WORSTER-SIMS et al v. TROPICANA ENTERTAINMENT, INC. et al

Filing 59

MEMORANDUM OPINION AND ORDER: Defendants' 36 , 40 and 45 motions for leave to amend their answers to include a third-party complaint naming Beau Cantera are DENIED. Signed by Magistrate Judge Joel Schneider on 6/2/2014. (tf, )

[Doc. Nos. 36, 40, 45]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMIE DEE WORSTER-SIMS
AND ASHLEY SIMS, H/W

:
:
:
Plaintiffs,
:
:
v.
:
:
TROPICANA ENTERTAINMENT,
:
INC., et al
:
:
Defendants.
:
______________________________:

Civil No. 13-1981 (RBK/JS)

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motions for Leave to
Amend Answers to Include a Third-Party Complaint Against Beau
Cantera filed by defendants City of Atlantic City [Doc. No. 36],
Tropicana Atlantic City Corp. (“Tropicana”) [Doc. No. 40], and
Officer

Michael

Jones

[Doc.

No.

45].1

The

Court

received

plaintiffs’ opposition [Doc. Nos. 42, 50, 51] and defendants’
replies [Doc. Nos. 48, 53, 54]. The Court recently heard oral
argument.

The

subject

three

motions

involve

the

same

issue.

Namely, whether the defendants in a police excessive force case

For the purpose of the present motions, the following
defendants are hereinafter collectively referred to as
“Tropicana”: (1) Tropicana Entertainment, Inc.; (2) Tropicana
Entertainment Holdings, LLC; (3) Tropicana Entertainment
Intermediate Holdings, LLC; (4) Tropicana Entertainment, LLC;
(5) Tropicana Atlantic City Corp.; and (6) Tropicana AC Sub
Corp.
1

1

may join a non-party who allegedly set into motion a “chain of
events”

that

specifically,

led

the

whether

officer

to

defendants

strike
can

the

join

plaintiff.

Beau

Cantera

More
who

“poked” Officer Jones right before the Officer punched plaintiff
in the face. The answer to these questions is no. Accordingly,
for the reasons to be discussed, defendants’ motions are DENIED.
Background
Plaintiffs filed the instant action on March 28, 2013,
naming the following defendants: (1) Tropicana; (2) Providence
AC, Inc. (“Providence”); (3) Metronome Hospitality Group
(“Metronome”); (4) ABC Corporation(s) 1-10; (5) Atlantic City
Police Officer Michael Jones; (6) City of Atlantic City; (7)
Atlantic City Police Department; and (8) John Doe(s) 1-10. See
generally Complaint [Doc. No. 1]. Plaintiff Jamie Worster-Sims
asserts claims for assault, battery, negligence, negligent
infliction of emotional distress, and intentional infliction of
emotional distress against all defendants. Id. at ¶¶ 46-64.
Worster-Sims also asserts claims for deliberate indifference to
his medical needs and civil rights violations pursuant to 42
U.S.C. § 1983 against defendants Jones, the City of Atlantic
City, the Atlantic City Police Department, and John Does 1-10.
Id. at ¶¶ 65-86. Plaintiff Ashley Sims, Worster-Sims’s wife,
asserts a per quod claim against all defendants. Id. at ¶¶ 8788.
2

