In its opinion dated December 3, 2020, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in a case where the decedent had settled with the original tortfeasor for injuries she sustained as a result of a fall at a restaurant and later was injured (and died) as a result of medical negligence arising out of treatment for those injuries, “we conclude that application of a pro tanto settlement credit in a negligence case, whether it involves joint or successive tortfeasors, is a vestige of the common law and has no support in our current jurisprudence. We therefore reverse and vacate the orders under review.”
Joint vs. Successive Tort Liability
Joint tortfeasors are two or more persons who are jointly and severally liable in tort for the same injury and not the cumulative damages the tort victim sustained as a result of multiple disparate injuries caused by multiple tortfeasors. The Joint Tortfeasors Contribution Law (“JTCL”), N.J.S.A. 2A:53A-1 to -5, once enacted, apportioned any damage award on a pro rata basis among adjudicated tortfeasors.
After enactment of the Comparative Negligence Act (“CNA”), N.J.S.A. 2A:15–5.1 to -5.8, the effect was to replace the former pro rata liability of joint tortfeasors under the JTCL with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault. Because of the CNA, a plaintiff may recover the full quantum of damages from a single tortfeasor only if that party is “determined by the trier of fact to be [sixty percent] or more responsible for the total damages.” N.J.S.A. 2A:15-5.3(a). Those tortfeasors determined “by the trier of fact to be
less than [sixty percent] responsible for the total damages[,]” are liable “[o]nly [for] that percentage of the damages directly attributable to that [tortfeasor’s] negligence or fault[.]” N.J.S.A. 2A:15-5.3(c).
Pursuant to the JTCL a settling tortfeasor had no further liability to any party beyond that provided in the terms of settlement, and a non-settling defendant’s right to a credit reflecting the settler’s fair share of the amount of the verdict — regardless of the actual settlement — represented the judicial implementation of the statutory right to contribution. The pro rata contribution scheme of the JTCL was eclipsed by the percentage-liability formula established by sections 5.2 and 5.3 of the CNA.
Pursuant to the CNA, the finder of fact must make an allocation of causative fault between settling and non-settling defendants so that the court can calculate the amount of the credit due to the non-settler even though the non-settler cannot pursue a claim for contribution against the settler. A necessary corollary of this scheme is to deny to comparative-negligence joint tortfeasors a reduction of their liability based on a plaintiff’s pretrial settlement with a defendant who is never found to be liable at all. Thus, under the comparative-negligence scheme, a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated among all other defendants. Unless the settling defendant’s percentage of liability is adjudicated at trial, there is simply no right in the adjudicated tortfeasors to a reduction of their own separately-allocated responsibility for the verdict.
Although the initial tortfeasor may not seek contribution, a purely statutory right, from the successive tortfeasor because they are not joint tortfeasors, it may seek indemnification. In the case of successive tortfeasors, neither party may have any interest in the plaintiff’s claim against the other on the issue of liability. However, each clearly has an interest in paying no more than its fair share of the plaintiff’s total damages. “We have recognized the successive tortfeasor’s right to limit its damages, even if responsibility for the initial causative event is not before the factfinder.”
Unlike the joint tortfeasor situation where multiple defendants may be liable for the “same injury,” N.J.S.A. 2A:53A-1, a successive tortfeasor is liable generally only for damages proximately caused by the independent tortious conduct succeeding the original event. In other words, the issue may not be one of comparative fault as between the initial and successive tortfeasor; instead, it is the apportionment of damages between those injuries proximately caused by the initial tort and those proximately caused by the successive tort that matters.
The New Jersey Appellate Court stated in the present case: “We find no support for the Medical Defendants’ general proposition that the CNA has no relevance to actions brought against successive tortfeasors. By its express terms, the CNA applies to “all negligence actions and strict liability actions in which the question of liability is in dispute[.]” N.J.S.A. 2A:15-5.2(a). Moreover, the CNA requires the factfinder to determine “the full value of the injured party’s damages[,]” “regardless of any consideration of negligence or fault[.]” N.J.S.A. 2A:15-5.2(a)(1). The CNA only uses the term joint tortfeasors in discussing contribution, a right statutorily granted to joint tortfeasors by the JTCL, and, in the context of social host liability … We have long recognized that a party’s status as a tortfeasor cannot be presumed simply because the plaintiff settled his or her claim against that party.”
“Under principles of comparative responsibility embodied by the CNA, a successive tortfeasor may, upon adequate proof, seek the factfinder’s apportionment of damages between those proximately caused by its negligence and those caused by the initial tortfeasor, regardless of whether the initial tortfeasor was adjudged to have been negligent or whether the initial tortfeasor remains in the case … The successive tortfeasor may seek apportionment of damages even if the initial tortfeasor is not adjudicated culpably negligent … Had plaintiff not reached a settlement with Juanito’s, and the case was tried against all defendants, the jury would have to decide the comparative fault of Jennifer and Juanito’s as to the initial fall, and the quantum of damages associated with the fractured ankle.”
“Generally speaking, we think it is safe to assume that the focus of the Medical Defendants’ defense in this case, and in most other litigation like this, will be on the issue of their own culpability, and, secondarily, the apportionment of damages between Jennifer’s fall and the care they administered to her. The jury would first determine whether some or all of the Medical Defendants were negligent after Jennifer came under their care. If more than one Medical Defendant was found negligent and a proximate cause of Jennifer’s subsequent injuries, the jury would first assess the comparative fault of those adjudicated tortfeasors and then assess the total amount of damages, apportioned between those caused by the fractured ankle and those caused by the medical negligence. In this regard, any Medical Defendants found liable would not have to prove Juanito’s negligence in order to limit their potential exposure for proximately caused damages. Indeed, in a scenario such as this case, where the only defendants remaining are those alleged to have caused the subsequent injuries, the jury must apportion the total amount of damages between those caused by the initial injuries, and those caused by the Medical Defendants’ negligence, so that the remaining defendants are not obliged to pay for injuries they did not proximately cause. The relative fault of the party causing the initial injuries is irrelevant … After the jury apportions the damages caused by each causative event, it determines the relative fault for each occurrence, and the court molds the verdict accordingly.”
“To summarize, the CNA applies to situations involving successive tortfeasors, but not in the same way it applies to joint tortfeasors. In the context of successive torts, the CNA helps to achieve the “legislative objective” of comparative responsibility “by requiring juries to apportion damages between . . . successive [events] and to apportion fault amount the parties responsible for each [event].” Campione, 150 N.J. at 184. At trial, a nonsettling successive tortfeasor may not only dispute its negligence and the quantum of damages it proximately caused, but it may also adduce proof as to the negligence of the settling tortfeasor, and whether the initial tortfeasor’s negligence was a proximate cause of the second “causative event.” The burden of proof is on the non-settling defendant.”
“The only real issue is whether plaintiff or the Medical Defendants should benefit from the jury’s assessment of the damages related solely to the fractured ankle when compared to the $1.15 million settlement plaintiff reached with Juanito’s. Without a possible pro tanto credit, if the settlement is less than the jury’s assessment, plaintiff reaps the result of what may have been a bad bargain, but the Medical Defendants are only responsible for the damages attributed to their negligence. If the settlement is more than the jury’s assessment, plaintiff receives the benefit, but the Medical Defendants are still responsible only for what the jury has determined is the full measure of the damages attributed to their negligence. Such a result is fair and wholly consonant with the developments in our law since Ciluffo was decided, and we specifically disapprove of its holding regarding the award of a potential pro tanto credit in circumstances like these.”
Source Glassman v. Friedel, Docket No. A-4042-19T3.
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