Todd B. Glassman v. Steven P. Friedel, M.D. (085273) (Monmouth County and Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Todd B. Glassman v. Steven P. Friedel (A-48/49/50/51-20) (085273)
Argued October 1, 2021 -- Decided December 23, 2021
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court addresses the allocation of damages in cases in which a
plaintiff asserts claims against successive tortfeasors and settles with the initial
tortfeasors before trial.
In March 2017, Jennifer Collum-Glassman, a forty-five-year-old teacher, tripped
and fell as she was leaving a restaurant owned and operated by Juanito’s, Inc., and KLE
Properties, LLC (collectively, the Property Defendants). Collum-Glassman fractured her
left ankle and was hospitalized at Hackensack Meridian Health d/b/a Riverview Medical
Center and treated by seven medical professionals (collectively, the Medical Defendants).
Three weeks after a surgery on her ankle, Collum-Glassman suffered a pulmonary
embolism and died. According to plaintiff’s answers to interrogatories, an autopsy
revealed that the cause of death was “[s]addle pulmonary embolism due to
immobilization following fractures of left ankle due to fall.”
In June 2018, plaintiff Todd B. Glassman, as Executor of the Estate of Collum-
Glassman, his wife, filed a wrongful death and survival action against the Property
Defendants. In discovery, plaintiff’s counsel served the expert report of a forensic
economist on counsel for the Property Defendants. The expert opined that as a result of
Collum-Glassman’s death, plaintiff suffered economic loss in the amount of over $2.3
million, consisting of lost earnings, health coverage, pension benefits, and services. In an
amended complaint, plaintiff added claims against the Medical Defendants.
In September 2019, counsel for plaintiff and counsel for the Property Defendants
filed a stipulation of dismissal, stating that plaintiff had settled his claims against those
defendants. The amount of the settlement was $1.15 million.
The Medical Defendants then moved before the trial court for an order “to
establish the principles espoused in [Ciluffo v. Middlesex General Hospital, 146 N.J.
Super. 476 (App. Div. 1977)], regarding successor liability.”
1
The court granted each defendant’s application, stating that “the principles set
forth in [Ciluffo] shall apply to this case.” It ordered that the Medical Defendants would
receive a pro tanto credit based on the amount plaintiff received in his settlement.
The Appellate Division reversed, rejecting the application of the Ciluffo pro tanto
credit to successive-tortfeasor cases in light of the Legislature’s enactment of the
Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. Glassman v. Friedel, 465 N.J.
Super. 436, 445-46 (App. Div. 2020). The Appellate Division ordered that the trial court
charge the jury to apportion the damages between the two successive causative events on
which plaintiff premised his claims, Collum-Glassman’s initial accident and the alleged
medical malpractice. See id. at 446-69.
The Court granted the Medical Defendants leave to appeal. 245 N.J. 469 (2021).
HELD: The Court agrees with the Appellate Division that the Ciluffo pro tanto credit
does not further the legislative intent expressed in the Comparative Negligence Act and
does not reflect developments in case law over the past four decades. In its stead, the
Court sets forth a procedure to apportion any damages assessed in the trial of this case
and future successive-tortfeasor cases in which the plaintiff settles with the initial
tortfeasors prior to trial.
1. At common law, the plaintiff could place the entire burden of fault on one defendant,
who was then helpless to shift any of the responsibility to any other joint defendants. In
1952, responding to that injustice, the Legislature enacted the first of two statutes that
now comprise New Jersey’s allocation-of-fault statutory scheme, the Joint Tortfeasors
Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5. Under that statute, a defendant who
paid the injured person more than that defendant’s pro rata share of a judgment -- the
total judgment divided by the total number of defendants -- was entitled to recover the
excess from the remaining tortfeasors. And under case law applying the JTCL, a
settlement with a joint tortfeasor was held to reduce the plaintiff’s total claim against the
non-settling codefendant(s) by the pro rata share, regardless of the actual amount of the
settlement, and to bar contribution from the settling tortfeasor. (pp. 13-16)
2. When it enacted the Comparative Negligence Act (CNA) in 1972, the Legislature
fundamentally altered the method by which courts determine the impact of the plaintiff’s
settlement with one joint tortfeasor on the liability of the remaining non-settling
tortfeasors. The Act’s key reform ameliorated the harsh consequences of the doctrine of
contributory negligence, which had barred any recovery under the common law. The
Legislature also prescribed a procedure by which the factfinder assesses each joint
tortfeasor’s percentage of fault and the court molds the judgment in accordance with that
assessment. See N.J.S.A. 2A:15-5.2. The Legislature incorporated the right of
contribution prescribed by the JTCL into the CNA’s fault-based allocation scheme. See
N.J.S.A. 2A:15-5.3(e). When the CNA and JTCL are applied in tandem, the percentage
2
of a total judgment assessed against a joint tortfeasor is determined not by pro rata
allocation of damages, but by the factfinder’s determination of the fault of each tortfeasor
and, in cases involving contributory negligence, the fault of the plaintiff. (pp. 16-18)
3. In applying those laws, the Court has held that a non-settling defendant who provides
“fair and timely notice” of intent to seek an allocation of fault to a settling defendant at
trial, and then proves the settling defendant’s fault, is entitled to such an allocation, even
without a crossclaim against the settling defendant. Young v. Latta, 123 N.J. 584, 596-97
(1991). Thus, the plaintiff’s settlement with one joint tortfeasor may afford a credit to
non-settling tortfeasors against the plaintiff’s recovery. That credit, however, is not a pro
rata credit based on the number of defendants remaining in the case. Nor is it a pro tanto
credit premised on the amount paid by the settling defendant to the plaintiff. The credit,
instead, is based on the factfinder’s allocation of fault to the settling defendant at trial,
with the non-settling defendant bearing the burden of proving the settling defendant’s
fault. Indeed, unless the non-settling joint tortfeasor provides fair and timely notice and
proves the settling defendant’s fault at trial, the settlement has no effect on the damages
imposed on the non-settling parties. Depending on the terms of the settlement and the
outcome of the trial, the allocation-of-fault procedure may provide a strategic advantage
to either the plaintiff or the non-settling joint tortfeasors. (pp. 18-24)
4. In Ciluffo, the Appellate Division did not rely on the JTCL or CNA as controlling
authority in the successive-tortfeasor case before it. 146 N.J. Super. at 483. Instead, the
court invoked pre-CNA decisions to reason that an initial tortfeasor “is potentially liable
for all the natural and proximate injuries that flow from the initial tort.” Id. at 482. The
court thus directed trial courts to assess the “injuries caused by the successive
independent tortfeasor” and compare them “with the damages recoverable for all of [the
plaintiff’s] injuries,” so the plaintiff would not obtain a double recovery. Id. at 482-83.