Plaintiffs allege that in May of 2011, Worster-Sims and his
cousin, Beau Cantera (“Cantera”), were forcibly removed from the
Providence Atlantic City nightclub by Officer Jones and security
personnel and/or employees of Tropicana. Id. at ¶¶ 29-31.
Plaintiffs allege that while Worster-Sims was being pushed out
of the nightclub, his shoe fell off. Id. at ¶ 33. Plaintiffs
allege that while Worster-Sims “attempted to return to the
interior of the nightclub . . . to retrieve his missing shoe . .
. he was struck in the head with a closed fist by [d]efendant,
[Officer] Michael Jones.” Id. at ¶¶ 34-35. Plaintiffs claim that
Officer Jones acted without justification and was not provoked
by Worster-Sims. Id. at ¶ 38. Plaintiffs also allege that
defendants acted with deliberate indifference to Worster-Sims’s
“obvious need for medical assistance” and that as a result of
the attack he suffered serious and permanent injuries, including
traumatic brain injuries. Id. at ¶¶ 41, 45.
On May 9, 2013, Officer Jones and the City of Atlantic City
filed an answer asserting a counterclaim for attorney’s fees
pursuant to 42 U.S.C. § 1988 and a cross-claim for contribution
against Providence, Metronome, and Tropicana under New Jersey’s
Joint Tortfeasors Contribution Law (“JTCL”) (N.J. Stat. Ann. §§
2A:53A-1 to -5) and/or the Comparative Negligence Act of New
Jersey (N.J. Stat. Ann. §§ 2A:15-5.1 to -5.3). [Doc. No. 7].
Tropicana subsequently filed its answer asserting a cross-claim
3

for contribution and/or indemnification against Providence,
Metronome, Officer Jones, the City of Atlantic City, and the
Atlantic City Police Department. [Doc. No. 10]. Tropicana also
asserted a cross-claim for contractual indemnification against
Providence and Metronome. Id. Providence and Metronome filed an
answer asserting cross-claims for contribution and
indemnification against Officer Jones, the City of Atlantic
City, and the Atlantic City Police Department. [Doc. No. 15].
In the motions presently before the Court, defendants seek
leave to amend their answers to include a third-party complaint
against Cantera for contribution and/or indemnification under
the JTCL and the Comparative Negligence Act of New Jersey. In
sum and substance, defendants argue that Cantera “initiated the
alleged incident when he approached Officer Jones . . . and
proceeded to push his finger into Officer Jones’s chest.”
Atlantic City Brief at 2 [Doc. No. 36]. Defendants claim they
are entitled to contribution and/or indemnification from Cantera
alleging that “[b]ut for the actions/conduct of . . . Cantera,
the physical altercation would not have taken place, and
[Worster-Sims] would not have brought claims against”
defendants. Atlantic City Proposed Third-Party Compl. at ¶ 14
[Doc. No. 36]; Officer Jones Proposed Third-Party Compl. at ¶ 14
[Doc. No. 45]; Tropicana Proposed Third-Party Compl. at ¶ 14
[Doc. No. 40].
4

In opposition, plaintiffs argue that defendants’ proposed
amendments are futile. Plaintiffs argue, inter alia, that
defendants fail to show “any nexus between Cantera’s alleged
breach of duty owed to” defendants and the injuries caused to
Worster-Sims. Opp’n Br. at 4 [Doc. No. 50]. Plaintiffs also
argue that the alleged breach of duty committed by Cantera in
“making unwanted contact with a police officer . . . is
completely independent of the claim that Officer Jones’[s]
assault” violated Worster-Sims’s civil rights. Id. at 5.
Discussion
Defendants' motions involve an intersection of Fed. R. Civ.
P. 15(a), which governs motions to amend the pleadings, and Fed.
R. Civ. P. 14(a), which governs third-party practice. See Cnty.
of Hudson v. Janiszewski, C.A. No. 06-319 (JAP), 2007 WL
2688882, at *3 (D.N.J. Sept. 13, 2007). Pursuant to Fed. R. Civ.
P. 15(a), leave to amend the pleadings “shall be freely given
when justice so requires.” Foman v. Davis, 371 U.S. 178, 182
(1962). A court will exercise its discretion to deny a motion to
amend only where it “‘is apparent from the record that (1) the
moving party has demonstrated undue delay, bad faith or dilatory
motives, (2) the amendment would be futile, or (3) the amendment
would prejudice the other party.’” Janiszewski, 2007 WL 2688882,
at *3 (quoting Hill v. City of Scranton, 411 F.3d 118, 134 (3d
Cir. 2005)). Here, the Court finds there was no undue delay, bad
5

