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Rogers v. Spady

Decided: February 8, 1977.

MATTIE ROGERS AND WILLIE ROGERS, PLAINTIFFS-RESPONDENTS,
v.
ELLEN SPADY, SAMMIE MILLER AND MACK THOMAS, DEFENDANTS, AND FANNIE DRAYTON, DEFENDANT-APPELLANT



Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.

Lynch

This appeal involves application of the 1973 Comparative Negligence Law (N.J.S.A. 2A:15-5.1 et seq.) to a situation where one codefendant who settled with plaintiff during trial was found by the jury to be 0% negligent and the remaining defendant was found by the jury to be 100% negligent. The question to be resolved is whether in this circumstance there should be any pro tanto reduction from the final judgment for the amount paid in settlement.

Plaintiff Mattie Rogers was a passenger in a car driven by defendant Drayton when it was in a collision with a car operated by defendant Spady. She and her husband, suing per quod , brought this action against Drayton, Spady and two others. The action was dismissed against the others.

During trial Spady settled with plaintiff for $5,000 in exchange for a covenant not to sue. The jury returned a verdict in favor of Mattie Rogers and against Drayton in

the sum of $10,000 and in favor of her husband Willie Rogers for $750 on his per quod claim. In response to special interrogatories, the jury found Spady to be 0% negligent and Drayton 100% negligent. There was no issue as to contributory negligence on the part of Mattie Rogers.

After trial Drayton made a motion seeking a $5,000 credit on the amount of the judgment because of the Spady payment. The motion was denied and Drayton appeals, relying solely on Theobald v. Angelos , 44 N.J. 228 (1965).*fn1 In that case, decided before the enactment of the Comparative Negligence Law, there were three codefendants. Before trial two of the three settled with plaintiff. In answer to special interrogatories, one of the settling defendants was found not negligent while the other two defendants had a verdict returned against them. The nonsettling defendant not only was granted a pro rata reduction on the verdict against him in the amount of the settlement of the other negligent defendant, but he also received a pro tanto reduction equal to the amount of the settlement made by the nonnegligent defendant.

This pro tanto credit was not challenged by plaintiff on appeal. The Supreme Court affirmed, thus placing its stamp of approval on the pro tanto credit based on the settlement of an alleged tort-feasor who was found not negligent. The court said:

[I]f the claimant settles with one who is charged with the wrong but who in fact is not a party to it, the sum received (not exceeding a pro rata share) should be applied in reduction of the verdict against the culpable parties. [at 241]

Defendant Drayton argues that passage of the Comparative Negligence Act has not changed the law in regard to pro tanto reductions and therefore she is entitled to such a reduction here.

We reject defendant's contention. The adoption of the Comparative Negligence Law (N.J.S.A. 2A:15-5.1 et seq.) has altered the relationship between joint tortfeasors. N.J.S.A. 2A:15-5.2 now provides:

In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the ...


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