims were not allowed, it should be permitted to seek an apportionment of fault from the jury.

Justice Anne Patterson, writing for the court, said that three published appellate and trial court rulings found that failure to comply with the notice provisions of the Tort Claims Act was not held to bar defendants’ third-party claims against the government entity, and two other decisions had decided the opposite way. Patterson agreed with the analysis of the latter group, which focused on the plain language of the Tort Claims Act.

Allowing Morey’s to seek an allocation of fault to the school is an equitable result based on the circumstances, particularly the plaintiffs’ decision to file suit in Pennsylvania, Patterson said. When the Pennsylvania suit was dismissed and the new case filed in New Jersey, the opportunity to serve notice on the school had long expired, she said.

“The equities thus weigh against plaintiffs, whose Pennsylvania strategy thus deprived the Morey defendants of the opportunity to preserve their right to file a cross-claim against [the charter school],” Patterson said.

Jason Attwood of Pashman Stein Walder Hayden in Hackensack, representing PleasanTech Academy, declined to comment. John Osorio of Marshall Dennehey Warner Coleman & Goggin in Mount Laurel, representing Morey’s Pier, did not return a call. Heidi Villari of The Beasley Firm in Philadelphia, who represents the dead child’s family, said in an email that her case was directed only against Morey’s Piers “due to significant departures from accepted safety measures. It is our impression that Morey’s had been attempting to shift the blame for this tragic event onto the school and any attempt to do so at trial will actually backfire on Morey’s.”