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Brodsky v. Grinnell Haulers

July 21, 2003


On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1580-99.

Before Judges Wefing, Lisa and Fuentes.

The opinion of the court was delivered by: Lisa, J.A.D.


Argued May 29, 2003

This appeal requires us to decide whether an ultimate outcome charge should be given in a civil trial where the plaintiffs were not negligent and the jury's task was to allocate causative fault among joint tortfeasors.*fn1 The trial judge instructed the jury that plaintiffs may recover the full amount of their damages from any defendant found to be sixty percent or more responsible for the total damages, and that a defendant whose share of responsibility is less than sixty percent shall pay only that percentage of the total damages attributable to him.

The jury allocated fault sixty percent against defendant John Bennett and his employer, Grinnell Haulers, Inc. (collectively, defendants) and forty percent against defendant William Horsman.*fn2 Horsman was named as a defendant. Because he was discharged in bankruptcy, however, plaintiffs' complaint and defendants' cross claims against him were dismissed. The jury was nevertheless asked to assess his culpability in the case.

Defendants objected in the trial court to the ultimate outcome charge, and argue on appeal that the trial judge erred in giving it. We agree. We hold that giving the ultimate outcome charge regarding allocation of fault among joint tortfeasors was prejudicial error, requiring reversal and a new trial.

Defendants also argue that the damage verdicts were grossly excessive, requiring a new trial as to damages or, alternatively, a remittitur. We reject this argument and affirm the damage awards. The new trial will be limited to liability issues, including, if both defendants are found liable, allocation by percentage of comparative fault.

Defendants raise several other arguments, which we need not resolve in light of our disposition. They question the wording of some questions on the verdict sheet and the failure to charge"false in one, false in all" and certain motor vehicle violations. These issues will abide the new trial, where, if raised, they will be resolved based upon the evidence presented and the arguments made. Defendants argue that the sixty-forty verdict was so against the weight of the evidence that it constitutes a miscarriage of justice and requires a new trial. This argument is mooted by our determination that error in the jury charge requires a new trial.

Finally, defendants complain of comments by plaintiffs' attorney in his opening statement, suggesting specific percentage allocations the jury should find, and in his closing statement about Horsman's absence, implying, according to defendants, that Horsman was insolvent and uninsured. While these arguments may not provide an independent basis for reversal, we will comment upon them in the course of our opinion.

Plaintiffs cross-appeal, contending the trial court erred in allowing the jury to consider Horsman's comparative negligence. Plaintiffs argue that because their claims against Horsman were discharged in bankruptcy and because Horsman was dismissed from the case, the verdict could not affect Horsman and the jury should not have considered any potential fault on his part. We reject this argument and affirm on the cross-appeal.


This case arises from a motor vehicle accident. At approximately 6:20 a.m. on Monday, February 16, 1998, plaintiff Gloria Brodsky and her husband, Bernard Brodsky, were traveling on Route 80 Eastbound in Paterson, a four-lane expanse. Bernard was driving, and Gloria was in the front passenger seat. The Brodskys were sideswiped by a tractor trailer owned by defendant Grinnell Haulers, Inc., and driven by defendant John Bennett, as Bennett attempted to change from the center left to the center right lane. After the collision, the Brodskys' vehicle skidded out of control and came to rest partially in the left lane, and partially on the left shoulder. Shortly after exiting their vehicle, the Brodskys were struck by William Horsman, who was traveling in the left lane. Horsman claims he observed two cars in front of him quickly swerve into the left center lane. He then saw plaintiffs' vehicle in front of him, but he was prevented from changing lanes to avoid it because there were vehicles to his immediate right. He slammed on his brakes, but hit plaintiffs and their vehicle. This second collision resulted in Bernard's death, and substantial injuries to Gloria. Bennett estimated that"possibly two minutes" transpired between the first and second collisions. Gloria estimated the two collisions were less than five minutes apart.

At trial, defendants' negligence was undisputed, as was plaintiffs' lack of negligence. The only issues tried were defendants' negligence compared to that of Horsman, and plaintiffs' damages. The jury found defendants sixty percent negligent, and Horsman forty percent negligent. The jury awarded total damages $1.64 million.


As we have mentioned, Horsman was uninsured and insolvent. He filed for bankruptcy after the accident and was dismissed from this action prior to trial. He was called as a witness, but was not a party. The judge instructed the jury at the beginning of the trial that they should not concern themselves or speculate why Horsman was not a party. Naturally, to maximize the collectability of any damage award, plaintiffs' trial strategy was to place as much blame as possible on defendants. Conversely, to minimize their exposure, defendants sought to shift as much blame as possible to Horsman.