(pp. 24-27)
5. In Campione v. Soden, the Court considered the allocation of damages to successive
tortfeasors and inferred from the CNA “that the legislative objective would be achieved
by requiring juries to apportion damages between the successive accidents and to
apportion fault among the parties responsible for each accident.” 150 N.J. 163, 184
(1997). In its reasoning, the Court proposed a two-step analysis in successive-tortfeasor
cases tried before a jury in which the plaintiff does not settle with any defendant prior to
trial. Id. at 184-85. The Court explains Campione’s approach and notes it resembles the
approach adopted in section 26 of the Third Restatement of Torts. (pp. 28-31)
6. The Court explains in detail why it agrees with the Appellate Division that that the pro
tanto credit for non-settling defendants in successive-tortfeasor cases is incompatible with
New Jersey’s statutory allocation-of-fault scheme and case law as it has developed since
Ciluffo was decided. The Court overrules Ciluffo. (pp. 31-34)
3
7. New Jersey’s comparative-fault statutory scheme, Campione, and section 26 of the
Third Restatement of Torts suggest an equitable method of apportioning damages in
successive tortfeasor cases in which the plaintiff has alleged that multiple causative
events caused the harm and has settled with the initial tortfeasor prior to trial.
• The initial stage of the procedure is the jury’s apportionment of damages to each
causative event, if the damages are divisible and thus can be apportioned.
o In the first step of that apportionment process, the non-settling defendant
alleged to be responsible for the second causative event may present proof
of the damages suffered by plaintiff as a result of the first causative event.
A plaintiff who previously asserted in pleadings or discovery that the initial
tortfeasor was negligent may not take the opposite position at trial, but
plaintiff may urge the jury to apportion only a minor component of the
damages -- or none at all -- to the first causative event.
o Next, the trial court should instruct the jury to quantify the damages
resulting from the first causative event. The Court explains in detail how to
prevent a double recovery, why the amount of the settlement should not be
disclosed, and other important aspects of this step.
o The trial court should also instruct the jury to determine the amount of
damages that resulted from the second causative event, which would
constitute the total damages awarded to plaintiff in the judgment to be
entered by the trial court.
• In the second stage of the apportionment process, the trial court should instruct the
jury to apportion fault among the non-settling defendants as joint tortfeasors, in
accordance with N.J.S.A. 2A:15-5.2(a), with the percentages adding up to one
hundred percent. The court would then mold the total judgment -- the amount of
damages attributed by the jury to the medical malpractice -- in accordance with the
percentage of fault allocated to each defendant. N.J.S.A. 2A:15-5.2(d).
The Court provides detailed guidance as to the entire two-step apportionment process it
sets forth and agrees with the Appellate Division that the process “is fair and wholly
consonant with the developments in our law since Ciluffo.” Glassman, 465 N.J. Super. at
469. (pp. 34-38)
AFFIRMED AS MODIFIED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE PATTERSON’s opinion.
4
SUPREME COURT OF NEW JERSEY
A-48/49/50/51 September Term 2020
085273
Todd B. Glassman, as
Executor of the Estate of
Jennifer K. Collum-
Glassman, deceased,
Plaintiff-Respondent,
v.
Steven P. Friedel, M.D.,
Charles W. Farrell, M.D.,
Lon Weiner, M.D., Natacha
Field, R.N., Tanya Gooden, R.N.,
Constance MacKay, R.N.,
Anuradha Thalasila, M.D., and
Hackensack Meridian Health
d/b/a Riverview Medical Center,
Defendants-Appellants,
and
Juanito’s Inc. and KLE
Properties, LLC,
Defendants.
On appeal from the Superior Court,
Appellate Division, whose opinion is reported at
465 N.J. Super. 436 (App. Div. 2020).
Argued Decided
October 1, 2021 December 23, 2021
1
John M. Hockin, Jr. argued the cause for appellants
Natacha Field, R.N., Tanya Gooden, R.N., and
Hackensack Meridian Health d/b/a Riverview Medical
Center (Ronan, Tuzzio & Giannone, attorneys; Anthony
M. Tracy, of counsel and on the brief).
Michael R. Ricciardulli argued the cause for appellant
Anuradha Thalasila, M.D. (Ruprecht Hart Ricciardulli &
Sherman, attorneys; Michael R. Ricciardulli, of counsel
and on the brief, and Louis A. Ruprecht, on the brief).
Herbert Kruttschnitt, III argued the cause for appellant
Constance MacKay, R.N. (Dughi, Hewit & Domalewski,
attorneys; Herbert Kruttschnitt, III, of counsel, and Ryan
A. Notarangelo, on the brief).
Michael G. Halpin argued the cause for appellant Charles
W. Farrell, M.D. (Grossman, Heavey & Halpin,
attorneys; Michael G. Halpin, of counsel and on the
brief).
Christina Vassiliou Harvey argued the cause for
respondent (Lomurro, Munson, Comer, Brown &
Schottland; attorneys; Christina Vassiliou Harvey, of
counsel and on the brief, Jonathan H. Lomurro, of
counsel, and Alan J. Weinberg, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we address the allocation of damages in cases in which a
plaintiff asserts claims against successive tortfeasors and settles with the initial
tortfeasors before trial.
2
Plaintiff Todd B. Glassman, as Executor of the Estate of Jennifer K.
Collum-Glassman, his wife, filed a wrongful death and survival action against
the owners of a restaurant where Collum-Glassman fractured her ankle. He
alleged that the property owners’ negligence caused Collum-Glassman’s
accident, which in turn caused her pulmonary embolism and death a month
later. Plaintiff also asserted wrongful death and survival claims against
physicians and nurses who treated Collum-Glassman for her ankle injury and
the hospital that employed them, contending that Collum-Glassman’s
pulmonary embolism and death resulted from medical malpractice. Plaintiff
thus claimed that Collum-Glassman’s injuries and death resulted from two
independent events that occurred at different times and were caused by distinct
groups of tortfeasors.
After plaintiff settled his claims against the property owners, the trial
court granted the non-settling medical malpractice defendants’ pretrial motion
for a pro tanto credit1 based on the amount plaintiff received in his settlement,
pursuant to the Appellate Division’s opinion in Ciluffo v. Middlesex General
Hospital, 146 N.J. Super. 476, 481-83 (App. Div. 1977).
1
The term “pro tanto” denotes “[t]o that extent; for so much.” Black’s Law
Dictionary 1478 (11th ed. 2019). In the setting of this case, a “pro tanto
credit” is “a credit in the amount of the settlement with the settling tortfeasor .”
Restatement (Third) of Torts: Apportionment of Liability § 16 cmt. c (Am.
Law Inst. 2000).
3
The Appellate Division granted plaintiff’s motion for leave to file an
interlocutory appeal, and reversed the trial court’s determination. Glassman v.
Friedel, 465 N.J. Super. 436, 445-46 (App. Div. 2020). In its opinion, the
Appellate Division rejected the application of the Ciluffo pro tanto credit to
successive-tortfeasor cases in light of the Legislature’s enactment of the
Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. The Appellate
Division ordered that the trial court charge the jury to apportion the damages
between the two successive causative events on which plaintiff premised his
claims, Collum-Glassman’s initial accident and the alleged medical
malpractice. See id. at 446-69.
We granted leave to appeal, and we now modify and affirm the
Appellate Division’s decision. We agree with the Appellate Division that the
Ciluffo pro tanto credit does not further the legislative intent expressed in the
Comparative Negligence Act and does not reflect developments in our case
law over the past four decades. In its stead, we set forth a procedure to
apportion any damages assessed in the trial of this case and future successive-
tortfeasor cases in which the plaintiff settles with the initial tortfeasors prior to
trial.
