Dreier, J.d.c., Temporarily Assigned.
Plaintiff in this auto negligence case has moved simultaneously (1) to amend her complaint to allege "gross negligence or wanton and willful conduct on the part of the defendant," and (2) for an order "granting partial summary judgment declaring that the defendant is guilty of [such] gross negligence and/or wanton conduct as a matter of law and further striking the defense of contributory negligence." Since this suit arose out of an automobile accident which occurred on October 5, 1974, it is governed by the comparative negligence statute, N.J.S.A. 2A:15-5.1 et seq. , and is the first case discovered by this court to examine the continued viability of the concepts of gross negligence and willful and wanton conduct since the adoption of comparative negligence in New Jersey.*fn1
The facts are not in dispute. On October 4, 1974 plaintiff was a passenger in an automobile owned and operated by defendant. Prior to the accident plaintiff had been on a social date with defendant, and while at plaintiff's home defendant
consumed all but a small part of a pint bottle of gin over a three-hour period. Thereafter, at about 11:30 P.M., plaintiff and defendant proceeded to a bar where they remained for about three hours, during which defendant consumed an additional three drinks and was noticeably belligerent toward another person. The parties left the bar at about 3 A.M. Another acquaintance solicited a ride from defendant, but while giving travel directions led him on a "wild goose chase," further aggravating defendant. He admittedly commenced driving at excessive speeds (in excess of 55 miles an hour in a 35 mile an hour zone), and then lost control of his vehicle while crossing railroad tracks around a curve. Plaintiff was injured when defendant hit a utility pole on the opposite side of the road. Defendant admitted being aware of his intoxication at the time of the mishap, prompting his guilty plea to operating a motor vehicle while impaired, in contravention of N.J.S.A. 39:4-50.1. A blood sample administered at the hospital revealed a blood alcohol content of .28. Defendant concluded his deposition stating that the accident happened "cause I was angry about a few different things that took place that night and because I was driving at an excessive rate of speed and also because I was drinking. For those three reasons."
There is no question but that an order amending the pleadings should be granted under circumstances where the new material could reasonably be the basis of a cause of action. Defendant waives his procedural objections to the timing of the accompanying summary judgment motion and agrees that this court should consider the amendment and summary judgment motions on their substantive merits.
The facts of this case are similar to those in Tabor v. O'Grady , 59 N.J. Super. 330 (App. Div. 1960), reh. 61 N.J. Super. 446 (App. Div. 1960). The rule established by Tabor is that a plaintiff who proves defendant's wanton and willful misconduct will not be barred by simple contributory negligence. The defendant must prove plaintiff's own wanton and willful misconduct in order to defeat such a claim.
Considering the nature of defendant's conduct in such a "wanton and willful" case, the increased burden upon defendant was recognized as equitable in view of the then existing contributory negligence rule. That rule precluded recovery notwithstanding the fact that plaintiff's negligence was substantially less in degree than defendant's negligence, if both proximately contributed to the happening of the accident. Maccia v. Tynes , 39 N.J. Super. 1 (App. Div. 1956). Although the Supreme Court later, in O'Brien v. Bethlehem Steel Corp. , 59 N.J. 114 (1971), reinterpreted and ameliorated the harshness of this rule by requiring that a plaintiff's negligence must be shown to have been a substantial factor in bringing about the harm complained of, the contributory negligence rule remained in force until the enactment of N.J.S.A. 2A:15-5.1 et seq. When the Tabor court considered this matter in 1960 it stated specifically that it was not applying rules of comparative negligence. 61 N.J. Super. at 452. It thus could not then have envisioned the application of its doctrine to our comparative negligence statute. Commentators, however, have viewed cases such as Tabor as a first step towards a crude comparative negligence system. Schwartz, Comparative Negligence , § 5.1 at 100 (1974); Harper & James, The Law of Torts , § 22.6 at 1215 (1956).
But this softening of the contributory negligence rule is one of two basic reasons for the harsher consequences of the "willful and wanton" negligence rules. The other, as noted by Professor Schwartz, is:
[D]efendant's negligence, gauged in terms of culpability, is so close to intentional wrongdoing that he should not have the benefit of contributory negligence. * * * Once a state has adopted comparative negligence [the amelioration] reason for the rule is removed, but the [culpability reason] remains. Thus the courts are presented with a very difficult issue if the legislature has given no guidance. [ Schwartz, Comparative Negligence , § 5.3, at 105 (1974)]
There are three possible directions this court can take in applying the comparative negligence ...