faith or dilatory motives on the part of the defendants, and
plaintiff will not be substantially prejudiced if defendants’
motions are granted. Thus, the Court need only consider the
futility of the proposed amendments.2 An amended complaint is
futile if it fails to state a claim upon which relief could be
granted. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d
Cir. 2011) (citation omitted). To determine if an amendment is
futile a court should use “the same standard of legal
sufficiency as applies under Rule 12(b)(6).” Id. (citation
omitted).
A motion for leave to file a third-party complaint
impleading new parties is governed by Fed. R. Civ. P. 14(a)
Since defendants have not objected to plaintiffs’ standing
to oppose their motions, the Court will not address the issue in
detail. Nevertheless, even in the face of a recent opinion by
the Court’s colleague (Custom Pak Brokerage, LLC v. Dandrea
Produce, Inc., C.A. No. 13-5592 (NLH/AMD), 2014 WL 988829, at *2
(D.N.J. Feb. 27, 2014)), the Court finds it has the authority to
address the futility of defendants’ proposed amendments at this
time. If the amendments are granted it will delay the final
resolution of the case and expand the discovery process. Thus,
it cannot be said that plaintiffs are wholly unaffected by
defendants’ amendments. Id. In addition, the Court has a duty to
construe the Rules of Procedure in a manner to “secure the just,
speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. It is much more efficient to
address the futility of defendants’ amendments now rather than
waiting for the issue to be raised months from now after
defendants’ amendments are filed, Cantera is served, Cantera
retains an attorney, and then Cantera’s inevitable Rule 12(b)(6)
motion to dismiss is filed. At bottom, if an amendment fails as
a matter of law to warrant any relief, leave to amend should be
denied as futile. See In re Burlington Coat Factory Secs.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). This is precisely
what the Court is doing.
2

6

which provides that “[a] defending party may, as third-party
plaintiff, serve a summons and complaint on a nonparty who is or
may be liable to it for all or part of the claim against it.”
Rule 14(a)(1); see Spencer v. Cannon Equip. Co., C.A. 07-2437
(JBS), 2009 WL 1883929, at *2 (D.N.J. June 29, 2009) (“The
purpose of Rule 14(a) is to avoid circuitry of action and
multiplicity of litigation.”) (citation omitted). Importantly, a
third-party claim may only be asserted under Rule 14(a) “when
the third party's liability is in some way dependent on the
outcome of the main claim or when the third party is secondarily
liable to [the] defendant.” Janiszewski, 2007 WL 2688882, at *4
(citation omitted).
In the present motions, defendants seek to amend their
answers to assert a third-party complaint against Cantera for
contribution/indemnification pursuant to the JTCL and the
Comparative Negligence Act. Pursuant to the JTCL:
Where injury or damage is suffered by any person as a
result of the wrongful act, neglect or default of
joint tortfeasors, and the person so suffering injury
or damage recovers a money judgment or judgments for
such injury or damage against one or more of the joint
tortfeasors, either in one action or in separate
actions, and any one of the joint tortfeasors pays
such judgment in whole or in part, he shall be
entitled to recover contribution from the other joint
tortfeasor or joint tortfeasors for the excess so paid
over his pro rata share . . . .

7

N.J. Stat. Ann. § 2A:53A-3. The Comparative Negligence Act
modified the JTCL’s pro-rata apportionment of liability among
joint tortfeasors so that “[j]oint tortfeasors no longer share
liability on a pro-rata basis but instead on the basis of
proportion of fault as determined by the trier of fact.” Dunn v.
Praiss, 656 A.2d 413, 419 (N.J. 1995) (“The effect of the
Comparative Negligence Act on contribution is to measure the
remedy by percentage of responsibility rather than by number of
culpable parties.”). Under the JTCL, “joint tortfeasors” are
defined as “two or more persons jointly or severally liable in
tort for the same injury to person or property, whether or not
judgment has been recovered against all or some of them.” N.J.
Stat. Ann. § 2A:53A-1. “[W]hile there may be contribution for
joint liability even though the wrongs may not be common or
concurrent . . . the statute makes clear that liability must be
made for the same injury.” Finderne Mgmt. Co. v. Barrett, 809
A.2d 857, 864 (N.J. Super. Ct. App. Div. 2002) (internal
quotation marks and citation omitted). “Where the pleadings show
separate torts, severable as to time and breaching different
duties, rather than a joint tort, dismissal of the third-party
action is appropriate.” Id. (citation omitted).
It is well-settled in New Jersey that “‘the true test [for
joint tortfeasor contribution] is joint liability and not joint,
common or concurrent negligence.’” Cherry Hill Manor Assocs. v.
8