4
I.
A.
On March 25, 2017, Collum-Glassman, a forty-five-year-old special
education teacher, visited Juanito’s, a Red Bank restaurant, to buy take-out
food for her family. According to plaintiff, Juanito’s was owned and operated
by defendants Juanito’s, Inc., and KLE Properties, LLC (collectively, the
Property Defendants).
As Collum-Glassman left the restaurant, she tripped and fell in the
doorway, sustaining a comminuted trimalleolar fracture of her left ankle. She
was hospitalized at Hackensack Meridian Health d/b/a Riverview Medical
Center (Riverview) and treated by seven medical professionals affiliated with
Riverview: Steven P. Friedel, M.D.; Lon Weiner, M.D.; Charles W. Farrell,
M.D.; Anuradha Thalasila, M.D.; Natacha Field, R.N.; Tanya Gooden, R.N.;
and Constance MacKay, R.N. (collectively, the Medical Defendants).
On March 30, 2017, defendants Weiner and Friedel conducted an open
reduction internal fixation of Collum-Glassman’s left ankle. On April 19,
2017, three weeks after the surgery, Riverview discharged Collum-Glassman.
On April 26, 2017, Collum-Glassman suffered a pulmonary embolism
and died. According to plaintiff’s answers to interrogatories, an autopsy
5
revealed that the cause of death was “[s]addle pulmonary embolism due to
immobilization following fractures of left ankle due to fall.”
B.
1.
On June 28, 2018, plaintiff filed a wrongful death and survival action
against the Property Defendants. Plaintiff alleged that the Property Defendants
“did own, control, inspect, maintain, clean and repair” Juanito’s on the date of
Collum-Glassman’s accident, that they “did carelessly and negligently control,
inspect and maintain the aforesaid premises,” and that, as a result of the
defendants’ negligence, Collum-Glassman “suffered severe injuries ultimately
leading to her death.”
In discovery, plaintiff’s counsel served the expert report of a forensic
economist on counsel for the Property Defendants. The expert opined that as a
result of Collum-Glassman’s death, plaintiff suffered economic loss in the
amount of $2,349,278, consisting of lost earnings, health coverage, pension
benefits, and services.
In an amended complaint, plaintiff reiterated his wrongful death and
survival claims against the Property Defendants. He also asserted wrongful
death and survival claims against defendants Riverview, Friedel, Weiner,
Farrell, Field, Gooden, and McKay, alleging that each defendant negligently
6
violated and deviated from the standard of care and was otherwise negligent
and careless in treating Collum-Glassman. Plaintiff alleged that Collum-
Glassman suffered an injury to her right leg during surgery performed on her
left ankle, and that she “sustained severe, painful bodily injuries, which
necessitated her obtaining additional medical treatment, caused her great pain
and suffering and incapacitated her until her death.” In a second amended
complaint, plaintiff asserted similar claims against defendant Thalasila.
In their answers, the Medical Defendants asserted affirmative defenses
based on comparative negligence and crossclaims for contribution and
indemnification against the other defendants. Each defendant provided notice
of intent to seek an allocation of fault pursuant to ----
Rule 4:7-5(c) against any
settling defendant in the event that the plaintiff settled his claims against one
or more defendants prior to trial.
2.
On September 11, 2019, counsel for plaintiff and counsel for the
Property Defendants filed a stipulation of dismissal, stating that plaintiff had
settled his claims against those defendants. In an application seeking an
apportionment hearing and the appointment of a law guardian for plaintiff’s
minor child, plaintiff’s counsel disclosed that KLE Properties had agreed to
7
pay $1,150,000 to plaintiff in settlement of plaintiff’s claims against the
Property Defendants.
The Medical Defendants then moved before the trial court for an order
“to establish the principles espoused in Ciluffo regarding successor liability.”
The court granted each defendant’s application, stating that “the principles set
forth in [Ciluffo] shall apply to this case.” It ordered that “if the settlement of
[the Property Defendants] exceeds the total provable damages found by the
jury, plaintiff will not be entitled to any compensation” from each defendant.
The trial court further ruled that “if the settlement of [the Property Defendants]
exceeds the total provable damages found by the jury minus the damages
found to be attributable” to a specific defendant, “then the amount of this
excess shall be credited against the award payable by” that defendant. Finally,
the court ordered that “if the settlement of [the Property Defendants] is less
than the total provable damages found by the jury minus the damages found to
be attributable” to a specific defendant, then “plaintiff shall be permitted to
recover the full amount assessed” to that defendant. The court provided
hypothetical examples illustrating the manner in which the pro tanto credit
would be calculated, depending upon the court’s determination of the settling
parties’ intent and the verdict at trial.
8
Plaintiff moved for reconsideration, arguing that the trial court’s orders
were in essence a grant of summary judgment notwithstanding the existence of
genuine issues of material fact. He also asserted that the court had improperly
applied the principles of Ciluffo.
The trial court rejected plaintiff’s arguments and denied reconsideration.
The court reasoned that its orders “take into account a total amount of damages
and then subtract the total amount of damages attributable to the alleged
medical malpractice. This math provides the court with enough information to
derive damages from the slip and fall.”
3.
Pursuant to Rule 2:5-6(a), plaintiff moved for leave to appeal the trial
court’s interlocutory orders, and the Appellate Division granted leave to
appeal.
In a thoughtful and comprehensive opinion by Judge Messano, the
Appellate Division acknowledged that under Ciluffo, the Medical Defendants
were “entitled potentially to a pro tanto credit against any award based on the
plaintiff’s prior settlement with the owner of the premises.” Glassman, 465
N.J. Super. at 442 (footnote omitted) (discussing Ciluffo, 146 N.J. Super. at
482-83). The court noted, however, that Ciluffo had not addressed “the
continued viability of a settlement credit after enactment of the Comparative
9
Negligence Act.” Id. at 443. The appellate court concluded that the pro tanto
credit envisioned in Ciluffo was a vestige of pre-Comparative Negligence Act
common law, and it accordingly rejected the continued application of such
credits under the current statutory scheme. Id. at 464-68.
The Appellate Division addressed the manner in which damages should
be allocated in a successive-tortfeasor setting in which the plaintiff has settled
with the initial tortfeasor. Id. at 446-58. The court rejected the Medical
Defendants’ contention that the Comparative Negligence Act has no relevance
to successive tortfeasors. Id. at 452-53. It recognized, however, that “a
successive tortfeasor is liable generally only for damages proximately caused
by the independent tortious conduct succeeding the original event.” Id. at 451.
The court reasoned that in the successive-tortfeasor setting, the Legislature’s
goal of fair apportionment of damages in accordance with each party’s fault is
best achieved “by requiring juries to apportion damages between . . .
successive [events] and to apportion fault among the parties responsible for
each [event].” Id. at 457 (omission and alterations in original) (quoting
Campione v. Soden, 150 N.J. 163, 184 (1997)). The Appellate Division stated
that “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
10
tortfeasor was adjudged to have been negligent or whether the initial tortfeasor
remains in the case.” Id. at 454-55 (citing Campione, 150 N.J. at 184).
