On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Gaulkin, R. S. Cohen and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D. R. S. Cohen, J.A.D., dissenting.
The novel question presented by this appeal is whether the negligence of both a settling tortfeasor and a non-settling tortfeasor may be decided by the jury in the absence of a claim for contribution by the non-settler. We agree with the trial judge and answer in the affirmative.
The essential facts are not in dispute. On August 12, 1983, plaintiff fell from the boardwalk in Wildwood to the street below, injuring his head and face. He was taken to Burdette Tomlin Memorial Hospital, where he was first attended in the
emergency room by Dr. Latta. After an initial examination and review of X-rays, Dr. Latta called Dr. Alameno, the general staff surgeon then on call. Alameno authorized plaintiff's hospitalization. Plaintiff remained under Alameno's care until his discharge from Burdette Tomlin on August 14, 1983. On August 15, plaintiff was admitted to Princeton Medical Center, where a diagnosis was made of injury to the right optic nerve, resulting in permanent damage to and blindness in the right eye.
Plaintiff first sued Alameno and the hospital, claiming that their negligence caused the loss of vision in his right eye. Both defendants cross-claimed against each other, seeking contribution and indemnification.
By amended complaint, plaintiff then added as defendants Latta, Dr. Manlandro and the ABC Corporation, a fictitious entity.
Alameno cross-claimed for contribution and indemnification against Latta and Manlandro, who filed a joint answer to the amended complaint. They did not cross-claim against Alameno for contribution or indemnification.
Summary judgment was later entered in favor of Manlandro. Just before trial, plaintiff settled with Alameno for $20,000 and dismissed with prejudice his claim against the hospital. This left Latta as the only remaining defendant at the time of trial.
Over objection of plaintiff's attorney, the trial judge instructed the jury to decide negligence and causal relationship as to both Alameno, the settling defendant, and Latta, the non-settler. Special interrogatories were submitted to the jury. The jury found both doctors at fault, fixed damages at $150,000, and assessed negligence at 80% for Alameno and 20% for Latta. The trial judge molded the verdict, awarding judgment against Latta in the amount of $30,000. The judge assessed prejudgment interest against Latta from May 10, 1984, the date that plaintiff filed the original complaint which did not name Latta as a party defendant.
Plaintiff appeals, contending that because of Latta's failure to cross-claim against Alameno for contribution, the jury should not have considered the negligence of Alameno, the settling co-defendant. Latta cross-appeals, arguing that prejudgment interest should have been assessed against him only from the date that he was made a party defendant in the amended complaint.
If the trial judge was correct in instructing the jury to decide the negligence of both the settling and non-settling defendants, plaintiff's recovery, exclusive of interest, is $50,000: $20,000 from the settler Alameno, and $30,000 from Latta, the non-settler (20% of $150,000).
Without Alameno's negligence submitted to the jury, plaintiff's recovery, exclusive of interest, is $170,000: $20,000 from Alameno, plus $150,000, the total verdict proceeds, from Latta. Alternatively, plaintiff argues that Latta should at most receive a credit for the $20,000 paid plaintiff from Alameno, leaving Latta to pay $130,000. Plaintiff would thus receive $150,000, the amount of the jury verdict.
We conclude that the trial judge was correct in submitting the negligence of the settling and non-settling defendants to the jury, and thereafter molding the verdict in accordance with the jury's allocation of fault between these two defendants.
The Comparative Negligence Act (N.J.S.A. 2A:15-5.1 et seq.) directs in N.J.S.A. 2A:15-5.2 "[i]n all negligence actions in which the question of liability is in dispute," the trier of fact shall determine "the full value of the injured party's damages" (subsection a) and also
The extent, in the form of a percentage, of each parties' negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of negligence of all the ...