NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4042-19T3
TODD B. GLASSMAN, as
Executor of the Estate of
JENNIFER K. COLLUM-
GLASSMAN, deceased, APPROVED FOR PUBLICATION
December 3, 2020
Plaintiff-Appellant, APPELLATE DIVISION
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-Respondents,
and
JUANITO'S INC. and KLE
PROPERTIES, LLC,
Defendants.
________________________________
Argued September 21, 2020 – Decided December 3, 2020
Before Judges Messano, Suter and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
2383-18.
Christina Vassiliou Harvey argued the cause for
appellant (Lomurro, Munson, Comer, Brown &
Schottland, LLC, attorneys; Jonathan H. Lomurro, of
counsel; Christina Vassiliou Harvey, of counsel and
on the brief; Alan J. Weinberg, on the brief).
Jeffrey J. Niesz argued the cause for respondent
Steven Friedel, M.D. (Orlovsky, Moody, Schaaff,
Conlon & Gabrysiak, attorneys; Paul F. Schaaff, Jr.,
of counsel; Jeffrey J. Niesz, on the brief).
Matthew J. Heagen argued the cause for respondent
Charles W. Farrell, M.D. (Grossman, Heavy & Halpin,
PC, attorneys; Matthew J. Heagen, on the brief).
Charles C. Koernig argued the cause for respondent
Lon Weiner, M.D. (Kaufman Borgeest & Ryan,
attorneys; Charles C. Koernig and Jennifer C. Willis,
on the brief).
Anthony M. Tracy argued the cause for respondents
HMH Hospitals, Corp. d/b/a Riverview Medical
Center, Natasha Field, R.N., and Tanya Gooden, R.N.
(Ronan, Tuzzio & Giannone, attorneys; Anthony M.
Tracy, of counsel and on the brief).
Michael R. Ricciardulli argued the cause for
respondent Anuradha Thalasila, M.D. (Ruprecht Hart
Ricciardulli & Sherman, LLP, attorneys; Michael R.
Ricciardulli, of counsel and on the brief; Jessica J.
Mahony, on the brief).
Herbert Kruttschnitt, III argued the cause for
respondent Constance Mackay, R.N. (Dughi, Hewit &
Domalewski, PC, attorneys; Herbert Kruttschnitt, III,
A-4042-19T3
2
of counsel and on the brief; Ryan A. Notarangelo, on
the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
In Ciluffo v. Middlesex General Hospital, we adopted a framework for
trial courts to follow in addressing the thorny issues posed when a plaintiff
settles a negligence claim with the original tortfeasor and proceeds to trial
against a medical professional whose subsequent negligent treatment results in
additional injuries and damages. 146 N.J. Super. 476 (App. Div. 1977). In
Ciluffo, the plaintiff injured her neck when she fell down a flight of stairs at a
friend's house. Id. at 479. After examining the plaintiff the next afternoon at
the hospital, the defendant-doctor released her home with a cervical collar and
medication for pain. Ibid. Further review by another doctor of the x-rays
taken at the hospital revealed a fracture of the plaintiff's cervical spine. Ibid.
Treatment of the fracture led to further complications, including the need for
cervical traction, and the onset of blood poisoning and pneumonia. Ibid.
The plaintiff settled her claim with the owner of the premises where she
fell for $30,000. Id. at 480. Based on the evidence, the trial judge determined
that plaintiff failed to prove any complications were causally related to the
delayed treatment of the fracture. Ibid. He also "dismissed [the] plaintiff's
A-4042-19T3
3
claim for added pain and suffering for the period between her release from the
emergency room and the time she reported back to the hospital for further
treatment," concluding "in effect, that the claim for pain and suffering during
the period of less than [twenty-four] hours during which treatment was delayed
would not support a verdict in excess of the $30,000 already paid to plaintiff "
by settlement with the premises owner. Id. at 480–81.
We observed that "[w]hen a plaintiff settles with the first of successive
independent tortfeasors we usually do not know whether that settlement
constituted payment in full for all claims." Id. at 482 (emphasis added). The
initial tortfeasor — the owner of the premises — was "potentially liable for all
the natural and proximate injuries that flow from the initial tort, including the
consequences of medical treatment . . . caused by his wrong." Ibid. (citing
Knutsen v. Brown, 96 N.J. Super. 229, 235 (App. Div. 1967)). However, we
noted that "questions of liability may make [the] plaintiff's recovery from
either tortfeasor uncertain[,]" and "[t]he degree of injury caused by the second
tortfeasor adds another variable." Ibid.
In reversing and remanding for a new trial on liability and damages as to
the doctor, we held that "where [the] plaintiff has settled with the first
tortfeasor and claims that she was not paid for all of her injuries, she is entitled
to have the injuries caused by the successive independent tortfeasor assessed
A-4042-19T3
4
and compared with the damages recoverable for all of her injuries ." Ibid.
(emphasis added). In other words, the plaintiff was entitled to have a
factfinder apportion the damages caused by the two events, i.e., her fall and the
delay in treatment.
Our decision then set forth what is the crux of this appeal. We held that
if the plaintiff succeeded in proving the doctor's negligence and damages
caused by the delay in treatment at a new trial, the defendant-doctor was
entitled potentially to a pro tanto credit 1 against any award based on the
plaintiff's prior settlement with the owner of the premises.
If the settlement exceeds plaintiff's total provable
damages she would be entitled to no further recovery
from [the doctor]. If the settlement exceeds the
amount of her provable damages minus the damages
caused by [the doctor], the amount of such excess
should be credited against the damages assessed solely
for the harm caused by [the doctor]. If the settlement
is less than the amount of her total provable damages
minus the damages caused solely by [the doctor],
plaintiff should recover the full amount of damages
assessed against [the doctor] alone for the pain and
suffering allegedly endured by her during the delay in
treatment within the first [twenty-four] hours.
1
"Pro tanto" is defined as "[t]o that extent; for so much[.]" Black's Law
Dictionary 1478 (11th ed. 2019). 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)
(Restatement (Third)).
A-4042-19T3
5
[Id. at 482–83 (citations omitted).]