The Appellate Division thus held that the Medical Defendants were
entitled to an allocation of damages between damages attributable to Collum-
Glassman’s accident at Juanito’s and damages that resulted from the Medical
Defendants’ alleged medical malpractice. Id. at 457-58, 469. As the court
explained, if the $1,150,000 settlement between plaintiff and KLE Properties,
LLC “is less than the jury’s assessment” of damages related to Collum-
Glassman’s ankle fracture at Juanito’s, “plaintiff reaps the result of what may
have been a bad bargain, but the Medical Defendants are only responsible for
the damages attributable to their negligence.” Id. at 469. In contrast, the
Appellate Division explained, “[i]f 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.” Ibid.The Appellate Division accordingly reversed the trial court’s
determinations, vacated its orders, and remanded the matter to the trial court
for further proceedings. Id. at 446, 468-69.
11
4.
We granted the Medical Defendants’ motions for leave to appeal. 245
N.J. 469 (2021).
II.
A.
The Medical Defendants urge us to reaffirm the Ciluffo pro tanto credit,
which they view to be consonant with case law recognizing the distinction
between joint and successive tortfeasors. They argue that the Comparative
Negligence Act governs only cases involving joint tortfeasors, and that it has
no bearing on this appeal. The Medical Defendants assert that the Appellate
Division’s allocation of damages permits a plaintiff who has settled with an
initial tortfeasor to achieve a double recovery for the same damages.
B.
Plaintiff argues that we should affirm the Appellate Division’s
determination that the Comparative Negligence Act abrogates the procedure
for the award of a pro tanto settlement credit prescribed in Ciluffo. He
contends that the Comparative Negligence Act governs all negligence actions,
including actions involving successive tortfeasors as well as actions involving
joint tortfeasors. Plaintiff asserts that the Act’s application would limit any
12
damages imposed on the Medical Defendants to the percentage of the harm
caused by their negligence, thus avoiding any unfair double recovery.
III.
A.
We have not previously addressed the impact of an initial tortfeasor’s
settlement with a plaintiff on the damages imposed on successive tortfeasors
found liable at trial. We find guidance, however, in principles stated by the
Legislature and our courts as they have addressed allocation of fault to settling
defendants in the more prevalent joint-tortfeasor setting.
1.
At common law, prior to the more recent statutory developments in
contribution among tortfeasors, “the plaintiff alone controlled where the
burden of fault would lie.” Young v. Latta, 123 N.J. 584, 588 (1991). The
rule also allowed a plaintiff to “control the proportion in which culpable
tortfeasors would be responsible for payment”-- that is, the plaintiff “could
collect all or any portion of the award from any judgment debtor with available
assets.” Id. at 588-89. The common law thus “permitted a plaintiff to place
the entire burden of fault on one defendant, who was then helpless to shift any
of the responsibility to any other joint defendants.” Tino v. Stout, 49 N.J. 289,
298 n.3 (1967).
13
In 1952, responding to the “injustice of the common law,” the
Legislature enacted the first of two statutes that now comprise our allocation-
of-fault statutory scheme, the Joint Tortfeasors Contribution Law. Ibid.; see
N.J.S.A. 2A:53A-1 to -5. The Law “was enacted to promote the fair sharing of
the burden of judgment by joint tortfeasors and to prevent a plaintiff from
arbitrarily selecting his or her victim.” Holloway v. State, 125 N.J. 386, 400-
01 (1991). In the Joint Tortfeasors Contribution Law, the Legislature afforded
contribution rights to joint tortfeasors, defined as “two or more persons jointly
and 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.S.A.
2A:53A-1. Under the statute, a defendant who paid the injured person more
than that defendant’s pro rata2 share of a judgment -- the total judgment
divided by the total number of defendants -- was “entitled to recover the
excess from the remaining tortfeasors.” Young, 123 N.J. at 589; see also
Blazovic v. Andrich, 124 N.J. 90, 103 (1991) (noting that under the Law, a
joint tortfeasor’s pro rata share of a damages verdict was determined “simply
2
“Pro rata” is defined as “[p]roportionately; according to an exact rate,
measure, or interest.” Black’s Law Dictionary 1475 (11th ed. 2019) (adding as
an example to illustrate how the term is used, “the liability will be assessed pro
rata between the defendants”).
14
by dividing the total verdict by the number of available tortfeasors, that is,
those solvent tortfeasors not beyond the reach of process”).
The Joint Tortfeasors Contribution Law is silent as to the effect of a
settlement between a plaintiff and a joint tortfeasor on the damages imposed
on the remaining tortfeasors; the Legislature left that determination to case
law. See N.J.S.A. 2A:53A-1 to -5; Young, 123 N.J. at 589 (describing the
Joint Tortfeasors Contribution Law as a contribution statute “of a rather simple
kind that declares the right to contribution and leaves most questions to the
courts” (quotation omitted; no alterations indicated)).
Early case law applying the Joint Tortfeasors Contribution Law entitled
non-settling defendants to a credit against the judgment, calculated by
determining what the settling defendant would have paid as a pro rata share of
the judgment. Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J. 67, 92-
94 (1954). The pro rata credit reflected “the settler’s fair share of the amount
of the verdict -- regardless of the actual settlement”; it therefore “represent[ed]
the judicial implementation of the statutory right to contribution,” obviating
the need for the non-settling defendants to pursue a contribution action against
the settling defendant. Young, 123 N.J. at 591.
Thus, in cases decided under the Joint Tortfeasors Contribution Law
prior to the enactment of the Comparative Negligence Act, “a settlement with a
15
joint tortfeasor, even though for less than a pro rata share of the total claim,
reduced the plaintiff’s total claim against the nonsettling codefendant or
codefendants by the pro rata share and thus barred contribution from the
settling tortfeasor,” who had no further liability to any party. Cartel Cap.
Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980). The amount of the pro rata
credit was determined by dividing the judgment by the number of defendants
in the case and involved no assessment of the settling party’s fault. Ibid.
2.
When it enacted the Comparative Negligence Act in 1972, the
Legislature fundamentally altered the method by which courts determine the
impact of the plaintiff’s settlement with one joint tortfeasor on the liability of
the remaining non-settling tortfeasors. The Act’s key reform ameliorated the
harsh consequences of the doctrine of contributory negligence, which had
barred any recovery under the common law. N.J.S.A. 2A:15-5.1.3 The
Legislature also prescribed a procedure by which the factfinder assesses each
3
Under the Comparative Negligence Act, the plaintiff’s contributory
negligence does “not bar recovery in an action . . . to recover damages for
negligence resulting in death or injury to person or property,” as long as the
plaintiff’s negligence “was not greater than the negligence of the person
against whom recovery is sought or was not greater than the combined
negligence of the persons against whom recovery is sought.” N.J.S.A. 2A:15 -
5.1. The Legislature determined, however, that “[a]ny damages sustained shall
be diminished by the percentage sustained of negligence attributable to the
person recovering.” Ibid.
16joint tortfeasor’s percentage of fault and the court molds the judgment in
accordance with that assessment. N.J.S.A. 2A:15-5.2(a) provides in part that,
[i]n all negligence actions and strict liability actions in
which the question of liability is in dispute, . . . the trier
of fact shall make the following as findings of fact:
(1) The amount of damages which would be
recoverable by the injured party regardless of any
consideration of negligence or fault, that is, the
full value of the injured party’s damages.
