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Brodsky v. Grinnell Haulers

August 10, 2004

GLORIA BRODSKY, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF BERNARD BRODSKY, AND DAWN BRODSKY-SERAFIN, JILL WRIGHT AND COREY BRODSKY, CHILDREN, PLAINTIFFS-APPELLANTS,
v.
GRINNELL HAULERS, INC. AND JOHN BENNETT, DEFENDANTS-RESPONDENTS, AND WILLIAM HORSMAN, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 362 N.J. Super. 256 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether, under the Comparative Negligence Act (Act), N.J.S.A. 2A:15-5.1 to -5.8, a defendant who has been dismissed from a case as a result of a bankruptcy discharge is still a"party" to whom a percentage of fault may be allocated. The Court considers also whether a trial court may give an ultimate outcome charge to a jury explaining the implications of apportionment of fault among joint tortfeasors under the Act, and whether counsel is permitted in opening or closing arguments to assert the specific percentages of fault that should be attributed to the parties.

In February 1998, defendant John Bennett was driving a tractor-trailer owned by defendant Grinnell Haulers, Inc. (collectively, Grinnell) when he changed lanes and crashed into a vehicle occupied by Bernard Brodsky and his wife, Gloria. The Brodskys' car skidded out of control and came to rest facing oncoming traffic with the front end straddling the left shoulder of the road and the rear extending into the left lane. The Brodskys stepped from their disabled car. A few minutes later, William Horsman was driving in the far left lane of the highway when two cars in front of him swerved into the right lane. Horsman observed the Brodskys' vehicle directly in front of him, but was unable to change lanes because there were cars to his immediate right. Despite hitting his brakes, Horsman slammed into Mr. Brodsky and then into the disabled vehicle, which struck Mrs. Brodsky and threw her into a concrete divider. Mr. Brodsky died a short time later. Mrs. Brodsky suffered injuries.

A complaint was filed against Horsman and Grinnell. Grinnell filed a cross-claim against Horsman. Horsman, who was uninsured at the time of the accident, did not file an answer. Instead, he filed a bankruptcy petition, identifying the Brodskys as potential judgment creditors. The bankruptcy court issued an order discharging Horsman from any debt arising from the accident.

The trial court granted summary judgment in favor of the Brodskys on the issue of liability and dismissed all claims and cross-claims against Horsman as a result of the bankruptcy court's discharge order. At trial, there was no dispute concerning negligence. The only issues submitted to the jury were the extent of the Brodskys' damages and the apportionment of fault between Grinnell and Horsman (even though any judgment against Horsman was uncollectable). During opening arguments, the Brodskys' attorney suggested to the jury that Horsman's responsibility in the case was five or ten percent. The trial court sustained Grinnell's objection and gave a curative instruction. The trial court also gave an"ultimate outcome charge" consistent with the Model Jury Charges, which explained that a defendant found to be sixty percent or more responsible for the total damages is liable to the plaintiff for the total amount of the award and that less than sixty percent responsibility would result in a defendant being liable only for the amount of damages directly attributable to the defendant's fault or negligence. The jury found Grinnell sixty percent negligent and Horsman forty percent negligent and awarded the Brodskys $1,640,000 in damages. The trial court denied Grinnell's motion for a new trial and remittitur.

The Appellate Division found that the trial court erred in giving an ultimate outcome instruction to the jury and reversed and remanded for a new trial on apportionment of damages. 362 N.J. Super. 256 (2003). The panel affirmed both the trial court's ruling allowing fault to be apportioned to the bankrupt Horsman and its ruling barring the Brodskys' counsel from suggesting in his opening statement the specific percentage of fault to be allocated to Horsman.

HELD: Under the Comparative Negligence Act (Act), N.J.S.A. 2A:15-5.1 to -5.8, the trier of fact must determine the percentage of fault or negligence of a party dismissed from a negligence action following that party's discharge in bankruptcy. However, the trial court's ultimate outcome instruction in this case was prejudicial to defendants because it may have led the jury to its finding of a forty-sixty allocation, shifting the percentage of fault to assure plaintiffs a full recovery of their damages. Finally, counsel may argue the degree of fault to be attributed to a party, provided there is some evidence in the record to support the argument.