Faugno, 861 A.2d 123, 127-28 (N.J. 2004) (emphasis in original)
(quoting Farren v. N.J. Tpk. Auth., 106 A.2d 752, 755 (N.J.
Super. Ct. App. Div. 1954)). A party seeking contribution from
another under the JTCL must satisfy the following standard set
forth by the New Jersey Supreme Court:
“[B]y the very nature of the right and the correlative
obligation, it is incumbent on the contribution
claimant in a case . . . to establish a common
liability for the wrongful act, neglect or default
made [on] the basis of the judgment and the quantum of
the damages ensuing from the joint offense. The
plaintiff must prove that he and the defendant in
contribution are In aequali jure; he cannot prevail
unless the injured person also had a cause of action
for tortious injury against the defendant called on
for contribution.”
Sattelberger v. Telep, 102 A.2d 577, 584 (N.J. 1954) (emphasis
added); Adler’s Quality Bakery, Inc. v. Gaseteria, Inc., 159
A.2d 97, 108 (N.J. 1960) (reiterating that the standard for
contribution requires “that the injured person have a cause of
action against both plaintiff and defendant in contribution”).
Thus, in order to determine whether defendants and Cantera
are “joint” tortfeasors as defined by the JTCL, the Court must
determine whether they are subject to common liability to
plaintiff at the time plaintiff’s cause of action accrued. See
Cherry Hill, 861 A.2d at 128. Stated differently, the Court must
determine whether Worster-Sims has an actionable claim against
Cantera under the theory that Cantera’s alleged negligent and
unlawful actions towards Officer Jones were the proximate cause
9

of Worster-Sims’s injuries. Stated even more succinctly, Cantera
cannot be liable to Worster-Sims unless he owed Worster-Sims a
duty of care.3
“[T]he issue whether a defendant owes a legal duty is
generally a question of law for the court to decide.” Clohesy v.
Food Circus Supermarkets, Inc., 694 A.2d 1017, 1020 (N.J. 1997)
(citing Carvalho v. Toll Bros. & Developers, 675 A.2d 209, 212
(N.J. 1996)). Courts determine the existence and scope of a duty
under “‘the totality of the circumstances’” which must be
“‘reasonable’” under those circumstances. J.S. v. R.T.H., 714
A.2d 924, 929 (N.J. 1998) (citation omitted). In assessing the
circumstances, courts look to the following factors: “(1) the
relationship of the parties; (2) the nature of the attendant
risk; (3) the ability and opportunity to exercise control; (4)
the public interest in the proposed solution; (5) the objective
foreseeability of harm.” Ivins v. Town Tavern, 762 A.2d 232, 235
(N.J. Super. Ct. App. Div. 2000) (citing Alloway v. Bradlees,
Inc., 723 A.2d 960 (N.J. 1999)). The Court should also assess
the defendant’s “‘responsibility for conditions creating the
risk of harm’ and an analysis of whether defendant had

Under New Jersey law, the requisite elements of
a negligence cause of action are: “(1) the existence of a duty;
(2) the breach of that duty; and (3) proximate causation of
damages.” LaBracio Family P’ship v. 1239 Roosevelt Ave., Inc.,
773 A.2d 1209, 1212 (N.J. Super. Ct. App. Div. 2001) (citation
omitted).
3