We explained the rationale for awarding a full pro tanto settlement credit to the
defendant-doctor if the plaintiff's settlement exceeded the amount of her total
"provable damages" as determined by the jury, or a partial credit if the
settlement exceeded the difference between the total amount of damages, and
the amount the jury apportioned to the medical negligence:
[N]either tortfeasor in this case has an interest in the
claim [the] plaintiff has asserted against the other
except that, as here, where two parties commit
successive independent torts, one may receive credit
for part of the payment made earlier by the other
tortfeasor "to avoid duplicating compensation to the
plaintiff."
[Id. at 483 (quoting Daily v. Somberg, 28 N.J. 372,
381–86 (1958)) (emphasis added).]
Our decision in Ciluffo did not address the continued viability of a
settlement credit after enactment of the Comparative Negligence Act (CNA),
N.J.S.A. 2A:15–5.1 to -5.8.2 However, since passage of the CNA, the
framework we devised in Ciluffo for potentially awarding the non-settling
tortfeasor a pro tanto credit based upon the plaintiff's settlement with the
original tortfeasor has been accepted, albeit without significant analysis, by
2
The CNA became effective on August 22, 1973, see L. 1973, c. 146, while
the events in Ciluffo occurred during April 1972. Id. at 479–80.
A-4042-19T3
6
other reported cases. See, e.g., Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super.
108, 119 (App. Div. 2006) ("Ciluffo can be applied in situations, like the
instant matter, where plaintiff is first subjected to a tort that brings him to a
hospital where medical care providers then subject plaintiff to a second,
independent tort."); Mitchell v. Procini, PA, 331 N.J. Super. 445, 456 (App.
Div. 2000) ("[T]o avoid duplicating compensation paid to a plaintiff, the
successive tortfeasor may receive a credit for part or all of the payment made
by the initial tortfeasor." (citing Ciluffo, 146 N.J. Super. at 483)).
None of these cases, however, discussed the continued viability, after
enactment of the CNA, of awarding an adjudicated tortfeasor a pro tanto
settlement credit absent any finding that the initial tortfeasor was culpably
negligent. And, although the Court has cited Ciluffo with approval in other
contexts, see Williamson v. Waldman, 150 N.J. 232, 252 (1997); Evers v.
Dollinger, 95 N.J. 399, 411 (1984); Lynch v. Rubacky, 85 N.J. 65, 80 n.3
(1981) (Clifford & Schreiber, JJ., dissenting), it has never endorsed application
of a pro tanto credit to a successive tortfeasor based on a plaintiff's settlement
with an initial tortfeasor.
Here, plaintiff Todd Glassman, as executor of the estate of his deceased
wife, Jennifer K. Collum-Glassman, sued defendants Juanito's Inc. and KLE
Properties, LLC (collectively, Juanito's), the restaurant and property owner of
A-4042-19T3
7
the site where Jennifer fell and fractured her left ankle. 3 Jennifer received
medical treatment for the injury, ultimately "coming under the care" of
defendants Hackensack Meridian Health, d/b/a Riverview Medical Center,
Doctors Steven P. Friedel, Lon Weiner, Charles W. Farrell, Anuradha
Thalasila, and Registered Nurses Natacha Field, Tanya Gooden, and Constance
MacKay (collectively, the Medical Defendants).
In an amended complaint that added the Medical Defendants, plaintiff
alleged their negligence during surgery performed on Jennifer's left ankle five
days after the fall led to post-operative complications and injuries to her right
leg, including weakness, "impaired sensory motor function[,]" "[p]ost-
operative compressive neuropathy," "foot drop," and "[c]ompression of the
distal aspect of the right sciatic nerve and peroneal nerve with sensory
impairment[.]"4
Approximately one month after surgery, and one day before her forty -
sixth birthday, Jennifer died from a pulmonary embolism. At the time of her
death, Jennifer was a special education teacher at a local high school and the
3
To avoid confusion, we use the first name of plaintiff's decedent. We intend
no disrespect by this informality.
4
The record before us is scant. We refer, therefore, to the allegations
contained in plaintiff's complaint. We are advised discovery continues.
A-4042-19T3
8
mother of two teenage sons. Plaintiff contends the Medical Defendants'
negligent treatment resulted in injury to Jennifer's right leg, increasing her
immobility as a result, and that they failed to provide appropriate
"anticoagulation" medications, resulting in the fatal embolism.
Plaintiff settled with Juanito's for $1.15 million. Citing our holding in
Ciluffo, the Medical Defendants filed motions seeking a declaration that they
would be entitled to a pro tanto credit against any potential damage award
based on the formula we explained in that case. Plaintiff opposed the motion
and requested oral argument; however, the judge decided the motions on the
papers, granting the relief. Plaintiff moved for reconsideration, which, after
hearing oral argument, the judge denied.
We granted plaintiff leave to appeal. He argues the judge erred by
deciding a factual issue — whether Juanito's was negligent — which must be
reserved for the jury. In other words, plaintiff contends it was error to grant
the Medical Defendants the possibility of any credit based on the settlement
with Juanito's without proof of Juanito's fault. Additionally, plaintiff argues
that, even assuming Juanito's fault was established, the CNA applies equally to
joint and successive tortfeasors, replaces Ciluffo's formulation and eliminates
the possibility of a pro tanto credit based on the settlement with Juanito's.
A-4042-19T3
9
The Medical Defendants contend that the CNA only applies to joint
tortfeasors, not successive tortfeasors, each of whom, if found negligent, are
only responsible for damages proximately caused by their negligence, and not
damages occasioned by the negligence of the original tortfeasor. Therefore,
the Medical Defendants argue that the potential pro tanto settlement credit
envisioned by Ciluffo's framework must apply to avoid a duplication of
damages and a potential windfall recovery by plaintiff.
Although we find neither set of arguments wholly satisfying, 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.
I.
All parties concede this suit involves allegations of negligence by
successive, and not joint, tortfeasors. The essence of the Medical Defendants'
argument is that this distinction compels different results regarding the effect
of plaintiff's settlement with Juanito's on any award of damages proximately
caused by their medical negligence. The contention requires us first to discuss
joint versus successive tort liability, and how those two statuses impact an
award of damages.
A-4042-19T3
10
A.
