Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
[61 NJSuper Page 449] We have granted defendant's petition and plaintiffs' cross-petition for rehearing, both parties desiring us to reconsider the views we expressed on the availability of the defense of contributory negligence in this case, and to review various other matters considered in the opinion. Tabor v. O'Grady , 59 N.J. Super. 330 (App. Div. 1960). Briefs have been filed by the parties in support of the respective positions taken.
It will be recalled that plaintiffs were rear-seat passengers in an automobile recklessly driven by defendant O'Grady in the early hours of the morning; that plaintiffs may have been intoxicated; and that they did not remonstrate with O'Grady or leave the car when a reasonable opportunity may have been afforded. We reversed a jury verdict for plaintiffs because of the prejudicial remarks of their attorney in summation. On defendant-appellant's contention that plaintiff Tabor was guilty of contributory negligence and assumption of risk as a matter of law, we ruled that it was for a jury to say, on retrial of the cause, whether plaintiffs were contributorily negligent in respect to their failure to alight, and that under our cases voluntary intoxication would not excuse any default in that regard. In the course of our opinion, however, we indicated that even if plaintiffs were found not to have used ordinary care in failing to remove themselves from the car, they might still recover if the defendant was found guilty not merely of negligence but of willful or wanton misconduct. 59 N.J. Super. , at page 340.
The rule that contributory negligence is not a defense assertable by one who is guilty of recklessness or wanton misconduct -- argued by defendant to be non-existent in New Jersey -- was stated as far back as Vandegrift v. Rediker , 22 N.J.L. 185, 189 (Sup. Ct. 1849). It was there recognized that where an accident is the common fault of the parties, the action may nevertheless be maintained against one whose conduct was "so gross as to evince recklessness or design." This is justified on the reasoning that a serious wrongdoer should not escape liability because of the relatively trivial misstep of the plaintiff. 2 Harper & James, The Law of Torts (1956), § 22.6, p. 1214. As we indicated in the opinion, the rule was reiterated by the Court of Errors and Appeals in Camden, G. & W. Ry. Co. v. Preston , 59 N.J.L. 264, 266-267 (E. & A. 1896).
Defendant suggests that if the rule does exist, its application is limited to cases of intentional tort. It is true
that in restating the principle most of our cases have stressed the element of willfulness or intentional wrongdoing on the defendant's part. In Hartman v. City of Brigantine , 23 N.J. 530, 532 (1957), for example, it was said that a negligent plaintiff cannot recover "unless the defendant's act was a willful trespass, or amounted to an intentional wrong, * * *." See also Seipel v. Sevek , 53 N.J. Super. 151, 160 (App. Div. 1958), reversed on other grounds 29 N.J. 593 (1959). In these and such kindred cases as New Jersey Express Co. v. Nichols , 33 N.J.L. 434, 439-440 (E. & A. 1867), and Menger v. Laur , 55 N.J.L. 205, 215 (Sup. Ct. 1893), the rule was impliedly considered not to be theoretically incompatible with the rejection of the doctrine of comparative negligence. Cf. Maccia v. Tynes , 39 N.J. Super. 1, 7 (App. Div. 1956).
We do not believe these decisions can be regarded as narrowing the scope of the rule as it was stated in the Vandegrift and Preston cases. If the emphasis on willfulness and intentional wrongdoing in the more modern formulation were to be taken as meaning that the defendant must have actually intended to inflict harm on his victim, then we would agree that the facts of this case would not sustain its application. O'Grady bore no ill will toward plaintiffs, and there was no proof that he drove as he did deliberately to injure them. Our conception of the principle under consideration, however, is that wanton or willful misconduct does not require the establishment of a positive intent to injure. That element of intent is constructively supplied where there is proof that the actor, "with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result." Staub v. Public Service Ry. Co. , 97 N.J.L. 297, 300 (E. & A. 1922). His wrongful act will then be deemed to
involve the same legal consequences as if it had been an intentional tort, regardless of his actual state of mind.
The view that the "willfulness" indicated is not an actual fact but a legal implication drawn from proof of wanton misconduct, shared by all members of a divided court in Rose v. Campbell , 102 N.J.L. 449 (E. & A. 1926), is now settled law in this jurisdiction. See King v. Patrylow , 15 N.J. Super. 429, 433 (App. Div. 1951); 1 Stevenson, Negligence in the Atlantic States (1954), § 16, p. 28. See also Krauth v. Geller , 31 N.J. 270, 277 (1960). To be sure, the nature of willful and wanton misconduct was considered in King v. Patrylow in the course of an inquiry as to whether a master would be liable for his servant's willful torts; in Rose v. Campbell and Krauth v. Geller it was analyzed in terms of the duty owed a licensee and fireman, respectively; and in Eatley v. Mayer , 9 N.J. Misc. 918, 154 A. 10 (Cir. Ct. 1931), the question was whether a wanton act would support a charge for punitive damages. But the discussion of the concept in these cases transcends the actual point decided. We think they require the conclusion that, even for purposes of deciding the availability of the defense of contributory negligence, the defendant's conduct may be willful and wanton without the existence in fact of an intent to injure the person harmed.
We point out that the rule that we are here reaffirming should not be considered as a step in the direction of comparative negligence notwithstanding that the fault of the parties is compared. The doctrine of comparative negligence involves a reduction of plaintiff's damages in proportion to his negligence; the present ...