Richard Mirra, Of Counsel to the firm, prevailed in an interlocutory appeal to the Appellate Division in a premises liability case.  Judge Alvarez and Judge Ostrer reversed Judge Brenner’s Order allowing Plaintiff to amend her complaint to join our client, a masonry contractor, as a direct defendant after the statute of limitations had run.  

Plaintiff, a condominium resident, fell and sustained injuries on the steps the condominium’s masonry contractor had repaired three days prior.  The handrails were temporarily unbolted from the steps while the cement cured in the repair process, and the Plaintiff alleged the fall occurred when the rails she grabbed for support gave way.  Whether caution tape was placed on the unanchored railings, and who had responsibility for doing so emerged as significant issues in the case.  The Plaintiff amended her Complaint to have the masonry contractor joined as a direct Defendant based upon the fictitious party rule.

Judge Brenner accepted Plaintiff’s attorney’s contention that he had no reasonable basis to assert a claim against the masonry contractor until shortly before filing the motion to amend and allowed the amendment on the principal ground that there was no prejudice to the contractor as he already was in the case as a Third Party Defendant. The condomunium had also moved for and obtained summary judgment dismissing the Plaintiff’s claim against them based upon the limited statutory immunity for ordinary negligence claims. 

Mirra moved for leave to file an interlocutory appeal on the grounds that the trial court had misconstrued the fictitious party rule and/or misread Claypotch v. Heller, Inc., 360 N.J.Super. 472 (App. Div. 2003) and that in fact there was prejudice to Third Party Defendant, because, among other things, the motion to join him as a direct defendant was made after the statute of limitations had expired and because the condominium association was dismissed from the case based on the statutory immunity for ordinary negligence. This would have left the masonry contractor exposed to a judgment for ordinary negligence as a direct defendant once the condominium was dismissed on summary judgment.  Mirra also argued, in the alternative, that if the amended complaint was allowed to stand, then his client should have the benefit of the statutory immunity for reasons similar to the derivative immunity that applies to government contractors in certain Title 59 cases.

The Appellate Division accepted Mirra’s argument that the masonry contractor’s liability should be circumscribed by the “derivative” immunity and also agreed with both points of argument regarding the fictitious party rule. The Court found that Plaintiff’s counsel had not exercised sufficient due diligence to invoke the fictitious party rule and that there was prejudice to Mirra’s client.  The Court made it clear that the fictitious party rule requires a two part test. Plaintiff must establish due diligence regarding the failure to join the fictitiously identified party prior to expiration of the limitations period and that there is no prejudice to the party sought to be joined by amendment. The Court also took pains to point out that expiration of the statute of limitations, inability to participate in prior discovery, the effect of fading memories due to passage of time and so on are forms of prejudice that can be asserted by a party resisting late joinder pursuant to the fictitious party rule.