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." Cherry Hill Manor Assocs. v. Faugno, 182
N.J. 64, 75 (2004) (quoting N.J.S.A. 2A:53A-1) (emphasis added). The Joint
Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, "was enacted
to change the injustice of the common law, which 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); see also Town of Kearny v. Brandt, 214 N.J. 76, 97 (2013)
(noting the JTCL "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" (quoting Holloway v. State, 125 N.J. 386, 400–01
(1991))). Once enacted, the JTCL apportioned any damage award on a pro rata
basis among adjudicated tortfeasors. See Blazovic v. Andrich, 124 N.J. 90,
103 (1991) (noting that under the JTCL, "[a] court determined a tortfeasor's
pro rata share simply by dividing the total verdict by the number of available
tortfeasors, that is, those solvent tortfeasors not beyond the reach of process").
A-4042-19T3
11
However, enactment of the CNA two decades later, working in
conjunction with the JTCL, significantly altered the respective rights of joint
tortfeasors. See Kranz v. Schuss, 447 N.J. Super. 168, 170–71 (App. Div.
2016) (explaining relationship between the two statutes). "[W]hen applied
together, the [CNA and JTCL] implement New Jersey's approach to fair
apportionment of damages among plaintiffs and defendants, and among joint
defendants." Brandt, 214 N.J. at 97 (quoting Erny v. Estate of Merola, 171
N.J. 86, 99 (2002)). The CNA forged the critical link between a joint
tortfeasor's relative fault and its share of damages. See Johnson v. Am.
Homestead Mortg. Corp., 306 N.J. Super. 429, 436 (App. Div. 1997) ("[T]he
effect of the [CNA] 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).
A-4042-19T3
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In tandem, the two statutes also altered the effect of a plaintiff's
settlement with one tortfeasor on his or her claim against any remaining joint
tortfeasors and the non-settling defendant's right to contribution. Pursuant to
the JTCL:
[A] settling tortfeasor . . . ha[d] 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 —
represent[ed] the judicial implementation of the
statutory right to contribution.
[Young v. Latta, 123 N.J. 584, 591 (1991) (emphasis
added).]
"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]."
Id. at 592 (citing Cartel Cap. Corp. v. Fireco of N.J., 81 N.J. 548, 569–70
(1980); Rogers v. Spady, 147 N.J. Super. 274, 277 (App. Div. 1977)).
"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." Ibid.
(citing Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518 (Law Div.
1984)). As Judge Pressler explained:
A-4042-19T3
13
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.
....
[U]nless 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.
[Johnson, 306 N.J. Super. at 436–37 (emphasis
added).]
The CNA therefore significantly altered the landscape that existed after
enactment of the JTCL "as construed by Theobald v. Angelos, 44 N.J. 228
(1965) [Theobald II],5 under which the non-settling defendants were entitled to
a pro tanto credit for the proceeds of the settlement made by plaintiff with the
settling defendant whose liability was never adjudicated." Id. at 436–37; see
also Tefft v. Tefft, 192 N.J. Super. 561, 568 (App. Div. 1983) (noting that the
Theobald II "pro tanto deduction . . . if the settling party is not found to be
5
We discuss both cases in greater detail below.
A-4042-19T3
14
negligent" was "changed with the introduction and interpretation of the
[CNA]" (citing Rogers, 147 N.J. Super. at 277)).
The Medical Defendants do not dispute these basic principles but rather
contend they are inapplicable to situations involving successive tortfeasors. In
other words, despite the CNA's elimination of pro rata and pro tanto credits
among joint tortfeasors in personal injury negligence actions, and replacement
with a credit based solely upon a settling joint tortfeasor's adjudicated
percentage of fault, the Medical Defendant's argue that Ciluffo's calculus still
applies to successive tortfeasors, even if the settling tortfeasor's culpable
negligence was never adjudicated. The Medical Defendants assert a single
reason for the continued vitality of the Ciluffo pro tanto credit, namely,
without it, a plaintiff who settles with the initial tortfeasor might receive a
windfall at trial.
B.
We acknowledge the differences between joint and successive
tortfeasors. In the case of successive tortfeasors, the common law rejected any
notion of joint and several liability and long provided that the first 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." New Milford Bd. of Educ. v. Juliano, 219 N.J.
A-4042-19T3
15
Super. 182, 187 (App. Div. 1987) (citing Ciluffo, 146 N.J. Super. at 482;
Knutsen, 96 N.J. Super. at 235); accord Williamson, 150 N.J. at 252
("Traditionally, our courts have held that an initial tortfeasor is liable for the
results of the medical treatment of an injured victim." (citing Ciluffo, 146 N.J.
Super. at 482; Knutsen, 96 N.J. Super. at 235)); Doe v. Arts, 360 N.J. Super.
492, 510 (App. Div. 2003) (citing Williamson). See also Restatement
(Second) of Torts § 457 (Am. Law Inst. 1965) (Restatement (Second)) ("If the
negligent actor is liable for another's bodily injury, he is also subject to
liability for any additional . . . harm resulting from normal efforts of third
persons in rendering aid . . . irrespective of whether such acts are done in a
proper or a negligent manner."); Prosser & Keeton on Torts § 44, at 309 (5th
ed. 1984) (collecting cases holding "the defendant liable for the results of
medical treatment of the injured victim[, e]ven where such treatment is itself
negligent").
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 Juliano, after settling the claim of
an injured student, the plaintiffs, a town and its school board, sought
indemnification from non-party doctors who they alleged negligently treated
A-4042-19T3
16
the student, causing amputation of three of her toes. 219 N.J. Super. at 184.
As Judge Skillman characterized the plaintiffs' claim against the doctors:
Plaintiffs do not seek to escape responsibility for their
tortious conduct by holding defendant doctors liable
for all damages incurred by [the student]. Rather,
plaintiffs' claim is limited to the difference between
what [the student's] damages would have been if
defendants had not committed malpractice and the full
amount of damages which she suffered as a result of
both the original accident and the subsequent
malpractice.
[Id. at 186–87 (emphasis added).]
In recognizing the initial tortfeasor's right to seek indemnification, we noted:
the responsibility of an initial tortfeasor for the
additional harm caused by subsequent medical
malpractice is less immediate and less direct than the
responsibility of the party or parties who have actually
committed the malpractice. Indeed, the initial
tortfeasor's responsibility for that additional harm can
be viewed as a form of constructive or secondary
liability.
[Id. at 187.]