(2) The extent, in the form of a percentage, of
each party’s negligence or fault. The percentage
of negligence or fault of each party shall be based
on 100% and the total of all percentages of
negligence or fault of all the parties to a suit shall
be 100%.
After the jury, or the judge acting as factfinder in a bench trial, assesses
each tortfeasor’s percentage of fault, the judge “mold[s] the judgment from the
findings of fact made by the trier of fact.” N.J.S.A. 2A:15-5.2(d).
As later amended, the Comparative Negligence Act authorizes the
plaintiff to recover
a. The full amount of the damages from any party
determined by the trier of fact to be 60% or more
responsible for the total damages.
....
c. Only that percentage of the damages directly
attributable to that party’s negligence or fault from any
party determined by the trier of fact to be less than 60%
responsible for the total damages.
17
[N.J.S.A. 2A:15-5.3(a), (c).]
The Legislature incorporated the right of contribution prescribed by the
Joint Tortfeasors Contribution Law into the Comparative Negligence Act’s
fault-based allocation scheme by allowing “[a]ny party who is compelled to
pay more than his percentage share [to] seek contribution from the other joint
tortfeasors.” N.J.S.A. 2A:15-5.3(e). When the two statutes are applied in
tandem, the percentage of a total judgment assessed against a joint tortfeasor is
determined not by pro rata allocation of damages, but by the factfinder’s
determination of the fault of each tortfeasor and, in cases involving
contributory negligence, the fault of the plaintiff. See N.J.S.A. 2A:15-
5.1, -5.2, -5.3.
Thus, “[t]he pro rata contribution scheme of the Joint Tortfeasors
Contribution Law has been eclipsed by the percentage-liability formula
established by [N.J.S.A. 2A:15-5.2 and -5.3].” Young, 123 N.J. at 592; see
also Cartel Cap., 81 N.J. at 569 (“[T]he Legislature has seen fit to redefine the
‘pro rata’ allocation to be a party’s ‘percentage share’ in the contribution
scheme between and among joint tortfeasors.” (quoting Rogers v. Spady, 147
N.J. Super. 274, 277 (App. Div. 1977))).
“When applied together, the Comparative Negligence Act and Joint
Tortfeasors Contribution Law implement New Jersey’s approach to fair
18
apportionment of damages among plaintiffs and defendants, and among joint
defendants.” Town of Kearny v. Brandt, 214 N.J. 76, 97 (2013) (no alterations
indicated) (quoting Erny v. Estate of Merola, 171 N.J. 86, 99 (2002)). The
Comparative Negligence Act and the Joint Tortfeasors Contribution Law
together “promote ‘the distribution of loss in proportion to the respective faults
of the parties causing that loss’” and ensure “that damages are ordinarily
apportioned to joint tortfeasors in conformity to the factfinder’s allocation of
fault.” Jones v. Morey’s Pier, Inc., 230 N.J. 142, 160 (2017) (quoting Town of
Kearny, 214 N.J. at 102).
Like the Joint Tortfeasors Contribution Law, the Comparative
Negligence Act does not address the effect of one joint tortfeasor’s settlement
with the plaintiff on the damages imposed on non-settling tortfeasors. See
N.J.S.A. 2A:15-5.1, -5.2, -5.3. In Young, however, we “implicitly recognized
‘that a defendant who settles and is dismissed from the action remains a
“party” to the case for the purpose of determining the non-settling defendant’s
percentage of fault.’” Town of Kearny, 214 N.J. at 100 (quoting Brodsky v.
Grinnell Haulers, Inc., 181 N.J. 102, 113 (2004)). We held that a non-settling
defendant who provides “fair and timely notice” of intent to seek an allocation
of fault to a settling defendant at trial, and then proves the settling defendant’s
fault, is entitled to such an allocation, even if that defendant has filed no
19
crossclaim against the settling defendant. Young, 123 N.J. at 596-97; accord
R. 4:7-5(c); Krzykalski v. Tindall, 232 N.J. 525, 535-36 (2018); Town of
Kearny, 214 N.J. at 100. As we explained in Town of Kearny,
[W]hen a defendant ceases to participate in the case by
virtue of a settlement, a non-settling defendant who
meets the relevant requirements as to notice and proof
may obtain an allocation of fault to the settling
defendant. The settling defendant does not pay any
portion of the judgment; any percentage of fault
allocated to the settling defendant operates as a credit
to the benefit of the defendants who remain in the case.
[Town of Kearny, 214 N.J. at 100 (citing Young, 123
N.J. at 596-97).]
Thus, under the Legislature’s allocation-of-fault statutory scheme as
similarly construed in Young, the plaintiff’s settlement with one joint
tortfeasor may afford a credit to non-settling tortfeasors against the plaintiff’s
recovery. See ibid.That credit, however, is not a pro rata credit based on the number of
defendants remaining in the case. Young, 123 N.J. at 592; accord Johnson v.
Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 436 (App. Div. 1997).
Nor is it a pro tanto credit premised on the amount paid by the settling
defendant to the plaintiff. Johnson, 306 N.J. Super. at 436-37. The credit,
instead, is based on the factfinder’s allocation of fault to the settling defendant
at trial, with the non-settling defendant bearing the burden of proving the
20
settling defendant’s fault. See Rowe v. Bell & Gossett Co., 239 N.J. 531, 552-
55 (2019); Town of Kearny, 214 N.J. at 100-01; Young, 123 N.J. at 591-92.
Indeed, unless the non-settling joint tortfeasor provides fair and timely
notice and proves the settling defendant’s fault at trial, “there is simply no
right in the adjudicated tortfeasors to a reduction of their own separately -
allocated responsibility for the verdict,” and the settlement has no effect on the
damages imposed on the non-settling parties. Johnson, 306 N.J. Super. at 437;
see also Rowe, 239 N.J. at 555-56.
3.
To summarize, our law governing allocation of damages to non-settling
joint tortfeasors provides the following core principles.
First, when the Legislature enacted the Comparative Negligence Act, it
abandoned common-law pro rata allocation of damages in favor of the
factfinder’s assessment of the percentage of fault attributable to the alleged
joint tortfeasors and, if contributory negligence is proven, to the plaintiff.
N.J.S.A. 2A:15-5.2, -5.3.
Second, under the Joint Tortfeasors Contribution Law and the
Comparative Negligence Act, the plaintiff’s settlement with a joint tortfeasor
does not afford to the remaining tortfeasors a pro rata credit premised on the
number of defendants or a pro tanto credit based on the amount of the
21
settlement. See N.J.S.A. 2A:15-5.2, -5.3; N.J.S.A. 2A:53A-1. Instead, the
non-settling defendant must provide timely notice and prove the fault of a
settling defendant in order to obtain a credit against the total verdict based on
the factfinder’s assignment of a percentage of fault to the settling defendant.
Ibid.; see also Krzykalski, 232 N.J. at 535-36; Young, 123 N.J. at 595-96;
Restatement (Third) of Torts: Apportionment of Liability (Third Restatement)
§ 16 (Am. Law Inst. 2000) (addressing the effect of a tortfeasor’s settlement
on the plaintiff’s recovery from other jointly and severally liable tortfeasors) .