10

sufficient control, opportunity, and ability to have avoided the
risk of harm.” J.S., 714 A.2d at 928-29 (noting that duty is a
“malleable concept” that must be adjusted to the “‘changing
social relations and exigencies and man’s relation to his
fellows.’”) (citation omitted). “Reasonableness, public policy,
fairness and common sense also must be taken into account when
imposing new legal duties.” Sanchez v. Independent Bus Co., 817
A.2d 318, 322 (N.J. Super. Ct. App. Div. 2003); J.S., 714 A.2d
at 928 (“Ultimately, the determination of the existence of a
duty is a question of fairness and public policy.”) (citation
omitted).
The key consideration for the Court in determining whether
a duty exists is the “foreseeability of the risk, the
seriousness of the risk, and the practicality of preventing it.”
Sanchez, 817 A.2d at 321 (citations omitted). Thus, “‘the
crucial element in determining whether or not to impose a duty
rests on whether the defendant was reasonably able to comprehend
that his [alleged negligent] conduct could injure as it did.’”
Ivins, 762 A.2d at 236 (quoting Taylor by Taylor v. Cutler, 703
A.2d 294, 298 (N.J. Super. Ct. App. Div. 1997)). “[W]hen the
risk of harm is that posed by third persons, a plaintiff may be
required to prove that [the] defendant was in a position to
‘know or have reason to know, from past experience, that there
[was] a likelihood of conduct on the part of [a] third person[]’
11

that was ‘likely to endanger the safety’ of another.” J.S., 714
A.2d at 928 (quoting Clohesy, 694 A.2d at 1023). However, “even
if the risk is foreseeable, a legal duty does not necessarily
arise.” Sanchez, 817 A.2d at 321; Williamson v. Waldman, 696
A.2d 14, 24 (N.J. 1997) (explaining that “‘[a]lthough a
foreseeable risk is the indispensable cornerstone of any
formulation of a duty of care, not all foreseeable risks give
rise to duties.’”) (citation omitted).
The Court finds that under the “totality of the
circumstances,” Cantera did not owe plaintiff a duty. The Court
finds that it is not reasonable for Cantera to foresee that if
he poked Officer Jones, the Officer would react by punching
plaintiff in the face. See Sanchez, 817 A.2d at 322.4 In the
absence of a duty of care owed to Worster-Sims, Cantera cannot
be held liable for injuries Worster-Sims sustained as a result
of Officer Jones’s actions. As noted, in determining whether a
duty exists the Court must examine fairness and public policy.
J.S., 714 A.2d at 928. The Court is concerned with the
potentially limitless liability that could result if a person
were under a duty to foresee that his or her behavior would

The Court notes that defendants have failed to cite a single
case that supports a cause of action for contribution against a
non-party for instigating a physical altercation that allegedly
set in motion a “chain of events” that led a police officer to
strike someone else.
4

12

ultimately lead a police officer to punch a third-party.
Defendants’ “chain of events” theory of liability could ensnare
all sorts of people who have no legitimate connection to
plaintiff’s allegations against Officer Jones, such as the
friend who invited Cantera to Atlantic City even though he
suspected that Cantera may have been a “hot head,” or the
colleague who dared Cantera to “poke” the officer.5 Under
defendants’ “chain of events” or “but for” theory, these
hypothetical individuals could be joined as defendants. The
Court does not agree that these individuals are “joint
tortfeasors” or that they should be joined.
The Court in Ivins noted that the critical element in
deciding whether to impose a duty was whether the defendant
could reasonably comprehend that his conduct would injure as it
did. 762 A.2d at 236. This did not occur here. The Court finds
that it was not objectively foreseeable that Cantera’s poking
would cause a uniformed police officer to punch Worster-Sims.
Further, the public interest is not advanced by permitting
Cantera’s joinder. As noted, defendants’ “chain of events”
theory of liability could ensnare a limitless list of
potentially responsible parties. Police officers must be held
accountable for their conduct and should not be able to facilely