1. Under New Jersey's modified comparative negligence system, a plaintiff who is found to be more than fifty percent at fault is entitled to no recovery, whereas a plaintiff who is found to be fifty percent or less at fault is entitled to a recovery but any award of damages is diminished by the percentage of negligence attributed to him or her. If more than one defendant is found negligent, the trier of fact must determine the amount of damages suffered by the plaintiff and each party's percentage of negligence. Based on the percentage of fault attributed to each party, the trial court then molds the judgment and computes the amount of damages owed by each defendant. A plaintiff is entitled to recover the full amount of the damages from a defendant found to be sixty percent or more at fault. A plaintiff, however, may recover only that percentage of damages directly attributed to a defendant found to be less than sixty percent at fault. A defendant who pays more than his share of an award is entitled to seek contribution from the other joint tortfeasors for the amount he has overpaid. (Pp. 6 - 7).

2. Neither the plain language of the Act nor the legislative history addresses how to apportion fault when a"party" has received a bankruptcy discharge and been dismissed from the case before the commencement of trial. This Court determined previously that, under the Act, the trier of fact must allocate the percentage of fault among settling and non-settling defendants to enable the court to calculate the percentage attributable to the non-settlers, and held that a non-settling defendant should not be accountable for the percentage of fault of a settling defendant. Implicit in the Court's construction of the Act in those cases was its recognition that a defendant who settles and is dismissed from the action remains a"party" to the case for the purpose of determining the non-settling defendant's percentage of fault. Also relevant are cases in which the Appellate Division held that the Act required the trier of fact to allocate a percentage of fault to a defendant who had been dismissed from a medical malpractice case because of plaintiff's failure to timely serve an affidavit of merit, and cases involving the"empty chair" defense in which a defendant is allowed to prove that a non-party was the sole proximate cause of the plaintiff's harm. (Pp. 8 --17).

3. Noting that a plaintiff or defendant seeking contribution will be unable to collect from a joint tortfeasor who receives a bankruptcy discharge after the trial, regardless of the jury's apportionment of fault, the Court declines to carve out an exception for situations in which the joint tortfeasor's case is dismissed before trial because of a bankruptcy discharge. The Court holds that the trier of fact must determine the percentage of fault or negligence of a party dismissed from a negligence action following that party's discharge in bankruptcy. Here, if the jury finds Horsman forty percent negligent or less, the Brodskys can pursue a full recovery from Grinnell. If Horsman is found to be more than forty percent negligent, then the Brodskys can collect from Grinnell only the percentage of fault allocated. (Pp. 17--18).

4. In respect of the trial court's"ultimate outcome charge," the Court agrees with the Appellate Division that this case is not governed by Roman v. Mitchell, 82 N.J. 336 (1980). Although this Court approved the charge in Roman, the provisions of the Act at issue in that case dealt with how a jury determines liability between a plaintiff and a defendant. In this case, however, the statutory provisions deal with how a jury apportions fault among joint tortfeasors. An ultimate outcome charge explaining how the Act operates between joint tortfeasors will not advance any of the legislative purposes of the Act. The Act calls for the jury to make a good-faith allocation of the percentages of negligence among joint tortfeasors based on the evidence -- not based on the collectability or noncollectability of a judgment. The instruction in this case was irrelevant to the jury's function of apportioning percentages of fault and determining damages. The instruction also was prejudicial to Grinnell because it may have led the jury to the forty-sixty allocation, shifting a percentage of fault from Horsman to Grinnell in order to assure the Brodskys a full recovery of their damages. The Court affirms the Appellate Division in respect of the charge and remands for a new trial on the allocation of fault between Grinnell and Horsman. (Pp. 18 to 26).

5. In respect of the opening argument by the Brodskys' counsel that Horsman's responsibility was five or ten percent, the Court holds that in cases arising under the Act, counsel may argue the degree of fault that should be ascribed to a party, providing there is some evidence in the record to support the argument. This was a typical negligence case with ample testimony of the parties' respective degrees of fault. The jury was in the best position to determine whether the evidence supported counsels' arguments. Because the jury must determine the degree of fault of the parties, the Court sees no reason why that subject should be off-limits to the argument of counsel. (Pp. 27 -- 35).

6. The Court affirms the judgment of the Appellate Division reversing the trial court's determination on the apportionment of damages and remands for a new trial consistent with this opinion. The Court leaves untouched the jury's award of damages. All that remains is to apportion those damages between Grinnell and Horsman. (P. 35).

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the matter is REMANDED for a new trial.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICES LONG and VERNIERO did not participate.