Third, in joint tortfeasor cases decided under the Comparative
Negligence Act, neither the court nor the jury considers the terms of the
settlement agreement, and the settling defendant has no further exposure
beyond the terms of that agreement. See Rowe, 239 N.J. at 554 (noting that
the Court construes the “statutory scheme to authorize an allocation of fault to
a settling defendant in appropriate settings, without regard to the amount of the
settlement”); Johnson, 306 N.J. Super. at 436 (“[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.”). Depending on the terms of the
settlement and the outcome of the trial, the allocation-of-fault procedure may
provide a strategic advantage to either the plaintiff or the non-settling joint
tortfeasors. See Young, 123 N.J. at 599 (observing that a plaintiff “cannot
22
complain if the credit works to his or her disadvantage, because any reduction
in a plaintiff’s recovery is directly attributable to the acceptance of less than
the settler’s share of total recoverable damages”); Rogers, 147 N.J. Super. at
278 (“[I]f [a] plaintiff makes a particularly good bargain in settlement and the
ultimate negligence found attributable to the settling defendant would have
resulted in a judgment for less than the amount of [the] settlement, plaintiff
will benefit by the excess amount.”).
Those principles inform our consideration of the successive-tortfeasor
setting of this appeal.
B.
1.
In successive-tortfeasor cases, the plaintiff alleges that the harm was
caused by two or more independent torts that occurred at different times and
are distinct from one another. See, e.g., Campione, 150 N.J. at 168-70 (stating
that the plaintiff alleged harm from sequential motor vehicle accidents);
Ciluffo, 146 N.J. Super. at 478-80 (noting that the plaintiff claimed to have
been harmed by a combination of her original injury and subsequent medical
malpractice); see also Mahoney, Forte & Turpan, N.J. Personal Injury
Recovery § 14:8-1 (2021) (observing that successive-tortfeasor allocation
issues may arise when “the injured party settled with one tortfeasor and then
23
instituted separate litigation against a person whose subsequent negligence
aggravated the initial tort,” and that “[t]he subsequent aggravation in those
cases typically occurred as a result of medical malpractice”).
In contrast to the joint-tortfeasor situations that our courts routinely
encounter, successive-tortfeasor settings have been analyzed in few appellate
decisions. Indeed, when Ciluffo was decided, neither this Court nor the
Appellate Division had addressed the allocation-of-damages question in a
successive-tortfeasor case.
2.
In Ciluffo, the plaintiff sustained a neck injury in an accident at a
friend’s home. 146 N.J. Super. at 479. She was initially treated by a physician
at a hospital emergency room and sent home with a cervical collar and
medication. Ibid. The following day, a radiologist reviewed the plaintiff’s x-
rays, summoned her back to the hospital, and ordered further testing, which
revealed a fracture of her cervical spine. Ibid. During her treatment for the
fracture, the plaintiff developed pneumonia and other complications. Id. at
479-80.
The Ciluffo plaintiff claimed that the owner of the property where she
was injured was liable for her injuries and also asserted a medical malpractice
claim against her treating physician on the ground that the delay in her
24
treatment prolonged her recovery. Ibid. After the plaintiff settled her claim
against the property owner for $30,000, the trial court dismissed her medical
malpractice claim against the physician on two grounds: her failure to proffer
evidence that the delay in her treatment caused her medical complications, and
her settlement with the property owner, which the court viewed to encompass
all of the damages that the plaintiff had suffered. Id. at 480. The plaintiff
appealed. Id. at 478-79.
Noting that “[w]e are not dealing with a case of joint tortfeasors,” id. at
483, the Appellate Division did not premise its decision in Ciluffo on the
allocation-of-fault scheme set forth in the Joint Tortfeasors Contribution Act
and the Comparative Negligence Act.4 Instead, the court invoked this Court’s
ruling in Daily v. Somberg that a “plaintiff’s settlement with and release of [an
initial tortfeasor] would not release” the plaintiff’s treating physicians “unless
the release was intended to have that effect.” Id. at 481-82 (citing Daily, 28
N.J. 372, 384 (1958)). In Ciluffo, the Appellate Division also relied on its
decision in Knutsen v. Brown, which construed a judgment against an initial
4
The Comparative Negligence Act became effective on August 22, 1973. See
L. 1973, c. 146, §§ 1 to 3 (codified at N.J.S.A. 2A:15-5.1, -5.2, -5.3). The Act
thus took effect after the Ciluffo plaintiff’s injuries but before the Appellate
Division issued its decision in that appeal. See Ciluffo, 146 N.J. Super. at 476,
479-80.
25
tortfeasor to also compensate the plaintiff for his claims against subsequent
tortfeasors. Ibid. (citing Knutsen, 96 N.J. Super. 229, 235 (App. Div. 1967)).
Based on those decisions, the Appellate Division reasoned in Ciluffo
that an initial tortfeasor “is potentially liable for all the natural and proximate
injuries that flow from the initial tort,” and that the plaintiff’s recovery against
the first tortfeasor “may include payment for some or all of the injuries later
suffered at the hands of a second tortfeasor.” Id. at 482 (citing Knutsen, 96
N.J. Super. at 235). The Appellate Division directed trial courts to assess the
“injuries caused by the successive independent tortfeasor” and compare them
“with the damages recoverable for all of [the plaintiff’s] injuries,” so that the
plaintiff would not obtain a double recovery. Id. at 482-83. It concluded that
based on its assessment of the settling parties’ intent, a trial court could award
the second tortfeasor -- the plaintiff’s treating physician -- a pro tanto credit
based on the amount of the settlement against the plaintiff’s potential recovery
at trial. Ibid. The Ciluffo court explained that
[i]f the settlement exceeds plaintiff’s total provable
damages she would be entitled to no further recovery
from [the physician]. If the settlement exceeds the
amount of her provable damages minus the damages
caused by [the physician], the amount of such excess
should be credited against the damages assessed solely
for the harm caused by [the physician]. If the
settlement is less than the amount of her total provable
damages minus the damages caused solely by [the
physician], plaintiff should recover the full amount of
26
damages assessed against [the physician] alone for the
pain and suffering allegedly endured by her during the
delay in treatment within the first 24 hours.
[Ibid.]
The Appellate Division accordingly reversed the trial court’s decision
dismissing the medical malpractice claim in Ciluffo, and remanded the matter
for a new trial. Id. at 483.5
5
The Appellate Division invoked Ciluffo in several subsequent decisions but
did not apply the pro tanto credit in the circumstances of those cases. See,
e.g., Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super. 108, 119-21 (App. Div.
2006) (recognizing the Ciluffo procedure but affirming the trial court’s
decision to apportion damages between the initial and subsequent tortfeasors
instead of awarding a pro tanto credit to the second tortfeasor); Mitchell v.
Procini, 331 N.J. Super. 445, 457 (App. Div. 2000) (reiterating the holding of
Ciluffo, but declining to award a pro tanto credit to the non-settling defendant
because the plaintiff’s contributory negligence “makes it impossible to
determine whether plaintiff received full compensation for the acts of the
successive tortfeasor”); New Milford Bd. of Educ. v. Juliano, 219 N.J. Super.
182, 187 (App. Div. 1987) (citing Ciluffo for the proposition that “a tortfeasor
is responsible for all damages that naturally and proximately flow from the
initial tort, including the consequences of medical malpractice in treating the
injuries caused by his wrong,” but addressing only the plaintiff’s right to seek
indemnification from the defendant doctors); Gold v. Aetna Life & Cas. Ins.
Co., 233 N.J. Super. 271, 278-79 (App. Div. 1989) (“remand[ing] for entry of
an order requiring submission to arbitration” and an assessment of the amount
of the plaintiffs’ damages to determine whether the plaintiffs might be entitled
to more than they had already received from a settlement, with an allocation of
credits, if necessary); Lewis v. Preschel, 237 N.J. Super. 418, 421-22 (App.
Div. 1989) (remanding for a new trial because the jury was not instructed to
consider “the extent to which the [defendant’s] malpractice, as distinct from
the accident-caused initial injury, contributed to the damages proved”).
27
C.
1.
Although we have not previously considered the precise issue raised by
this appeal, we briefly addressed the allocation of damages to successive
tortfeasors in Campione, 150 N.J. at 184-85. There, the plaintiff was injured
in a motor vehicle accident involving two collisions less than a minute apart.
Id. at 168-69. The jury awarded $750,000 in damages to the plaintiff and
assigned percentages of fault to several defendants involved in one or both
collisions, but it was unable to allocate $450,000 of the damages to either the
first or second collision. Id. at 171-72. Absent a jury determination as to that
portion of the damages, the trial court divided those damages between two
defendants and molded the verdict accordingly. Ibid.The Appellate Division in Campione rejected the trial court’s allocation
of liability as “an invasion of the jury’s province.” Id. at 173. It held,
however, that when a court determines in a successive-tortfeasor case that the
damages are indivisible and cannot be allocated with reasonable certainty, it
should impose joint and several liability on the defendants involved in both
causative events. Ibid.Reversing the Appellate Division’s determination and reinstating all but
one aspect of the trial court’s judgment, we acknowledged that the
28
Comparative Negligence Act “does not specifically address the jury’s
responsibility in cases involving injuries sustained in successive accidents.”
Id. at 184. We inferred, however, “that the legislative objective would be
achieved by requiring juries to apportion damages between the successive
accidents and to apportion fault among the parties responsible for each
accident.” Ibid. We added a series of “observations,” which we categorized as
“unnecessary to our disposition”:
In our view, the Act contemplates an allocation of
damages caused by successive accidents in order to
effectuate the allocation of liability among the
responsible defendants. At the conclusion of a trial
where allocation of damages among multiple
tortfeasors is an issue, the trial court is to determine, as
a matter of law, whether the jury is capable of
apportioning damages. The absence of conclusive
evidence concerning allocation of damages will not
preclude apportionment by the jury, but will necessarily
result in a less precise allocation than that afforded by
a clearer record. If the court establishes as a matter of
law that a jury would be incapable of apportioning
damages, the court is to apportion damages equally
among the various causative events. If the court
concludes that the jury would be capable of
apportioning damages, the jury should be instructed to
do so.
[Id. at 184-85 (citations omitted).]
We thus proposed in Campione a two-step analysis in successive-
tortfeasor cases tried before a jury in which the plaintiff does not settle with
any defendant prior to trial. Id. at 184-85. First, if the court determines that
29
the jury is capable of dividing the plaintiff’s damages between the first and
second causative events, it instructs the jury to identify the quantum of
damages caused by the first causative event and the quantum of damages
caused by the second causative event. Ibid. Next, as to each causative event,
the jury apportions a percentage of fault to each party alleged to have caused
that event. Ibid.; see also Mahoney, Forte & Turpan, § 15:1-1 (“[W]hen
separate elements of damages are attributable to different, but related, events, a
two-step process may be necessary. The trier of fact may be required to
apportion damages among two or more causative events, and then to allocate
fault among the parties responsible for each event.”).
2.
The allocation-of-damages process described in Campione closely
resembles the approach adopted in section 26 of the Third Restatement of
Torts. That section provides as follows:
(a) When damages for an injury can be divided by
causation, the factfinder first divides them into their
indivisible component parts and separately apportions
liability for each indivisible component part under
Topics 1 through 4 [of this Restatement].
(b) Damages can be divided by causation when the
evidence provides a reasonable basis for the factfinder
to determine:
(1) that any legally culpable conduct of a party or
other relevant person to whom the factfinder
30
assigns a percentage of responsibility was a legal
cause of less than the entire damages for which
the plaintiff seeks recovery and
(2) the amount of damages separately caused by
that conduct.
Otherwise, the damages are indivisible and thus the
injury is indivisible. Liability for an indivisible injury
is apportioned under Topics 1 through 4.
[Third Restatement § 26.]
As the Restatement’s drafters explained, the two-step procedure
“effectuates the basic policies of causation and comparative responsibility. It
does not make a plaintiff or a defendant responsible for damages that person
did not cause, and it apportions liability among persons causing any
component part according to that person’s comparative share of
responsibility.” Id. at cmt. d.
IV.
A.
Against that backdrop, we conclude that the Ciluffo pro tanto credit to a
non-settling defendant in a successive-tortfeasor case cannot be reconciled
with our statutory and case law as it stands today. We share the Appellate
Division’s view that the Ciluffo credit is “a vestige of the common law and has
no support in our current jurisprudence.” Glassman, 465 N.J. Super. at 446.
31
First, although the Ciluffo pro tanto credit found support in pre-
Comparative Negligence Act common law jurisprudence, such as this Court’s
opinion in Daily and the Appellate Division’s decision in Knutsen, that credit
diverges from the legislative intent expressed in the Comparative Negligence
Act.
We acknowledge that the Legislature did not address successive-
tortfeasor settings in the Act. See N.J.S.A. 2A:15-5.2, -5.3. The statute’s
procedure for the allocation of a percentage of fault, premised in part on the
right of contribution among joint tortfeasors, applies only to cases in which the
responsible parties are alleged to have collectively caused a single harm. Ibid.;
see also N.J.S.A. 2A:53A-3 (prescribing a right of contribution for joint
tortfeasors).
We agree with the Appellate Division, however, that the Comparative
Negligence Act’s legislative goal of promoting fault-based allocation of
damages provides general guidance for successive-tortfeasor situations.
Glassman, 465 N.J. Super. at 452-53. The Legislature clearly expressed that
the burden of a damages award should be apportioned not by arbitrary factors
such as the number of defendants named in a case, but by the jury’s
determination of each party’s degree of fault. N.J.S.A. 2A:15-5.2, -5.3. Like
the common-law pro rata credit for a non-settling party rejected by the
32
Legislature in the Comparative Negligence Act, the common-law pro tanto
credit prescribed by Ciluffo, untethered to an assessment of any party’s fault,
may give rise to arbitrary results. In short, the Ciluffo credit is not consonant
with the legislative goal expressed in the current statutory allocation-of-fault
scheme.
