On appeal from the Superior Court, Appellate Division, whose opinion is reported at 233 N.J. Super. 520 (1989).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
[123 NJ Page 585] In this medical-malpractice case plaintiff settled before trial with one defendant-physician. In rendering a verdict for plaintiff, the jury allocated the percentages of fault as between the non-settling tortfeasor (the only remaining defendant at trial) and the physician who had settled. Although the non-settler had not filed a cross-claim for contribution against the settling defendant, the trial court nevertheless gave the nonsettling tortfeasor the benefit of a credit against the judgment in view of the jury's finding that the settling defendant too had been at fault.
The question posed on this appeal is whether despite his failure to have sought contribution the non-settling tortfeasor is entitled to a credit reducing the amount of plaintiff's judgment against him to reflect the degree of fault that the jury allocated to the settling tortfeasor. The Appellate Division, one judge dissenting, upheld the trial court's ruling granting the non-settling defendant a credit against the judgment. 233 N.J. Super. 520, 559 A.2d 465 (1989). Plaintiff appeals as of right because of the dissent below. R. 2:2-1(a)(2).
We agree with the dissenting judge's conclusion that our Rules as currently drafted require that a non-settling defendant file a claim for contribution before the trier of fact can decide the fault of a settling defendant so that the court can calculate a credit in favor of the non-settler. However, because we are convinced that the procedural obligation now imposed by the Rules fails to take account of the practical problems inherent in litigating cases such as this, we conclude that our Rules should be amended to reflect the realities of the courtroom.
We hold that a credit is available in every case in which there are multiple defendants, whether or not a cross-claim for contribution has been filed. Because we are satisfied that plaintiff in this case had adequate notice that the settling defendant's negligence would be at issue, we conclude that plaintiff was not prejudiced by the trial court's ruling. We therefore affirm the judgment below. In addition, we refer this opinion to the Civil Practice Committee for the drafting of appropriate Rule amendments to accommodate our decision.
The undisputed facts are that on August 12, 1983, plaintiff, Steven Young, suffered injuries in a fall from the boardwalk at Wildwood. He was taken to the emergency room of Burdette Tomlin Memorial Hospital (Burdette Tomlin) where defendant Dr. Richard Latta examined him. After reviewing plaintiff's x-rays Dr. Latta called in defendant Dr. Carmen Alameno, the
general staff surgeon on duty. Dr. Alameno admitted plaintiff to the hospital and assumed the patient's care until his discharge on August 14, 1983. The following day plaintiff sought treatment at another hospital, where it was determined that he had suffered an injury to his right optic nerve. The injury eventually resulted in permanent blindness in plaintiff's right eye.
Plaintiff filed suit against Alameno and Burdette Tomlin, claiming that their negligence had caused the loss of sight in the damaged eye. Those defendants filed cross-claims against each other, seeking contribution and indemnification. Plaintiff subsequently amended his complaint to name as defendants Dr. Latta and Dr. James Manlandro, another physician at Burdette Tomlin. Alameno filed cross-claims for contribution and indemnification against Latta and Manlandro, but they did not respond in kind.
The trial court dismissed the suit against Manlandro by summary judgment. Plaintiff then settled with Alameno for $20,000, and also dismissed his claim against the hospital, leaving Latta as the only defendant at trial.
Immediately before the start of trial, and over plaintiff's objection, Latta obtained a ruling that would permit the jury to decide whether Alameno had been negligent and, if so, to apportion the degrees of negligence between them. At trial, plaintiff's expert testified, consistent with his written report, about the negligence of both Alameno and Latta. At the close of the evidence the trial court submitted special interrogatories to the jury regarding the liability of the two physicians. The jury determined that both had been at fault, Latta to the extent of twenty percent and Alameno (who, of course, had already settled with plaintiff) to the extent of eighty percent. The court molded the jury's verdict of $150,000 by entering judgment against Latta for $30,000. Thus, despite proving damages of $150,000 and the causative negligence of both physicians, plaintiff emerged from trial with a recovery of $50,000:
$20,000 from his settlement with Alameno and $30,000 from Latta.
Before the Appellate Division, plaintiff contended that because he had settled with Alameno, and because Latta had not asserted a cross-claim for contribution against Alameno, the trial court had erred in submitting the issue of Alameno's negligence to the jury. Plaintiff argued that Latta should be liable for the full amount of the damages or, at best, receive only a pro tanto credit for Alameno's settlement. A divided panel of the Appellate Division ruled in favor of Latta.
Plaintiff argues that the allocation of fault among joint tortfeasors as provided for in the Comparative Negligence Act, see N.J.S.A. 2A:15-5.2, is not automatic; rather, it comes into play only when a defendant has asserted a claim for contribution. Of course, the availability of a credit to a non-settling tortfeasor would become moot were the factfinder foreclosed from determining the settling tortfeasor's percentage of fault, because that percentage determines the amount of the credit. In effect, plaintiff contends that the non-settler is not entitled to a credit unless he or she has preserved that remedy by means of a cross-claim for contribution. Consideration of that argument requires a brief review of the development of the contribution doctrine.
Contribution among joint tortfeasors is a statutory device of relatively recent development. At common law the plaintiff alone controlled where the burden of fault would lie -- that is, a plaintiff was free to choose which of multiple tortfeasors to sue and, having obtained judgment against several, from which among them to seek satisfaction of the judgment. The successful plaintiff also could control the proportion in which culpable tortfeasors would be responsible for payment: he or she could
collect all or any portion of the award from any judgment debtor ...