The opinion of the court was delivered by: Justice Albin

Argued March 1, 2004

In this wrongful death, automobile negligence case, a jury returned a verdict in favor of plaintiffs, finding defendants sixty percent negligent and the bankrupt tortfeasor dismissed before trial forty percent negligent. The Appellate Division reversed the verdict on apportionment of damages only and remanded for a new trial on that issue. This case raises three significant issues arising under the Comparative Negligence Act. First, whether the Act permits a jury to assign a percentage of fault to a joint tortfeasor dismissed from the case due to a discharge in bankruptcy. Second, whether a trial court may give an ultimate outcome charge to a jury explaining the implications of apportionment of fault among joint tortfeasors under the Act. Last, whether counsel is permitted in an opening or closing argument to state the specific percentages of fault that should be attributed to the parties.

I.

The essential facts are not in dispute. On February 16, 1998, at approximately 6:15 a.m., defendant John Bennett was driving a forty-eight-foot tractor-trailer owned by defendant Grinnell Haulers, Inc. on a four-lane expanse of Route 80 when he changed lanes and crashed into a vehicle occupied by Bernard Brodsky and his wife, Gloria. The Brodskys' car skidded out of control and came to rest facing oncoming traffic with the front end straddling the left shoulder of the road and the rear extending into the left lane. The Brodskys stepped from their disabled car.

A few minutes later, William Horsman was driving in the far left lane of the highway when two cars in front of him swerved into the lane immediately to their right. Horsman observed the Brodsky vehicle directly in front of him, but was unable to change lanes because there were cars to his immediate right. Despite hitting his brakes, he slammed into Mr. Brodsky and then into the disabled vehicle, which struck Mrs. Brodsky, throwing her into a concrete divider. Both Mr. and Mrs. Brodsky suffered multiple, devastating injuries and were taken to St. Joseph's Hospital and Medical Center. Mr. Brodsky died a short time after his arrival at the hospital. Gloria, his wife of forty three years, survived, but is expected to suffer permanently from her injuries.

On her own behalf, Mrs. Brodsky filed a personal injury negligence action, and, on behalf of her husband's estate, she filed a survival action against Horsman and defendants, Bennett and Grinnell Haulers. Mrs. Brodsky and her three children also filed a wrongful death action against those parties. Defendants filed an answer to the complaint and a cross-claim against Horsman. Horsman, who was uninsured at the time of the accident, did not file an answer. Instead, he filed a bankruptcy petition in the United States Bankruptcy Court, identifying the Brodskys as potential judgment creditors. The bankruptcy court issued an order discharging Horsman from any debt arising from the accident.

The trial court granted summary judgment in favor of plaintiffs on the issue of liability and dismissed all claims and cross-claims against Horsman as a result of the bankruptcy court's discharge order. At trial, there was no dispute concerning defendants' negligence or plaintiffs' lack of negligence. The only issues submitted to the jury were the extent of plaintiffs' damages and the apportionment of fault between defendants and Horsman (even though any judgment against Horsman was uncollectable).

The jury found defendants sixty percent negligent and Horsman forty percent negligent, and awarded plaintiffs $1,640,000 in damages. The trial court denied defendants' motion for a new trial and remittitur. Defendants appealed and plaintiffs cross-appealed. The Appellate Division found that the trial court erred in giving an ultimate outcome instruction to the jury and reversed and remanded for a new trial on apportionment of damages. Brodsky v. Grinnell Haulers, Inc., 362 N.J. Super. 256, 262, 284 (App. Div. 2003). The Appellate Division affirmed both the trial court's ruling allowing fault to be apportioned to the bankrupt Horsman and its ruling barring plaintiffs' counsel from suggesting in his opening statement the specific percentage of fault to be allocated to Horsman. Id. at 263, 277. We granted plaintiffs' petition for certification. 178 N.J. 374 (2003).

II.

In the trial of a multi-defendant negligence action, the trier of fact must apportion fault among the parties it finds negligent by assigning each a percentage of fault on a scale of one to one hundred. N.J.S.A. 2A:15-5.2a. We must decide whether the trial court properly allowed the jury to assign a percentage of fault to Horsman 23af a party dismissed from the case before trial as a result of his discharge in bankruptcy.

Plaintiffs argue that although Horsman was a named defendant in the complaint, he was no longer a party by the time of trial and, therefore, was not a "party" for the purpose of fault allocation under the Comparative Negligence Act. Plaintiffs press that argument because the ...


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