Accordingly, we held that "justice require[d] recognition" of the initial
tortfeasor's right to seek indemnification from the successive tortfeasor. Ibid.
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. Ciluffo, 146
N.J. Super. at 483. However, each clearly has an interest in paying no more
A-4042-19T3
17
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.
In Lewis v. Preschel, the plaintiffs obtained a liability verdict for
malpractice committed in the medical treatment of a broken arm, the result of
an automobile accident. 6 237 N.J. Super. 418, 420 (App. Div. 1989).
Following a damages only trial and judgment in favor of the plaintiffs for over
$800,000, we agreed with the defendant-doctor's argument that "the trial judge
prejudicially restricted [him] . . . from presenting evidence which would have
addressed the extent to which the malpractice, as distinct from the accident -
caused initial injury, contributed to the damages proved[.]" Id. at 420–21. We
reversed and remanded for a new trial on damages, because the jury was not
instructed on the issue of "how much of the damages award was attributable
to . . . malpractice, as distinguished from those damages which would have
arisen even if the reduction and related treatment had not been negligently
performed." Id. at 422–23.
6
Our decision fails to indicate if the car accident was the result of any
negligence or the subject of prior litigation. Therefore, strictly speaking, there
may not have been successive tortfeasors, although there were clearly
successive events that caused the plaintiff's total quantum of injuries and
damages.
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C.
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. See Restatement (Second) §
433A cmts. b, c (discussing limit on successor tortfeasor's liability when there
are "[d]istinct harms" or "[s]uccessive injuries"). 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.
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. See
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19
N.J.S.A. 2A:15-5.3(e) ("Any party who is compelled to pay more than his
percentage share may seek contribution from the other joint tortfeasors.");
N.J.S.A. 2A:15-5.8 (noting that when a "social host . . . is determined to be a
joint tort-feasor, the social host or other party shall be responsible for no more
than th[eir] percentage share of the damages . . . equal to the[ir] percentage of
negligence").
The Court has acknowledged the relevance of the CNA's principles to
situations involving successive tortfeasors. In Campione v. Soden, the
plaintiff was a passenger in a car rear-ended by one driven by the defendant
Jensen. 150 N.J. 163, 168 (1997). While the plaintiff was outside the car
inspecting the damage, a second car rear-ended Jensen's car, crushing the
plaintiff's legs and launching him into the air. Ibid.
Although the cause of [the plaintiff's] leg injuries was
undisputed, the source of his back, neck, periodontal,
and psychological injuries was vigorously contested.
Jensen[] argued that all of those injuries were caused
by the second impact, while [the plaintiff] contended
that the injuries could not be apportioned between the
two accidents.
[Id. at 170.]
While the trial court submitted special interrogatories to the jury, "[t] he
verdict form failed to inquire about the percentage of fault attributable to the
negligence of Jensen[] as a proximate cause of the second impact.
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20
Additionally, the form did not adequately inform the jury of its responsibility
to attempt to allocate all damages between the two accidents." Id. at 171
(emphasis added). The Court in Campione cited with approval Loui v. Oakley,
438 P.2d 393, 396–97 (Haw. 1968), for the proposition that a jury should
determine "how much of the plaintiff's damages are attributable to each
defendant's negligence[,]" and, if it "is unable to do so precisely, it may make
a 'rough apportionment.'" Id. at 176. Importantly for our purposes, the Court
said:
Although the [CNA] does not specifically address the
jury's responsibility in cases involving injuries
sustained in successive accidents, we infer 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.
[Id. at 184 (emphasis added); see also Kiss v. Jacob,
138 N.J. 278, 284 (1994) (applying "the principles of
comparative negligence" derived from the CNA to the
jury award of causative fault and damages in a chain
reaction collision).]
Our jurisprudence generally favors apportionment of damages.
Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005). See also
Restatement (Second) § 433A (1) ("Damages for harm are to be apportioned
among two or more causes where (a) there are distinct harms . . . ."). The Court in
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21
Campione explained the principles the trial court should employ in
apportioning damages for two different "causative events":
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.
[150 N.J. at 184–85 (internal citations omitted).]
D.
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. See, e.g., Shatz v. TEC Tech. Adhesives, 174 N.J. Super. 135, 145
(App. Div. 1980) ("We see no reason why a settlement should reverse the
ordinary rule that a person is not presumed to be culpable.") (citing Dziedzic v.
St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161 (1969)). As
already noted, the CNA essentially codified this principle because after its
enactment, a non-settling defendant was not entitled to any reduction in its
A-4042-19T3
22
share of a plaintiff's total damages unless it proved the settling defendant's
liability. See Green v. Gen. Motors Corp., 310 N.J. Super. 507, 545–47 (App.
Div. 1998) (holding that the non-settling defendant, "by failing to have the jury
assess the [settling defendant's] percentage of fault," was not entitled to credit
for settlement monies paid); Johnson, 306 N.J. Super. at 437 (holding that
"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"); Mort v. Besser Co.,
287 N.J. Super. 423, 431–32 (App. Div. 1996) (noting that a non-settling
defendant could shift a portion of liability to a settling defendant, but "that
liability must be proven"); Young v. Latta, 233 N.J. Super. 520, 526 (App.
Div. 1989) ("[I]f no issue of fact is properly presented as to the liability of the
settling defendant, the fact finder cannot be asked, under N.J.S.A. 2A:15-5.2 or
otherwise, to assess any proportionate liability against the settler."), aff'd, 123
N.J. 584 (1991).
However, the distinction between joint and successive tortfeasors
compels us to reject plaintiff's blanket assertion that the CNA requires an
adjudication of Juanito's fault before the appropriate quantum of damages
could be determined if any Medical Defendant were found to be liable. Under
principles of comparative responsibility embodied by the CNA, a successive
A-4042-19T3
23
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.
Campione, 150 N.J. at 184; see Schwarze v. Mulrooney, 291 N.J. Super. 530,
541 (App. Div. 1996) (collecting cases where, in various factual contexts, the
burden of apportioning damages has been placed upon the defendant). The
successive tortfeasor may seek apportionment of damages even if the initial
tortfeasor is not adjudicated culpably negligent. Lewis, 237 N.J. Super. at 422–
23.