5

These examples are made up.
13

shift blame for the consequences of their deliberate actions. To
be sure, the Court is not weighing in on Officer Jones’s
liability to Worster-Sims. A fact-finder may or may not find
that Officer Jones is liable. The Court is instead ruling that
Cantera did not owe a duty to Worster-Sims and that Cantera is
not jointly liable for the fact that Officer Jones punched
Worster-Sims and plaintiff’s resulting injuries.
Defendants’ liability analysis is flawed. For example, they
argue that Cantera should be joined because he “instigated the
entire chain of events” and “but for” Cantera, they would not be
defending this lawsuit. Atlantic City Br. at 2-3. Atlantic City
emphatically argues “[b]ut for the actions/conduct of Beau
Cantera, [p]laintiff would not have brought suit against the
City of Atlantic City.” Reply Br. at 5 [Doc. No. 48]. Similarly,
at oral argument defendants argued that Cantera should be joined
because “he provoked a situation in which the plaintiff was
injured.” May 5, 2014, Transcript of Oral Argument (“Tr.”) at
14:23-25. [Doc. No. 58]. The problem with defendants’ analysis
is that it ignores the concept of duty. Under the circumstances
of this case, Cantera did not owe a duty to plaintiff to refrain
from “poking” Officer Jones because it was not foreseeable that

14

the poking would cause Officer Jones to deliberately punch
plaintiff in the face. Thus, Cantera may not be joined.6
To be clear, defendants do not allege that Cantera’s
liability stems from his physical contact with Worster-Sims.
Rather, defendants claim that by “poking” Officer Jones, Cantera
started a chain of events that caused Worster-Sims to become
“involved in the physical altercation.” Atlantic City ThirdParty Compl. at ¶ 11. If, for example, defendants argued that
Cantera hit Worster-Sims or that Cantera pushed or propelled
Officer Jones into Worster-Sims, the Court’s analysis would not
be as straightforward. However, such allegations are not before
the Court.
At oral argument, defense counsel asserted that it was
Cantera’s unreasonable decision to poke Officer Jones that
encouraged Worster-Sims to confront Jones as well. Specifically,
defense counsel contended that Worster-Sims was “so drunk, that
he decided . . . based on what he saw [Cantera] do, it was okay
for him to go up to a uniformed police officer, take his hand,
mush him in the face and push him backwards. And then [WorsterSims] was struck.” Tr. 21:4-8. Despite defense counsel’s
assertions, the proposed amended pleadings fail to include any

As acknowledged at oral argument, this is not a case where it
is alleged that Officer Jones thought plaintiff poked him.
Instead, it is alleged that after Cantera poked him Officer
Jones intentionally struck plaintiff. Tr. 27:10-16.
6

15

allegations that Worster-Sims offensively touched or confronted
Officer Jones in response to Cantera’s behavior. Even assuming
arguendo that defendants had pled that Worster-Sims joined in
the alleged assault against Officer Jones, such a claim would
weigh in favor of limiting the scope of Cantera’s duty of care.7
The foreseeability and nature of the risk of harm created by
“poking” Jones in the chest becomes even more attenuated once
the alleged intervening and intentional acts of Worster-Sims are
inserted into the analysis. However, the Court need not consider
the aforementioned scenario, as the Court’s determination on
whether to grant leave to amend rests on allegations set forth
in the proposed pleadings. See Snyder v. Baxter Healthcare,
Inc., 393 F. App’x 905, 907 n.4 (3d Cir. 2010).
The decisions in Sanchez and Ivins are instructive. In
Sanchez, the third-party defendant boarded the defendant’s bus
carrying a “boom box” radio with the volume turned up in
violation of the bus’s policy. 817 A.2d at 320. When the
defendant bus driver asked the third-party defendant to turn the
volume down, he initially complied. Id. However, when the thirdparty defendant turned the radio’s volume up a few minutes
later, the driver did not voice an objection despite hearing the
At oral argument, Atlantic City’s counsel stated that
“[Worster-Sims] was punched in the face, because he physically
assaulted the police officer by taking his hand, grabbing him by
the face and pushing him backwards. [Worster-Sims] physically
assaulted the police officer.” Tr. 23:23 to 24:1.
7

