By Benjamin A. Hooper, Esq.

A recent appellate case, Glassman v. Friedel, 2020 N.J. Super. Lexis 241 (App. Div. 2020) seeks to resolve whether the allocation scheme created by the Contributory Negligence Act (“CNA”), N.J.S.A. 2A:5-5.1 to 5.8 may be applied to situations involving successive independent tortfeasors, i.e., distinct accidents resulting in separate or enhanced injury to the plaintiff.

First, to appreciate the impact of the Glassman opinion it is necessary to review the development of the statutory scheme governing the apportionment of damages among joint tortfeasors. Joint tortfeasors are two or more persons who are responsible for the same injury. The Joint Tortfeasors Contribution Law (“JTCL”), N.J.S.A. 2A:53A-1 to 5, was enacted in 1952 to ameliorate the injustice of the common law which permitted a plaintiff to place the burden of fault on a single defendant and collect the entirety of the damages from a single tortfeasor, despite the negligence of multiple actors. The JTCL apportioned any damages awarded on a pro rata basis by dividing the total verdict award by the numbers of liable tortfeasors.

The fairness of a pro rata apportionment was rightfully criticized. Two decades later the CNA was enacted, and when applied in combination with the JTCL created a more equitable approach to apportioning damages between joint defendants. The effect of the CNA was to replace the former pro rata liability of the JTCL with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault. Pursuant to the CNA a jury must allocate a percentage of fault to each defendant, including any defendants settling out before trial. The damages attributable to each defendant are then calculated by the court based on their assigned percentage of fault. The CNA process applies equally to settling defendants and non-settling defendants and did away with the old system where the non-settling defendants who proceeded to trial were entitled to a “pro tanto” credit for the settlement proceeds paid by any parties who settled in advance of trial and whose liability was not adjudicated at trial. For example, if a jury awards $1 million to a plaintiff and finds each of the three defendants equally responsible for the injury each defendant would be responsible to pay plaintiff one third of the $1 million award. If, however, one the three defendants settled out in advance of trial for $500,000 the plaintiff would receive the benefit of a good bargain by settling for more than the share of responsibility allotted to the settling party by the jury, and the amount paid by the other two non-settling defendants would remain one third of the award. 

In Glassman, a suit involving successive tortfeasors, the Estate of Jennifer Collum-Glassman sued the restaurant where Jennifer fell and fractured her ankle. As a result of the injury Jennifer came under the care of the medical defendants who performed surgery on the fractured ankle, which allegedly resulted in sensory impairments and ultimately her death at age 40. The restaurant settled before trial for $1.15 million. The medical defendants contended that as successive tortfeasors the CNA’s elimination of pro tanto credits among joint tortfeasors was not applicable and that at trial they were entitled to a $1.15 million credit toward any recovery against them to protect themselves from having to pay more than their fair share of the total damages, and prevent the plaintiff from receiving a financial windfall at trial.

The Appellate Division ruled that the CNA applies to all negligence actions, inclusive of 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 among the parties responsible for each event. Accordingly, a successive tortfeasor, like the medical defendants, may seek an apportionment of the damages between those caused by its negligence and the damages caused by the initial tortfeasor (the restaurant), regardless of whether the initial tortfeasor was adjudged negligent or whether the initial tortfeasor settled out of the case. Accordingly, the medical defendants could not be held liable for Jennifer's fractured ankle, the resulting pain and suffering, and the need for surgery. Furthermore, the CNA’s apportionment system eliminated the use of pro tanto credits based on a plaintiff's settlement with another party, and the adjudicated tortfeasor was entitled only to a reduction in any award of damages by application of the adjudicated percentage responsibility of other tortfeasors.

The Glassman opinion guarantees that the relative fault of the party causing the initial injuries is irrelevant and the damages apportionment scheme makes certain a defendant is not obliged to pay for injuries they did not proximately cause.

For more information, contact Benjamin A. Hooper, Esq. at bah@spsk.com or (973) 631-7847.