Depending on the facts of the case, when successive torts are involved
and one tortfeasor has settled before trial, issues of comparative fault may
indeed become less significant. 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. The Medical
Defendants would unlikely be concerned about the jury's assessment of
comparative fault for the fall, because even if the jury concluded Jennifer was
not entitled to any recovery from Juanito's based on findings of compara tive
fault, her claim against the Medical Defendants would continue, and, if
A-4042-19T3
24
successful, the jury would then assess the amount of damages proximately
caused by their negligence.
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
A-4042-19T3
25
obliged to pay for injuries they did not proximately cause. The relative fault
of the party causing the initial injuries is irrelevant.
There certainly may be other scenarios where a non-settling defendant
chooses to adduce proof of the settling initial tortfeasor's negligence. This
may occur in cases where the non-settling defendant proves that the settling
tortfeasor was negligent and its negligence was a proximate cause of the
second "causative event." See, e.g., Campione, 150 N.J. at 170–71 (noting
dispute as to which event caused which set of damages and the failure of the
trial court's interrogatories to ask the jury to determine whether initial
tortfeasor was a proximate cause of the second collision); see also Mahoney &
Forte, New Jersey Personal Injury Recovery § 15:1-1 (2020) (noting possibility
that "the party who caused the original accident would be a proximate cause of
both the initial pain and suffering and the subsequent malpractice" (citing Juliano,
219 N.J. Super. at 187; Ciluffo, 146 N.J. Super. at 482)).
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. The Court envisioned this two-step scenario in
Campione, 150 N.J. at 184; see also Mahoney & Forte, § 15:1-1 (discussing this
"two-step process" "when separate elements of damages are attributable to
different, but related, events").
A-4042-19T3
26
This two-step process has now been adopted by the most recent
Restatement, which provides:
(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 . . . .
(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
fact-finder 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.
[Restatement (Third) § 26.]7
"This process effectuates the basic policies of causation and comparative
responsibility[, and] . . . does not make a . . . defendant responsible for
damages that person did not cause . . . ." Id. at cmt. d. As the Restatement
7
We limit our discussion and application of this section of the Restatement
(Third) to factual circumstances where, as a matter of law, the jury is capable
of apportioning the amount of total damages between each causative event.
Campione, 150 N.J. at 484. The Restatement (Third) provides examples of
"[e]mploying the two-step process" in various fact patterns. Id. at cmt. c.
A-4042-19T3
27
(Third) has noted, "[c]ommentators [have] generally favor[ed] all or part of the
Loui-Campione approach." Id. at notes to cmt. h (citations omitted).
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 non-
settling 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. Young, 123 N.J. at 597.
We now consider the continued vitality of the Ciluffo pro tanto settlement
credit.
II.
The sole justification for a pro tanto credit provided by Ciluffo was to
eliminate a windfall recovery through a duplication of damage awards to the
plaintiff. 146 N.J. Super. at 483. We consider the continued vitality of this
rationale against the backdrop of what is a well-recognized phenomenon,
A-4042-19T3
28
namely the "dramatic impact" of "the nearly universal adoption of comparative
responsibility by American courts and legislatures[.]" Restatement (Third) § 1
cmt. a.
A.
As some commentators have noted, prior to the passage of the JTCL and
the CNA two decades later, New Jersey embraced "what might be termed an
'absolute morality' common law tort recovery system," whereby "a tort
plaintiff needed to be absolutely blameless as a prerequisite to recovery ."
Mahoney & Forte, §1:1-1, p. 2; see also Renz v. Penn Cent. Corp., 87 N.J. 437,
450–57 (1981) (detailing history of common law of contributory negligence in
New Jersey to 1973, and noting that "issues relating to liability in the personal
injury tort field . . . must now be developed and applied in a manner consistent
with the new doctrine, . . . [the CNA]"). "'[A]ny fault kept a claimant from
recovering under the system,' whether that claimant was a plaintiff seeking
compensation from a defendant or one joint tortfeasor looking for contribution
from another." Dunn v. Praiss, 139 N.J. 564, 575 (1995) (quoting Ostrowski v.
Azzara, 111 N.J. 429, 436 (1988)).
A common law corollary was the rule that a plaintiff's release of one
joint tortfeasor automatically operated as a release of all who may have caused
the injury, regardless of the intention of the parties or the sufficiency of the
A-4042-19T3
29
plaintiff's recovery. The original rationale for this doctrine was that "the cause
of action[,] which is one and indivisible, having been released, all persons
otherwise liable thereto are consequently released." Adolph Gottscho, Inc. v.
Am. Marking Corp., 18 N.J. 467, 470 (1955) (quoting Salmond, Torts (11th
ed. 1953), 90). Our courts applied this "automatic release" doctrine not only to
joint tortfeasors, but also to successive tortfeasors in situations similar to the
facts in this case. See Knutsen v. Brown, 93 N.J. Super. 522, 536 (Law. Div.
1966) (noting that "[t]he majority of early American cases . . . held that where
plaintiff had released the original tortfeasor, he was barred from an action for
malpractice against treating physicians"), aff'd, 96 N.J. Super. 229 (App. Div.
1967); Adams v. De Yoe, 11 N.J. Misc. 319, 320 (Sup. Ct. 1933) (applying
doctrine to bar the plaintiff's claim against doctor who treated broken arm
suffered in accident when party allegedly causing accident was released by
settlement). "The one-settlement-releases-all rule may [have] be[en] the most
widely and harshly criticized legal rule of all time." Restatement (Third) § 24
notes to cmt. b.
Changes developed. First, in Brandstein v. Ironbound Transp. Co., 112
N.J.L. 585 (E. & A. 1934), the court reasoned that when the plaintiff settled
with one tortfeasor and executed a covenant not to sue instead of a release,
A-4042-19T3
30
granting a pro tanto credit to a non-settling tortfeasor did not violate the
common law prohibition on contribution. The court explained:
It is urged that, inasmuch as there can be no division
of responsibility and no enforced contribution as
between joint tort-feasors, there can be no application
of payments by one or more tortfeasors in diminution
of the amount recoverable by suit from another joint
tort-feasor. Such argument overlooks entirely the
fundamental rule that a person damaged can receive
but one satisfaction for his injury. If he has received
from one joint wrongdoer satisfaction and executed a
release, it is taken to be full satisfaction and releases
all jointly liable for the injury. A covenant not to sue
one joint tort-feasor does not release other joint tort-
feasors. If less than full satisfaction has been received
for a covenant not to sue, reason, as well as authority,
require that an injured person recover from other joint
tort-feasors who are liable for his damage, but that his
recovery from all the persons charged with
responsibility for his injury be limited to the amount
of his damage. Justice and fair dealing commend such
rule.
