On appeal from and on certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion.
The opinion of the court was delivered by STEIN, J.
The critical issue in this appeal is whether the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (the Act), requires the trier of fact to apportion fault between a plaintiff, a negligent co-defendant, and several settling co-defendants whose alleged fault was based on intentional conduct. We hold that the Act applies, and consequently remand to the trial court to apportion fault among all the parties and mold the verdict accordingly.
On August 19, 1982, plaintiff, Thomas Blazovic, his companion Mildred Courtis,*fn1 and a small group of friends gathered at the Plantation Restaurant and Lounge (Plantation) in Fairfield.*fn2 Defendants James Andrich, James Philbin, Dean Angelo, Vincent LaBanca, and Louis Zecchino were also at Plantation that night. The two groups sat at opposite ends of the barroom and had no contact while inside the bar. Those defendants left Plantation at approximately 11:15 p.m. Approximately fifteen minutes later, plaintiff and his friends also left the bar. The ensuing events are disputed. Plaintiff contends that while in Plantation's parking lot, he observed a group of people, including defendants, throwing stones or rocks at a nearby sign. Plaintiff testified that he politely asked them to stop, at which point the group ran toward him, pushed him to the ground, and proceeded to punch and kick him. Those defendants claim that on leaving the bar, they remained in Plantation's parking lot, throwing small stones to see who could come closest to a nearby sign. Defendant Andrich testified that a short time later, plaintiff came out of Plantation and began swearing at
defendants. Both sides agree that a member of that group of defendants began the physical confrontation.
In 1984, plaintiff instituted this negligence action against Plantation and its owner James Corsi, Jr. on the grounds that they had failed to provide adequate lighting and security for patrons in the restaurant's lot, and also had failed to exercise reasonable care in disbursing alcoholic beverages to the assailants. Plaintiff also alleged that defendants Andrich, Philbin, Angelo, LaBanca, and Zecchino had negligently or intentionally struck him as he left the Plantation, causing plaintiff to sustain physical injuries and economic loss. Each defendant denied fault and filed cross-claims for contribution.
Plaintiff settled prior to trial with defendant Zecchino for $1,000. After jury selection but before opening statements, plaintiff settled with defendant Angelo for $12,500, and with defendants Andrich, Philbin, and LaBanca for $2,750 each for a total of $21,750. Plantation's owner, Corsi, was dismissed as an individual defendant in the course of trial.
In answers to special interrogatories, the jury found Plantation negligent and determined that its negligence had been a proximate cause of plaintiff's injuries. The jury also found that defendants Andrich, Philbin, LaBanca, and Angelo had not been negligent, but instead found that they had committed an intentional assault and battery against Thomas Blazovic. Finally, the jury found that plaintiff's own negligence had contributed to his injuries. The trial court, apparently of the view that negligent conduct could not be compared with intentional conduct, instructed the jury to compare only the relative fault of the two negligent parties, plaintiff and Plantation. The jury awarded Blazovic $150,000 in compensatory damages, apportioning seventy percent of the causal negligence to Plantation and thirty percent to plaintiff.
The trial court molded the verdict. First, the court reduced the judgment by thirty percent to reflect the jury's apportionment of fault to plaintiff. The court then divided the balance of
$105,000 on a pro rata basis among Plantation and the four individual defendants. (The issue of Zecchino's liability was not presented to the jury, and his $1,000 pretrial settlement was excluded from the court's pro rata calculation.) Plaintiff's recovery totaled $42,750, consisting of $21,750 from the settling defendants and a $21,000 judgment against Plantation representing its pro rata share of the judgment reduced to reflect plaintiff's negligence, plus prejudgment interest assessed against Plantation's insurer, Midland Insurance Company (Midland).
Plaintiff appealed to the Appellate Division, asserting two points of error. First, he argued that the trial court's molding of the verdict was incorrect. Specifically, Blazovic asserted that the Act mandates apportionment of fault among all parties to an injury, and that Plantation should have received a credit calculated on the basis of the settling defendants' percentage of fault. However, because no percentage of fault had been allocated to the intentional tortfeasors, plaintiff concluded that Plantation was responsible for the seventy percent of the fault attributed to it by the jury, less a pro tanto reduction for the $21,750 plaintiff had received from the settling tortfeasors. Second, Blazovic argued that the trial court had erred in not assessing prejudgment interest against Plantation.
