For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
[53 NJ Page 159] This automobile negligence case arose out of an intersection collision in which the plaintiff Jean Dziedzic was injured. She was a passenger in a delivery truck operated by defendant Dingle, an employee of defendant St. John's Cleaners and Shirt Launderers, Inc., owner of the vehicle. The truck collided with a car driven by defendant Winger. In Mrs. Dziedzic's suit against the three defendants, the jury found that Dingle, the driver of the truck, had negligently caused the collision and her ensuing injuries, and returned a verdict of $6,000.00 against him and his employer, St. John's. Winger was absolved of responsibility. On the
appeal of Dingle and St. John's, the Appellate Division reversed and remanded for a new trial, holding that the trial court had erroneously granted the plaintiff's motion to strike the defense of contributory negligence. 99 N.J. Super. 565. We granted plaintiff's petition for certification. 51 N.J. 580 (1968).
The validity of plaintiff's motion to strike the defense of contributory negligence is the sole question on this appeal. At the trial, the defense contended that Mrs. Dziedzic had been negligent in riding in the laundry delivery truck, a vehicle equipped with only one seat for the driver. The driver's seat was elevated; between the seat and the truck's sliding door was "the well" of the truck on a lower level, where Mrs. Dziedzic was standing at the time of the collision. She testified that she was "holding on to the dashboard and there was like a, piece of pipe or something, I was holding on to that."
The trial judge held that Mrs. Dziedzic's conduct had not contributed to the cause of the collision. He further held that a jury could find that in riding in the truck as she did, plaintiff was not exercising reasonable care. However, with regard to the plaintiff's alleged contribution to her injuries, since no evidence had been introduced by either party on this point, the judge held that the jury could only speculate as to which portion of plaintiff's injuries was due to her position in the truck. He therefore struck the defense of contributory negligence.
In reversing the plaintiff's judgment, the Appellate Division ordered a new trial which would be restricted to the question of the causal relation between plaintiff's asserted negligence and her injuries, holding that the plaintiff must bear the risk of a failure of the evidence to provide a reasonable basis for apportioning the damages. 99 N.J. Super., at p. 571.
At the outset, we agree with the trial court, and it is not otherwise contended, that the plaintiff's position in the truck did not in the slightest contribute to the cause of the collision.
It is also undisputed that the jury could find, as it did, that defendant's negligent driving was a proximate cause of plaintiff's injuries. We assume, as did the Appellate Division, that the trial judge was correct in ruling that the jury could find that the plaintiff had not exercised reasonable care in standing in the truck, even though it might well be that in permitting the plaintiff to stand in the truck, defendants should be barred from asserting her contributory negligence in any aspect. Therefore, the only controversy centers upon the role of plaintiff's conduct as an alleged proximate cause of her injuries, concurrent with the defendant's negligence.
To best understand the dispute we must briefly mention the traditional framework for this kind of tort litigation. A plaintiff bears the burden of proving defendant's negligence, and that such negligence was a proximate cause of plaintiff's injury. In New Jersey, once the plaintiff's burden has been met, the defendant bears the burden of pleading and proving plaintiff's negligence, and that such negligence contributed to the injury as a proximate cause. R.R. 4:8-3. Contributory negligence is an affirmative defense. See Pangborn v. Central Railroad Co. of New Jersey, 18 N.J. 84 (1955); Kaufman v. Pennsylvania Railroad Co., 2 N.J. 318 (1949).
The question in the present case as the Appellate Division framed it was as follows: Once both the plaintiff and the defendant have met their respective burdens, i.e., that there is evidence that both parties were negligent and that both parties' negligent conduct contributed to the injury as a proximate cause, who then bears the burden of apportionment? Through an analysis of several sections of the Restatement of Torts 2 d, the Appellate Division concluded that the plaintiff bears the risk of adducing evidence which is specific enough for a jury to reasonably apportion responsibility for the injuries. We hold that the conclusion of the Appellate Division was reached prematurely. That is, regardless of which party is to bear the burden of apportionment, in the present case the defendants have not met their traditional
burden of proving the causal link between plaintiff's alleged negligent ...