[Id. at 593.]
In Daily, the Court observed that it was "modern and eminently just" to
modify the common law "automatic release" doctrine with respect to
successive torts. 28 N.J. at 383. 8 In Daily, the plaintiff filed suit in New York
8
The Court decided Breen v. Peck, 28 N.J. 351 (1958), the same day it
decided Daily. In Breen, the Court modified the absolute release doctrine as
applied to joint tortfeasors, holding "our State no longer recognizes the English
A-4042-19T3
31
against the owner and driver of a truck (the accident defendants) responsible
for injuries he suffered in a motor vehicle accident in Ohio. Id. at 375. He
filed a suit in New Jersey against the doctors who provided him with
subsequent medical care for his injuries. Id. at 375–76. The plaintiff settled
his claim with the accident defendants and executed a formal release. Id. at
376.
Construing Ohio law, the trial judge granted the doctors' motion for
summary judgment, concluding that the release barred the plaintiff's recovery,
since his complaint alleged only an aggravation of the injuries caused by the
accident, and the plaintiff could have recovered the full amount of damages
from the accident defendants. Id. at 378–79. However, applying New Jersey
law, the Court, rejected the automatic release rationale of Adams, and held:
Where . . . the court is concerned not with a joint tort
but with successive independent torts, it is even more
evident that the release of the original tortfeasor may
not rationally be given the effect of automatically
releasing the successive tortfeasor who, though he has
made no payment whatever towards satisfaction of the
injury he wrongfully inflicted, seeks a windfall
because of the compromise of the claim against the
original tortfeasor.
(continued)
common-law rule which, in absolute terms, released all joint tortfeasors upon
the release of one." Id. at 364.
A-4042-19T3
32
[Id. at 383–84 (citations omitted).]
The Court concluded that the release did not bar the plaintiff's medical
malpractice claim unless it "was actually intended to release the doctors, or . . .
the amount paid by [the accident defendants] actually constituted full
compensation for the plaintiff's claims against [the accident defendants] and
the doctors or was accepted as such," in which case "the plaintiff may not
fairly or equitably seek further recovery." Id. at 384.
While both Breen and Daily abrogated the automatic release rule, both
assumed that a pro tanto credit would apply to reduce any damage award
against the unreleased, non-settling defendants at trial. See Breen, 28 N.J. at
365–66 (noting in joint tortfeasor context that the defendant "would in any
event receive a benefit from the partial payment of his co-wrongdoer[,] for it
would ultimately be allowed as a credit on the claim against him"); Daily, 28
N.J. at 386 (noting in successive tortfeasor context that, if the plaintiff
received "partial compensation" from the settling defendant for injuries
attributed to the doctors, "the amount of the partial compensation will be
credited against any sum otherwise recoverable by the plaintiff; in no event
will there be duplicating compensation to the plaintiff or duplicating liability
on the part of the defendants").
A-4042-19T3
33
The Court's opinions in Theobold v. Angelos, 40 N.J. 295 (1963)
(Theobold I), and Theobold II, 44 N.J. 228, significantly changed the
settlement-credit landscape for joint tortfeasors. 9 In that case, one defendant
settled prior to trial for $1500 ($1500 settler) and another settled for $88,500
($88,500 settler), for a total settlement of $90,000. Theobold I, 40 N.J. at
298–99. The jury had answered written interrogatories "calling for a specific
finding" as to the negligence of the two settling defendants and "whether such
negligence was a 'concurring and proximate cause of' plaintiffs' injuries." Id.
at 299. The jury found that the $88,500 settler was negligent, the $1500 settler
was not, the trial defendant was negligent, and the plaintiff's total damages
were $65,000. Ibid. Thus, under the terms of the JTCL and prior to passage of
the CNA, the $88,500 settler and the trial defendant were joint tortfeasors, but
the $1500 settler was not a tortfeasor at all; therefore, the trial judge divided
the verdict equally between the $88,500 settler and the trial defendant. Id. at
300. He then deemed one half of the judgment satisfied by the $88,500
settlement, deducted the $1500 settlement from the remaining $32,500 award
and entered judgment against the trial defendant for $31,000. Ibid.
9
The plaintiff's name is spelled differently in both cases. From here on in, we
adopt the spelling used in the first case.
A-4042-19T3
34
The Court in Theobold I noted that adoption of the JTCL "did not
change the fundamental doctrine that an injured person is entitled to receive
full and fair compensation but once, regardless of the number of wrongdoers
who participated in inflicting the damage." Id. at 302. However, application
of the statute "in certain situations where a plaintiff has made a partial
settlement with less than all of the alleged tort-feasors without trial of his case,
may result in actual receipt of a lesser sum than that fixed by a jury as
representing full compensation." Ibid. (emphasis added). The Court then
posed a series of hypothetical outcomes from "[t]he other side of the coin,"
i.e., where the plaintiff settled for a greater sum than awarded by the jury at
trial. Id. at 302–03. Without resolving the issue, the Court reversed based on
the judge's jury instructions, id. at 305–07, and remanded for a new trial as to
damages only, leaving the issue of "the propriety of the allocation of the
verdict among the various alleged tort[-]feasors" for the future. Id. at 308.
At the second trial, the jury awarded the plaintiff $165,000 in total
damages. Theobold II, 44 N.J. at 231. The judge split the verdict equally on a
pro rata basis between the $88,500 settler and the trial defendant, applied a
$1500 pro tanto credit, and entered judgment against the trial defendant for
$81,000. Id. at 231–32. Before the Court, the trial defendant argued that
either: (1) the total damages should be split pro rata between all three
A-4042-19T3
35
defendants, leaving one $55,000 share left to be paid: or, (2), if a three-way
pro rata split was not allowed, the trial defendant should receive a pro tanto
credit of $90,000, i.e., all the settlement monies the plaintiff had received,
leaving a judgment of $75,000, not $81,000, against it. Ibid.