In an unpublished opinion, the Appellate Division modified the trial court's judgment. The majority held that the jury verdict was incomplete because the jury did not apportion a percentage of fault to the intentional tortfeasors. The court determined, however, that because the parties had not requested apportionment, they had waived their right to a jury trial on that issue. Consequently, the court apportioned fault through a two-step process. First, the court determined that because the intentional tortfeasors had acted in a "concerted and conspiratorial" manner, their fault should be considered collectively in relation to that of Plantation. Second, the court determined that the injuries to plaintiff were "indivisible and * * * incapable of any reasonable or practical division," and therefore
assessed fifty percent of the fault to Plantation and fifty percent to the intentional tortfeasors as a group. Consequently, the court calculated Plantation's liability by subtracting $22,500 -- plaintiff's thirty-percent allocation of fault -- from $75,000 -- Plantation's fifty-percent share of the $150,000 verdict -- resulting in a total judgment of $52,500. The court affirmed the trial court's decision denying prejudgment interest against Plantation and vacated the judgment assessing prejudgment interest against Midland. The Appellate Division permitted plaintiff to reassert that claim for prejudgment interest either administratively or against Midland's receiver. That issue is not before us in this appeal.
The dissenting member, Judge Landau, agreed with the majority to the extent that it reversed the trial court's pro rata apportionment of fault. However, the dissent asserted that the "unique circumstances" warranted a re-examination of "previous attempts to harmonize the policies of comparative negligence with the equitable and statutory underpinnings of contribution among tortfeasors." The dissent reasoned that in cases where a commercial proprietor breaches its duty to maintain safe premises, the plaintiff should not be precluded from recovering the full consequences of the proprietor's negligence:
Those consequences are expressed by taking the damages from the assault and subtracting any recovery against the assaulters. If this technique is not employed, then the results in cases like Butler [v. Acme Markets, Inc., 89 N.J. 270 (1982)] could readily be undone. A negligent property owner need only join the known or unknown "John Doe" assailants as third-party defendants. Clearly the assailants' paramount, and probably exclusive, responsibility for the victim's beating will be reflected in the jury's percentage allocation of fault. Thus, under the newly amended Comparative Negligence law, N.J.S.A. 2A:15-5.3, the injured party would be left to his dubious remedy against unknown assailants. In this case, only the majority's independent, but not legally predictable, declaration that the assailants should be grouped as one tortfeasor prevented a result which would have diluted the victim's recovery by the number of assailants. Had more people assaulted him, he would have recovered even less from Plantation because of the pre-trial settlements.
Recognizing that its approach might unfairly penalize Plantation, the dissent urged a limited exception to the State's indemnity doctrine, which prevents indemnity among joint wrongdoers.
The dissent reasoned that an exception is warranted where a defendant's negligence consists only of failing to secure adequately against the independent intentional wrongdoing of third parties that results in injury to a plaintiff.
Plaintiff appealed to this Court as of right. R. 2:2-1(a)(2). Plantation filed a notice of cross-appeal and a petition for certification, advancing issues relating to the molding of the verdict not addressed by the dissent. We granted certification, 121 N.J. 611 (1990).
The adoption of the Comparative Negligence Act in 1973 reflected a legislative decision to ameliorate the harsh results that accompanied the common-law doctrine of contributory negligence. Ostrowski v. Azzara, 111 N.J. 429, 436 (1988). Under the earlier scheme, a negligent plaintiff was precluded from any recovery even when the plaintiff's negligence was substantially less than the defendant's. Maccia v. Tynes, 39 N.J. Super. 1, 7 (App. Div. 1956).
In a concurring opinion foreshadowing the Act's adoption, Justice Francis noted that
the rule that contributory negligence is a complete bar to recovery was imported into the common law by judges. Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to visit an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves ...