NJ Supreme Court Continues to Allocate Fault to Non-Monetarily Liable Co-Defendants

Over the past few decades, New Jersey appellate jurisprudence has continually affirmed that trial courts should permit the allocation of fault to co-defendants in negligence and strict liability actions, even if those co-defendants retain no monetary liability due to settlement, bankruptcy or statutory immunity. This article briefly outlines the seminal opinions issued by the New Jersey Supreme Court and the Superior Court of New Jersey, Appellate Division, which have increasingly permitted co-defendants to be included on the jury verdict sheet under the New Jersey Comparative Negligence Act (CNA) and the Joint Tortfeasors Contribution Law (JTCL).

The CNA, codified at N.J.S.A. §2A:15-5.1, et seq., mandates that the trier of fact determine two findings of fact in all negligence and strict liability actions: (1) the “full value of the injured party’s damages,” N.J.S.A. §2A:15-5.2(a)(1); and (2) the percentage of each party’s negligence, which, in sum, should add up to 100%, N.J.S.A. § 2A:15-5.2(a)(2). Once those percentages are properly determined, the trial 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). If, however, a defendant’s fault is determined to be 60% or more, the plaintiff may recover the full amount of the awarded damages from that defendant. N.J.S.A. §2A:15-5.3(a). This is key, because if, for example, a settling defendant is ultimately determined to be more than 40% liable in a negligence action, the plaintiff could be severely disadvantaged regarding his or her recovery options. The JTCL complements the CNA by providing culpable defendants contribution rights against other parties if those defendants are ultimately liable for more than their allotted percentage share of a damages award. N.J.S.A. §2A:53A-3. “When applied together, the [CNA and JTCL] implement New Jersey’s approach to fair apportionment of damages among plaintiffs and defendants, and among joint defendants.” Town of Kearny v. Brandt, 214 N.J. 76, 97 (2013) (quoting Erny v. Estate of Merola, 171 N.J. 86, 99 (2002)).