16

radio. One of the plaintiffs requested that the third-party
defendant turn the volume down, but was ignored. Id. at 321.
While the third-party defendant waited for his stop, he stepped
on the foot of another passenger, which led to a heated verbal
exchange and subsequent physical altercation between the thirdparty defendant and the passenger. Id. During the fight, the
passenger punched the third-party defendant, who responded by
firing a previously concealed handgun. One of the plaintiffs,
who was merely a bystander, was hit by a bullet and rendered a
paraplegic. Id. The other plaintiff was injured as passengers
fled the bus. Id.8 The bystander plaintiffs subsequently brought
a negligence action against the defendant bus company and the
bus driver. The trial court dismissed the plaintiffs’ complaints
on the defendants’ motion for summary judgment, finding that the
defendants owed no duty to protect the plaintiffs against an
armed passenger’s actions. Id. at 320.
On the plaintiffs’ appeal, the court considered the issue
of whether the wrongful act of the third-party defendant shooter
could have been reasonably anticipated. Id. at 322 (citations
omitted). In affirming the dismissal, the appellate court found
that in light of the third-party defendant’s compliance with the
In Sanchez, the passenger who punched the third-party defendant
after his foot was stepped on was named as a third-party
defendant by the defendant bus company and bus driver. Id. at
318. The plaintiff who had been shot was also named as a thirdparty defendant by the defendant bus company. Id.
8

17

bus driver’s request to lower his radio, the absence of
threatening behavior prior to the altercation, and the short
time period in which the events transpired, “there [was] no
basis to conclude that the bus driver should have anticipated
the events that actually occurred.” Id. The appellate court
acknowledged that the bus company owed a “high degree of care
for the safety of its passengers so as to avoid dangers that
[were] known or reasonably anticipated.” Id. (citation omitted).
However, the court declined to impose upon the bus company the
duty of guaranteeing passenger safety because the defendants:
(1) “had nothing to do with creating the danger which brought
about the injuries to either plaintiff”; and (2) did not have
“any reason to know or foresee that [the third-party defendant]
would harm any of the passengers.” Id. at 323-24. The Court
explained that even if there was a duty to protect against a
passenger with a concealed weapon, “it [could not] be reasonably
said that any acts or omissions of the defendants were a
proximate cause of the shooting.” Id. at 324.
In Ivins, the plaintiff was injured in the defendant
tavern’s parking lot when he interceded in a fight between his
friend and another patron, the aggressor in the altercation. 762
A.2d at 234. The plaintiff asserted a negligence claim against
the defendant tavern on the basis that its duty of care to its
customers obligated it to provide a security guard or bouncer in
18

the parking lot. Id. The plaintiff contended that the defendant
should have reasonably foreseen the eventuality of a fight in
its parking lot because the defendant’s employees were aware of
the aggressor’s violent nature, there was a “general knowledge”
of the friction between the plaintiff’s friend and the
aggressor, and there had been prior incidents of fights/assaults
in the defendant’s lot. Id. at 233-36.
At trial, the court granted the defendant’s motion for
involuntary dismissal, which the plaintiff subsequently
appealed. Id. at 233. The appellate court affirmed, agreeing
with the trial judge’s conclusion that “the proofs were . . .
insufficient to present a jury issue on [the] plaintiff’s claim
of negligence by the tavern.” Id. at 235. After considering the
type of evidence needed to impose a duty on the defendant to
foresee and prevent a fight, the court found that there was no
evidence that the tavern was located in an area “particularly
susceptible” to violence. Id. at 237. Furthermore, the court
found that:
“[A]lthough the aggressor was known by the tavern and
its employees to have a potentially violent nature and
the employees may have been aware of the friction
between the aggressor and [the] plaintiff’s friend,
there was no evidence of any events occurring inside
the tavern that night that should have put the tavern
employees on notice that a possible fight was in the
works, triggering a duty on their part to take
preventive measures.”
Id.
19