In his opening statement, plaintiffs' attorney said of Horsman:"[H]e's not here. He's not defended. He doesn't have a lawyer." He further stated,"I'm going to suggest to you that Mr. Horsman's responsibility in this case is a fraction and Mr. Horsman's responsibility in this case may be a small fraction, 5 percent, 8 percent, maybe 10 percent." Defense counsel objected to the specific percentage suggestions and moved for a mistrial. The judge denied the mistrial motion but sustained the objection. The judge gave an immediate curative instruction, admonishing the jury to disregard the specific percentage suggestions and not to consider them in determining percentage allocation, which is solely the province of the jury. We agree that the specific percentage suggestions were improper, and we will discuss the issue further in Part IV of this opinion.

This theme was repeated in plaintiffs' attorney's closing:"[Defense counsel] spent twenty minutes in his closing and said, hey, take a look at Mr. Horsman, the fellow that wasn't here with a lawyer, that couldn't defend himself with a lawyer, take a look at him, let's lay the blame -- on him." This comment crossed the line of propriety by stating that Horsman"couldn't" defend himself with a lawyer. It was obvious to all that Horsman was not a party and not represented in the trial by a lawyer. Thus, any statement to that effect was not prejudicial. But the statement that he"couldn't" defend himself with a lawyer, had the clear capacity to imply that Horsman was uninsured and insolvent. We expect that jurors possess the common knowledge that when someone is involved in a vehicular accident resulting in litigation against them their insurance company furnishes a lawyer to represent them. The jurors would thus be likely to infer that Horsman was uninsured. For the same reason, the jurors would likely glean that Horsman was not a settling defendant. Further, someone who"couldn't" get a lawyer probably could not afford one and was probably not possessed of significant economic means.

The comments were clearly improper, and potentially prejudicial to defendants. It is improper to focus the jury's attention on irrelevant and prejudicial facts, such as a party's financial status or insurance status. Such comments may constitute reversible error. Brandimarte v. Green, 37 N.J. 557, 562-65 (1962); Krohn v. New Jersey Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 481-83 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999); Pickett v. Bevacqua, 273 N.J. Super. 1, 3-5 (App. Div. 1994); Amaru v. Stratton, 209 N.J. Super. 1, 16 (App. Div. 1985). Because of our reversal on other grounds, we need not determine whether this impropriety, of itself, would warrant reversal. However, it played a role in exacerbating the ill effect of the ultimate outcome charge, by reinforcing in the jurors' minds the need to shift sufficient blame to the apparently-solvent defendants if they wanted to assure that plaintiffs would be made whole by their damage award. On retrial, plaintiffs' counsel shall refrain from making such comments.

Defendants claim the trial court erred in issuing an ultimate outcome charge, instructing the jury that a defendant held sixty percent or more responsible would be liable to pay the entire damage award, but, if less than sixty percent, then only for the damages directly attributable to his negligence. As a result of this error, defendants claim they are entitled to a new trial. The charge, given over defendants' objection, stated:

Again, you have to compare their negligence if you find that they're both negligent and both the proximate cause. And I will explain to you the effect of the percentages. The percentage you find will decide the dispute between Bennett and Grinnell and Mr. Horsman regarding the responsibility for the accident. The allocation you make between them will determine how much of the plaintiff's damages each one will pay.

One who is found to be 60 percent o[r] more responsible for the total damages is liable to the plaintiff for the total amount of the award. If one is found to be less than 60 percent responsible for the damages is liable only for the amount of damages directly attributable to his negligence or fault; therefore, you will attribute to Mr. Bennett/Grinnell and Horsman the percentage that describes or measures their contributions to the happening of the accident. [Emphasis added.]

This charge accurately stated the law. N.J.S.A. 2A:15-5.3 now provides:

Except as provided in subsection d. of this section, the party so recovering may recover as follows:

a. The full amount of the damages from any party determined by the trier of fact to be 60% or more responsible for the total damages.....

c. Only that percentage of the damages directly attributable to that party's negligence or fault from any party determined by the trier of fact to be less than 60% responsible for the total damages.

Thus, the issue in this appeal is not whether the charge accurately stated the law. The issue is whether the charge should have been given at all, i.e., whether the jury should have been advised of the legal effects of its factual findings.

In Roman v. Mitchell, 82 N.J. 336 (1980), our Supreme Court held that, in general, a jury should be instructed that the legal effect of holding a plaintiff more than fifty percent negligent would be that the plaintiff recovered nothing. Id. at 345-47. The Court believed such a charge was necessary because of the structure of New Jersey's modified comparative negligence system, under which counterintuitive results could obtain. Id. at 345. See also Weiss v. Goldfarb, 154 N.J. 468, 475-76 (1998) (agreeing with Roman that an ultimate outcome charge is appropriate in order to prevent a jury from operating under a mistaken notion as to how the comparative fault statute operates).

In Roman, the jury fixed the percentage of negligence of the plaintiff at seventy-five percent and that of the defendant at twenty-five percent. Roman, supra, 82 N.J. at 343. The jurors might reasonably believe the plaintiff would receive twenty-five percent of the damages awarded. Id. at 346. However, under New Jersey's modified comparative fault ...

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