On appeal from Superior Court of New Jersey, Law Division, Union County.
Lora, Antell and Pressler. Pressler, J.A.D. (dissenting).
Following a jury verdict finding plaintiff 50% negligent and defendants negligent as follows: William Blanchard Company -- 30%, Epic Construction Company -- 20%, and Charles C. Hull -- 0% or not negligent, the trial judge molded the verdict and entered a judgment against plaintiff of no cause of action pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq. Thereafter, plaintiff brought a belated motion, properly viewed by the trial judge as a motion to alter or amend a judgment under R. 4:49-2, seeking a recovery because his negligence was not greater than the combined negligence of the defendants. The trial judge denied the motion both as being untimely made and on the ground that the jury's allocation of negligence precluded any recovery under our law of comparative negligence.
The basic issue on appeal is then whether in determining liability under our Comparative Negligence Act, a plaintiff's
degree of negligence is to be measured against the combined negligence of all defendants rather than against that of each individual defendant.
Preliminarily, we agree with the trial judge that plaintiff's motion was one to alter or amend a judgment, and that it was mandatory that the motion be brought within ten days after entry of judgment. R. 4:49-2; R. 1:3-4(c). Since plaintiff's motion was made some 26 days after judgment, it was indeed untimely made.
However, be that as it may, we have chosen to consider plaintiff's appeal on the merits. N.J.S.A. 2A:15-5.1 provides:
Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.
The language of the statute makes it clear that plaintiff's degree of negligence must be measured against that of each individual defendant, not the combined negligence of all defendants. It comports with the Wisconsin statute and that state's judicial interpretations thereof, which New Jersey has adopted. Cartel Capital Corp. v. Fireco of New Jersey , 161 N.J. Super. 301, 310 (App.Div.1978), rev'd on other grounds 81 N.J. 548 (1980); Rawson v. Lohsen , 145 N.J. Super. 71, 75-77 (Law Div.1976).
In Nora v. Livingston Tp. , 171 N.J. Super. 579 (App.Div.1980), where in an action for personal injuries defendant gas company was found 48% negligent, defendant county 17% negligent and plaintiff 35% negligent, the gas company moved for an order compelling the defendant county to contribute its 17% share of the judgment. The trial judge denied the motion and the gas company appealed. Accordingly, we were presented with the question whether a joint tortfeasor whose negligence exceeds
that of plaintiff is entitled to contribution from another joint tortfeasor whose negligence is less than plaintiff's. We concluded that there can be no contribution from a party not legally liable to the person injured, basing our conclusion on the fact that the Comparative Negligence Act bars a negligent plaintiff from recovering against a defendant whose negligence, as computed by the jury, is less than plaintiff's. In view of our ruling, we further held that the county, whose negligence was less than plaintiff's negligence and less than that of the gas company whose negligence exceeded plaintiff's negligence, was not a "joint tortfeasor" for purposes of contribution and hence the gas company was not entitled to contribution from the county but was required to pay the entire ...