Similar to the plaintiffs in Sanchez and Ivins, defendants
in the present action seek to impose a duty on Cantera to
foresee unforeseeable consequences. It simply was not
foreseeable that if Cantera “poked” a police officer, the
officer would then punch plaintiff in the face. Under the
circumstances present herein, the Court will not impose such a
duty on Cantera. The Court finds that Cantera did not owe a duty
to Worster-Sims to reasonably anticipate the actions of Officer
Jones.
Based on the Court’s finding, defendants are not entitled
to contribution under the JTCL because they cannot establish
that Cantera and Officer Jones are “joint tortfeasors.” See Hut
v. Antonio, 229 A.2d 823, 827 (N.J. Super. Ct. Law Div. 1967)
(defendant property owner could not obtain contribution from
third-party defendant property surveyor who failed to disclose a
wall that collapsed on the plaintiff because the surveyor
“breached no duty owing to [the] plaintiff and his negligence,
if any, did not contribute to the happening of [the]
accident.”). The Court finds that the alleged wrongful act
committed by Cantera against Officer Jones was separate and
independent from any alleged wrong Jones committed against
Worster-Sims. Given that defendants are not entitled to
contribution from Cantera under the JTCL, defendants’
contribution claims are denied as futile. See Finderne, 809 A.2d
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at 864 (defendants accused of misrepresenting tax advantages of
welfare benefit plan were not entitled to contribution from the
plaintiff’s accountant under the JTCL because the accountant did
not owe a duty to the defendants and the wrongs alleged against
the defendants and the accountant did not relate to the same
injury).
In light of the Court’s holding that Cantera did not owe a
duty to Worster-Sims, the Court finds that defendants’ claims
for indemnification against Cantera are also futile. Under New
Jersey law, “‘the right of indemnity is granted only to those
whose liability is secondary and not primary, i.e., whose
negligence is not morally culpable but is merely constructive,
technical, imputed or vicarious.’” Hut, 229 A.2d at 827 (quoting
Pub. Serv. Elec. & Gas Co. v. Waldroup, 119 A.2d 172, 179 (N.J.
Super. Ct. App. Div. 1955)). “The loss, as a matter of law,
should fall on the one whose negligence actually occasioned it.”
Id.; see Ramos v. Browning Ferris Indus. of S. Jersey, 510 A.2d
1152, 1158-59 (N.J. 1986) (noting the general rule that “a party
who is at fault may not obtain indemnification for its own
acts.”) (citation omitted).9 The New Jersey Supreme Court

The Court acknowledges the exception to this general rule that
“one who in good faith and at the direction of another commits a
tort is allowed indemnity against the person who caused him to
act.” Ramos, 510 A.2d at 1159. However, this exception is
inapplicable to the present case, as Officer Jones does not
allege that he acted under the direction of Cantera.
9

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explained that “[i]t would be inequitable to permit an active
wrongdoer in the absence of a contractual understanding between
the parties to obtain indemnity from another wrongdoer and thus
escape any responsibility.” Cartel Capital Corp. v. Fireco of
New Jersey, 410 A.2d 674, 683 (N.J. 1980).10
As already noted, Cantera is not a joint tortfeasor. In
addition, no contractual relationship exists between defendants
and Cantera. As a result, since Cantera cannot be held liable to
plaintiff, defendants’ alleged liability is primary, rather than
secondary. See Hut, 229 A.2d at 827 (“[A] person who is, or may
be, [p]rimarily liable to the injured party cannot seek
indemnification under the theory of implied indemnity.”).
Therefore, defendants are not entitled to indemnification from
Cantera.
Conclusion
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED this 2nd day of June, 2014, that

In light of the Court’s holding that defendants have no
actionable claim against Cantera, fault cannot be apportioned to
Cantera under the Comparative Negligence Act. See LaBracio, 773
A.2d at 1214 (“To apportion liability under the Act, the factfinder should compare the fault of all parties whose negligence
was a proximate cause of the plaintiff’s injuries.”) (citation
omitted).
10

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defendants’ motions for leave to amend their answers to include
a third-party complaint naming Beau Cantera are DENIED.

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

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