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Murray v. Nicol

Decided: April 7, 1988.


On appeal from Superior Court of New Jersey, Law Division, Union County.

Dreier and Baime. The opinion of the court was delivered by Baime, J.A.D.


[224 NJSuper Page 305] This appeal and cross-appeal present questions of first impression. At issue is whether N.J.S.A. 59:9-3b, which mandates that in any case involving a public entity a settlement by one joint tortfeasor must be deducted pro tanto from a judgment against another joint tortfeasor, is applicable where the non-settling party is a private person.*fn1 Ancillary questions

concern the applicability of N.J.S.A. 59:9-2e, which abrogates the common law collateral source rule in connection with an award obtained from a public entity or employee. Other issues relate to the trial court's order, barring the presentation of a defense witness because his name did not appear in answers to interrogatories.

The salient facts are not in dispute. Plaintiff instituted this action to recover damages for injuries sustained when the motor vehicle he was driving was struck by another operated by defendant Kari D. Nicol. The collision occurred at an intersection. Plaintiff's line of traffic was controlled by a stop sign which was obscured by a tree and other foliage planted and maintained by defendant Township of Union. In his complaint, plaintiff alleged that the concurrent negligence of Nicol and the Township constituted proximate causes of his injuries.

The accident occurred in the course of plaintiff's employment and he thus received substantial workers' compensation benefits. Prior to trial, plaintiff settled with the Township in the amount of $20,000. The jury ultimately returned a verdict in plaintiff's favor in the sum of $55,000. In its verdict, the jury ascribed fault in the following manner:

Defendant Nicol 20%

Defendant Township of Union 70%

Plaintiff 10%

Immediately following the jury's determination, the trial court molded the verdict by first reducing the amount of the award by ten percent, which represented plaintiff's contributory negligence, and then deducting the amount of the settlement from the remainder. Defendant Nicol thereafter moved for reconsideration, arguing that a pro tanto reduction is mandated by N.J.S.A. 59:9-3b only where the public entity is the non-settling party. The trial court agreed. Relying primarily on the fact that N.J.S.A. 59:9-3b is entitled "Contribution by a public entity or public employee with a joint tortfeasor," the court determined that the statute was applicable only in cases in which the public entity is the non-settling party against

whom the judgment is entered. Where, as here, the settling party is the public entity, the court found no reason to deviate from the prescription of the Comparative Negligence Law (N.J.S.A. 2A:15-5.1) which directs that when a claimant settles with a codefendant, that percentage of negligence found attributable to the settling codefendant is to be deducted from the verdict returned against the non-settling defendants. So posited, the court molded the verdict, deducting from the damages the amount represented by plaintiff's contributory negligence, and reducing this sum by 70%, the percentage of fault allocated to the Township. Judgment against Nicol was entered in the amount of $11,000 plus prejudgment interest.


In the principal appeal, plaintiff asserts that the trial court incorrectly narrowed the reach of the statutory prescription embracing the pro tanto rule, contrary to the clearly expressed intent of the Legislature. It is argued that the legislative objective was to accord an injured party the benefit of his bargain with the settling tortfeasor and encourage amicable adjustment of claims through settlements. We agree.

The pro tanto rule is set forth in N.J.S.A. 59:9-3b, a part of the New Jersey Tort Claims Act (N.J.S.A. 59:9-1 et seq.). The statute provides in pertinent part that "[a]ny payment received by the injured party on account of a settlement or a judgment paid by an alleged tortfeasor shall be reduced pro tanto from the injured party's judgment against any other tortfeasor."*fn2 N.J.S.A. 59:9-3b. (Emphasis added). By its very terms, the statute mandates that the pro tanto rule applies whenever there ...

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