On appeal from Superior Court of New Jersey, Law Division, Essex County.
Presented by this appeal is whether a joint tort-feasor whose negligence exceeds that of plaintiff is entitled to contribution from another joint tortfeasor whose negligence is less than plaintiff's. We conclude that there can be no contribution from a party not legally liable to the person injured.
In his complaint plaintiff Frank Nora alleged that on August 13, 1975 he was injured when his motorcycle was upended when it hit a depression in the roadway. The jury returned a verdict of $6,000 against defendants Public Service and County of Essex, apportioning the negligence as follows: Public Service, 48%; plaintiff, 35%; and County of Essex, 17%. The trial judge molded the verdict so that Public Service would pay 48% and the County of Essex, 17% of the judgment. Subsequently plaintiffs moved "to determine the effect of the jury verdict against the respective defendants," complaining that the County of Essex had refused to pay its share on the ground that plaintiff's negligence exceeded that of the County of Essex. The trial judge ruled that Public Service should pay the entire judgment of $6,000, minus a deduction of 35% for plaintiff's contributory negligence. Public Service then moved for an order compelling the County of Essex to contribute its 17% share of the judgment, the full amount of which Public Service had already paid plaintiffs. The motion was denied, resulting in the instant appeal.
The Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq. , creates the right of contribution among parties adjudicated liable in tort. The right arises:
Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled
to be indemnified by him in respect to the liability for which the contribution is sought. [ N.J.S.A. 2A:53A-3]
Here Public Service's "pro rata share" is determinable only after giving effect to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq. N.J.S.A. 2A:15-5.1 bars a negligent plaintiff from recovering against a defendant whose negligence, as computed by the jury, is less than plaintiff's. Since plaintiff's negligence (35%) exceeded that of the County of Essex (17%), plaintiffs herein could recover only against Public Service and in an amount reflecting a deduction for their 35% contributory negligence ($2,100), or a total of $3,900 ($6,000 minus $2,100). That Public Service was not the only negligent defendant does not preclude plaintiffs from recovering the full $3,900 from it. N.J.S.A. 2A:15-5.3 provides in part that the "party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery." That section further permits any party forced to pay more than its share of the molded verdict to "seek contribution from the other joint tortfeasors." Where, as here, the alleged joint tortfeasor is a public entity, cognate provisions of the Tort Claims Act, N.J.S.A. 59:1-1 et seq. , apply to the same effect. N.J.S.A. 59:9-3; N.J.S.A. 59:9-4. N.J.S.A. 59:9-3(a) requires a public entity-joint tortfeasor "to contribute to a joint tortfeasor only to the extent of the recovery provided for under this act," referring to the limitations listed in N.J.S.A. 59:9-2 (not relevant here).
The crucial question, therefore, is whether a negligent defendant from whom plaintiff may not recover by reason of comparative negligence can be deemed a "joint tortfeasor" such as to trigger another tortfeasor's contribution rights.
There are two prerequisites to the right of contribution among negligent parties: (1) common liability because of such negligence and (2) the party claiming contribution paid more than its share of the common liability. Neveroski v. Blair , 141 N.J. Super. 365, 385-386
(App.Div.1976); Markey v. Skog , 129 N.J. Super. 192, 200 (Law Div.1974). Public Service's argument is premised upon the equivalence of negligence and liability. ...