The Court rejected both alternatives. As to the $1500 settler, the Court
found no basis to consider him responsible for a pro rata share of the plaintiff's
damages. Id. at 234–35. The Court noted that the JTCL "calls for an
adjustment only if the payor was a party to the wrong[,]" and it "does not
direct that credit be given if there is a settlement with one who is not in fact a
tortfeasor." Id. at 235 (emphasis added). Although the plaintiff did not
challenge on appeal the award of a pro tanto credit to the trial defendant for
the monies paid by the $1500 settler who was adjudicated not negligent at
trial, id. at 232, the Court in dicta cited Brandstein and approved application of
the pro tanto credit to the trial defendant's share. Id. at 236.
However, "invok[ing] the rule that there may be but one satisfaction of a
wrong[,]" the trial defendant argued that holding him responsible for $81,000
in damages resulted in a windfall to the plaintiff, who would receive a total of
$171,000 in damages ($1500 + $88,500 + $81,000), even though the jury
awarded only $165,000. Id. at 239. Justice Weintraub wrote:
A-4042-19T3
36
The one-satisfaction rule is equitable in nature
and was designed to prevent unjust enrichment. . . .
[I]t probably came into being at a time when courts of
law could not achieve contribution among co-obligors.
While the rule remains useful as an instrument for a
just result, the question is whether it should be
invoked in a situation in which [the JTCL] applies.
Defendant's just liability under [JTCL], based
on the equitable doctrine that equality is equity, is for
a pro rata share. He . . . seeks to avoid part of his
liability because a co-tortfeasor paid more than he had
to under the law. If defendant can invoke the one-
satisfaction rule, he will enrich himself to the extent of
another's overpayment. Hence, as plaintiff correctly
puts it, the question is whether it is the plaintiff or the
defendant who should be "unjustly" enriched if there
in fact is any "unjust" enrichment in this scene.
We think plaintiff has the better of the argument
in terms of both fairness and utility.
As to fairness, it is difficult to know whether a
tort claimant has received more than full satisfaction.
There is no precise measure of the amount of wrong.
Even if the trial is as to damages only, successive
juries would rarely make the identical appraisal. Nor
is there reason to suppose that a jury's evaluation of
losses is more accurate than the evaluation made by
the parties to the settlement.
[Id. at 239–40 (emphasis added) (citations omitted).]
Despite these statements, the Court nevertheless approved the application of a
pro tanto settlement credit, even when the settling defendant was "not a party
to" the wrong. Id. at 241.
A-4042-19T3
37
B.
After passage of the CNA, Theobold II's award of a pro tanto credit
based upon a plaintiff's settlement with a non-adjudicated joint tortfeasor is no
longer viable. We first addressed the issue in Rogers, a case involving joint
tortfeasors and decided five days after Ciluffo.
In Rogers, the settling defendant paid the plaintiffs $5000 in exchange
for a covenant not to sue. 147 N.J. Super. at 275–76. The jury found no
negligence on the settling defendant's part, 100% negligence on the remaining
defendant's part, and total damages of $10,750. Ibid. "[R]elying solely" on
Theobold II, the remaining defendant claimed entitlement to a pro tanto credit
for the settlement monies received from the non-negligent settler. Ibid.
We noted first that in Theobold II, "[t]his pro tanto credit was not
challenged . . . on appeal." Id. at 276. We rejected application of a pro tanto
credit, observing that under the CNA, a plaintiff who "makes a particularly
good bargain in settlement" with a tortfeasor who is ultimately assigned a
small percentage of fault at trial, or with a party later found to be without
liability entirely "will benefit by the excess amount." Id. at 277–78. We
explained:
This necessarily means that if the settling defendant is
found [zero percent] negligent (as in the present case),
plaintiff will receive the settlement plus the full
A-4042-19T3
38
verdict. Under previous law in New Jersey the pro
tanto amount paid by a non[-]negligent settling
defendant was deducted from the verdict as long as the
amount deducted did not exceed the possible pro rata
share. Of course, under the [CNA] only the
percentage amount equal to the percentage of
negligence attributable to the settling defendant is
deducted, no matter what the size of the settlement. It
follows that the potential for enrichment of plaintiff
beyond the loss suffered has been increased.
However, this is offset by the potential for a greater
loss to plaintiff if he makes a low settlement. While
ideally a claimant should not receive more than one
satisfaction for a wrong, when the situation arises in
which additional enrichment must necessarily flow to
someone, the more just result is to have the person
wronged receive the benefit and not a wrongdoer.
[Ibid. (citing Theobold II, 44 N.J. at 239–41)
(emphasis added).]
In the context of joint tortfeasors, our caselaw has consistently followed
Rogers' rationale, i.e., that the CNA eliminated pro tanto credits based on a
plaintiff's settlement with another party, and the adjudicated tortfeasor was
entitled to a "credit" — a reduction in any award of damages — only by
application of the adjudicated percentage responsibility of other tortfeasors.
See, e.g., Young, 123 N.J. at 591 (citing Rogers and holding that "[t]he non-
settling defendant is not entitled to a credit if the plaintiff settles with a party
found not to be a tortfeasor"); Johnson, 306 N.J. Super. at 436–37 (noting, "as
Rogers pointed out, the comparative-negligence scheme differs from the
A-4042-19T3
39
former [JTCL], as construed by [Theobold II], under which the non-settling
defendants were entitled to a pro tanto credit for the proceeds of the settlement
made by plaintiff with the settling defendant whose liability was never
adjudicated"). Indeed, "[t]he rationale of Rogers . . . has been consistently
reaffirmed and adhered to" and "the rule applies to every multiple defendant
case in which a comparative negligence allocation among them is required to
be made." Johnson, 306 N.J. Super. at 437 (emphasis added).
Because, as outlined above, common law concepts that limited a
faultless plaintiff's full recovery of her damages have long been jettisoned, and
because our jurisprudence has moved inexorably toward apportioning damages
based on adjudicated fault, we see no principled reason for continuing the
Ciluffo pro tanto credit formula simply because this case involves successive
instead of joint tortfeasors. As every case since Rogers has recognized, the
CNA, which by its express terms does not apply solely to joint tortfeasors,
reflected a legislative policy judgment that in turn reflected monumental
changes in the common law. While it remains important that a plaintiff "not
receive more than one satisfaction for a wrong, when the situation arises in
which additional enrichment must necessarily flow to someone, the more just
result is to have the person wronged receive the benefit and not a wrongdoer ."
Rogers, 147 N.J. Super. at 278.
A-4042-19T3
40
Indeed, with the exception of Clark and Mitchell — two cases that cite
Ciluffo and ostensibly approve the pro tanto credit formula — the Medical
Defendants point to no decisions that approve pro tanto settlement credits in
any context other than alleged medical malpractice in the treatment of prior
occurring injuries. We doubt that our courts intended to carve out such an
exception to our general tort jurisprudence. 10 Moreover, a close reading of
those two cases lend little support to the Medical Defendants' arguments that a
potential pro tanto settlement credit should still apply.
In Clark, the plaintiff suffered serious injuries in an auto accident and
later died from cardiac arrest after the medical defendants provided neglig ent
10
The Court has recognized the continued vitality of pro tanto credits in the
context of uninsured motorist claims brought pursuant to a personal
automobile insurance policy. Riccio v. Prudential Prop. & Cas. Ins. Co., 108
N.J. 493, 503–05 (1987). However, there the Court differentiated the public
policy supporting the uninsured motorist coverage and noted, "The policy
behind the [JTCL] and the [CNA], on the other hand, is quite different. It is
one of equity among joint tortfeasors — that is, those responsible for injury to
an innocent victim should share equally the burden of recompense." Id. at 504.
Accord Childs v. N.J. Mfrs. Ins. Co., 108 N.J. 506, 512–15 (1987). In Gold v.
Aetna Life & Casualty Insurance Co., we recognized the viability of the
Ciluffo pro tanto settlement credit in a claim brought under the underinsured
motorist provisions of a policy. 233 N.J. Super. 271, 277 (App. Div. 1989).
Citing Riccio, we noted that "[i]f plaintiffs had brought a common law suit
against these defendants, the outcome might be different[,]" but Rogers was
inapplicable because "the deduction of settlement proceeds from any potential
underinsured motorist benefits is consistent with the public policy underlying
the availability of contracted UIM coverage." Id. at 278 n.3.
A-4042-19T3
41
treatment. 390 N.J. Super. at 112–13. The jury found the medical defendants
were negligent and awarded the plaintiff's survivor $2 million in pain and
suffering damages and $1 million in wrongful death pecuniary losses. Id. at
111. One of the points raised on the medical defendants' appeal was that the
trial judge failed to charge in accordance with Ciluffo regarding the plaintiff's
settlement of more than $700,000 with the driver involved in the accident, who
was never a party to the suit. Id. at 119.
"[I]nstead of asking the jury to determine total damages and the
malpractice damages, the judge instructed the jury to determine what damages
flowed from the malpractice and what damages were caused by the initial
accident. Therefore, the two damage amounts together would constitute 'total
damages.'" Id. at 120. The judge told the jury that the medical defendants
would "receive a credit for any amount paid by the other driver in the
settlement in excess of the amount you determine to be the damage s ustained
solely from the automobile accident." Ibid. The jury was not told the amount
of the settlement and apportioned the damages as $2 million from the medical
negligence and $1.5 million from the car accident. Id. at 120–21. We rejected
the medical defendants' argument regarding the charge, finding "no essential
difference between the process contemplated by Ciluffo and the process
utilized here." Id. at 121.
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Importantly, "because the amount of damages assigned by the jury for
the accident far exceeded the settlement amount, there was no credit due
defendants from the settlement." Ibid. And, we refused to consider as moot
"whether Ciluffo applies at all to this case where the other driver was never
sued[.]" Ibid. In short, the actual application of a pro tanto credit based on the
plaintiff's prior settlement was not before us in Clark.
In Mitchell, the plaintiff sued the owner of a bar at which he was injured
during a brawl and, in a separate lawsuit, the dentist who allegedly was
negligent in treating the injuries to his mouth. 331 N.J. Super. at 448–49. On
the day of trial, the plaintiff settled with the bar owner for $125,000, and, on
the same day, moved to amend the complaint to alleged malpractice by the
defendant dentist. Id. at 449. The trial court dismissed the suit against the
dentist on the grounds that he had been substantially prejudiced by the
plaintiff's failure "to comply with the then-applicable entire controversy
doctrine and notice requirements of Rule 4:5-1(b)(2)[,]" but we disagreed and
reversed. Id. at 449–55, 458.
The Mitchell defendant also argued that the plaintiff was "not entitled to
proceed against him because the $125,000 settlement represented
compensation for all injuries sustained[.]" Id. at 456. We disagreed and held
that the plaintiff was "entitled to have a jury determine the issue of full
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compensation, as well as that amount attributed to defendant's alleged
malpractice." Id. at 458.
We cited the Ciluffo calculation with approval, noting that "to avoid
duplicating compensation paid to [the] plaintiff, the successive tortfeasor may
receive a credit for part or all of the payment made by the initial tortfeasor."
Id. at 456. We noted, however, that, "[a]t oral argument, plaintiff's counsel
conceded that plaintiff had been satisfied to the extent of the settlement with
the Cherry Hill defendants and would not be entitled to collect additio nal
damages, unless the verdict attributed to defendant's negligence exceeded
$125,000." Ibid. (emphasis added). In short, the plaintiff in Mitchell never
raised the issue we now address.
III.
The developments in tort law since Ciluffo was decided regarding the
apportionment of liability among multiple parties have been significant. It
remains true that "[n]o party should be liable for harm it did not cause[.]"
Restatement (Third) § 26 cmt. a. However, under the two-step process
outlined in Campione, successive tortfeasors suffer no prejudice if the jury can
properly apportion "divisible damages into their indivisible component parts."
Id. at cmt. c. This certainly seems to be such a case, since the jury can easily
understand that the Medical Defendants cannot be held liable for Jennifer's
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fractured ankle, the pain and suffering that occurred as a result, and the need
for surgery. We specifically anticipated the ability of a jury to apportio n
damages in such circumstances in Ciluffo, Mitchell, and Clark.
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.
The orders under review are reversed, and the matter is remanded to the
Law Division for further proceedings consistent with this opinion. We do not
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retain jurisdiction.
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