Second, the pro tanto credit prescribed in Ciluffo is premised on the
assumption that when they settled their dispute, the plaintiff and the initial
tortfeasor may have intended to resolve some or all of the plaintiff’s claims
against the successive tortfeasors as well as the claim against the settling
tortfeasor. Ciluffo, 146 N.J. Super. at 482-83. Ciluffo thus mandates that the
trial court ascertain whether the settlement reflects the parties’ mutual intent to
resolve claims against non-settling defendants as well as claims against the
defendant settling the case, regardless of whether the settlement agreement
reveals any hint of such an intent. Ibid. As the Appellate Division has
observed, however, “factual and legal issues in the context of settlement
negotiations are rarely so clear-cut as to permit a realistic apportionment of the
settlement amount.” Crispin v. Volkswagenwerk AG, 248 N.J. Super. 540,
570 (App. Div. 1991). Consequently, a court applying Ciluffo may be
compelled to premise a pro tanto credit on nothing more than guesswork.
33
We thus agree with the Appellate Division that that the pro tanto credit
for non-settling defendants in successive-tortfeasor cases is incompatible with
our statutory allocation-of-fault scheme and our case law as it has developed in
the four decades since Ciluffo was decided. Glassman, 465 N.J. Super. at 446-
69. We overrule Ciluffo.
B.
Our comparative-fault statutory scheme, our decision in Campione, and
section 26 of the Third Restatement of Torts suggest an equitable method of
apportioning damages in successive-tortfeasor cases in which the plaintiff has
alleged that multiple causative events caused the harm and has settled with the
initial tortfeasor prior to trial.6
The initial stage of the procedure is the jury’s apportionment of damages
to each causative event, if the damages are divisible and thus can be
apportioned, as in this case.7
6
The jury should, of course, apportion damages only if it determines that the
plaintiff has proven by a preponderance of the evidence the liability of one or
more non-settling defendants. See, e.g., Model Jury Charges (Civil), 1.12(o),
“Damages” (approved Nov. 1998) (providing instructions “on the law
governing damages” for the jury to consider in the event that it “finds in favor
of plaintiff” on the liability issue).
7
Divisible damages “can occur in a variety of circumstances,” including “in
cases involving serial injuries, regardless of the length of time between the
injuries.” Third Restatement § 26 cmt. f. “Damages are indivisible, and thus
the injury is indivisible, when all legally culpable conduct of the plaintiff and
34
In the first step of that apportionment process, the non-settling defendant
alleged to be responsible for the second causative event may present proof of
the damages suffered by plaintiff as a result of the first causative event. See
Campione, 150 N.J. at 184; Third Restatement § 26. Among other evidence,
the defendant may rely on the plaintiff’s previous assertions in pleadings or
discovery about the alleged fault of the initial tortfeasor and the damages
resulting from the first causative event. A plaintiff who previously asserted in
pleadings or discovery that the initial tortfeasor was negligent may not take the
opposite position at trial. Cf. Bhagat v. Bhagat, 217 N.J. 22, 36 (2014) (“A
party who advances a position in earlier litigation that is accepted and permits
the party to prevail in that litigation is barred from advocating a contrary
position in subsequent litigation to the prejudice of the adverse party.”);
McCurrie v. Town of Kearny, 174 N.J. 523, 533 (2002) (holding that the
defendant municipality’s “about-face is a blatant violation of the principle of
judicial estoppel, which precludes a party from taking a position contrary to
the position he has already successfully espoused in the same or prior
litigation”). In such a setting, however, the plaintiff may urge the jury to
every tortious act of the defendants and other relevant persons caused all the
damages.” Id. at cmt. g.
35
apportion only a minor component of the damages -- or none at all -- to the
first causative event.
Next, the trial court should instruct the jury to quantify the damages
resulting from the first causative event. Campione, 150 N.J. at 184-85; Third
Restatement § 26(a). In a case such as this, in which the first causative event
alleged is Collum-Glassman’s accident at Juanito’s, the court should instruct
the jury to decide what amount of damages, if any, the plaintiff suffered as a
result of that accident. To prevent a double recovery, the damages that the
jury attributes to the first causative event -- here, the plaintiff’s accident at
Juanito’s -- should not be included in any judgment entered against the
Medical Defendants.
The trial court should not disclose to the jury the amount paid by the
initial tortfeasor to settle with the plaintiff; the settlement amount has no
bearing on the jury’s inquiry. See Jones, 230 N.J. at 162; Town of Kearny,
214 N.J. at 103-04; Young, 123 N.J. at 595-96. Nor should the trial court
charge the jury to assign a percentage of fault to any settling tortfeasor
involved in that initial causative event, or to make any other determination
regarding that event. The plaintiff’s settlement with the tortfeasors allegedly
responsible for that initial causative event obviates the need for any further
inquiry regarding that event.
36
The trial court should also instruct the jury to determine the amount of
damages that resulted from the second causative event. In this case, if the jury
determines that the plaintiff has proven his claim that one or more of the
Medical Defendants committed medical malpractice, it should be directed to
then decide what amount of damages, if any, the plaintiff suffered as a result
of that malpractice. The amount of damages that the jury attributes to the
second causative event -- the medical malpractice -- would constitute the total
damages awarded to plaintiff in the judgment to be entered by the trial court.
In the second stage of the apportionment process, the trial court should
instruct the jury to apportion fault among the non-settling defendants as joint
tortfeasors, in accordance with N.J.S.A. 2A:15-5.2(a). Campione, 150 N.J. at
184.8 In this case, if the jury were to conclude that plaintiff proved the
liability of one or more of the Medical Defendants for medical malpractice, the
jury would assign a percentage of fault to any such defendant, with the
percentages adding up to one hundred percent. N.J.S.A. 2A:15-5.2(a)(2). The
court would then mold the total judgment -- the amount of damages attributed
by the jury to the medical malpractice -- in accordance with the percentage of
fault allocated to each defendant. N.J.S.A. 2A:15-5.2(d).
8
In a case in which the non-settling defendants prove the plaintiff’s
contributory negligence in the second causative event, the jury would also
allocate a percentage of fault to the plaintiff pursuant to N.J.S.A. 2A:15-5.2.
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C.
We recognize that this two-stage apportionment process for successive
tortfeasors is more complex than the familiar procedure conducted in joint-
tortfeasor cases involving settling defendants. See Town of Kearny, 214 N.J.
at 100; Young, 123 N.J. at 596-97. In the unusual setting of a successive-
tortfeasor case, apportionment will require careful oversight by our skilled and
seasoned civil trial courts.
We share the Appellate Division’s view, however, that this process
furthers the Legislature’s intent when it enacted the Comparative Negligence
Act because it ensures that damages are allocated by the factfinder based on
the evidence presented at trial. Glassman, 465 N.J. Super. at 457. Depending
on the amount of the settlement and the jury’s determinations based on the
evidence, apportionment of damages may provide a strategic advantage to a
plaintiff, or it may operate to the non-settling defendants’ advantage. As the
Appellate Division observed, the process “is fair and wholly consonant with
the developments in our law since Ciluffo was decided.” Id. at 469.
V.
The judgment of the Appellate Division is affirmed as modified, and the
matter is remanded to the trial court for further proceedings in accordance with
this opinion.
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CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
PATTERSON’s opinion.
39