On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-8925-04.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. L. Miniman.
In this appeal we examine the combined effect of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3; the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5; and the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1 to -5.17, when there is a collision between a private automobile and an automobile that is owned by a public entity and driven by a public employee. We hold that, despite the fact that a public entity is not liable to pay damages unless plaintiff sustained a permanent injury as defined in the TCA, both drivers are deemed "tortfeasors" if they are found to have been negligent and their negligence was a proximate cause of the accident. Therefore, allocation or apportionment of each driver's negligence or fault must be assessed, even if there is a possibility that the public entity may not be liable for damages. Put a different way, although no damages can be awarded against a public entity or employee for pain and suffering if the injuries caused by an accident do not meet the threshold set by the TCA, the public employee is, nonetheless, a tortfeasor pursuant to the JTCL and the CNA and this affects the judgment against the private tortfeasor.
Defendant, Joseph A. Bolz (Bolz), appeals from a judgment entered following a jury trial in favor of Anna I. Bolz (plaintiff) for $75,000 plus prejudgment interest, a judgment of no cause of action in favor of public entity defendants City of Englewood (Englewood) and Favian E. Herrera, and a judgment against Bolz on a cross-claim for contribution.
These are the salient facts. On May 10, 2004, plaintiff was a passenger in an automobile owned and operated by Bolz. As Bolz was driving on South Van Brunt Street he saw a tractor-trailer, owned by Englewood and operated by its employee, Herrera. Bolz stopped his automobile and waited while Herrera backed up. The tractor-trailer struck Bolz's automobile, causing injury to plaintiff.
Plaintiff sued Herrera and Englewood. The public entities answered and joined Bolz as a third party. Subsequently, plaintiff filed an amended complaint joining Bolz as a defendant. She requested the following relief as to all defendants:
As a result of the aforesaid acts of negligence and carelessness of the Defendants, jointly, severally, or in the alternative, the Plaintiff, Anna I. Bolz was severely injured, disabled and disfigured; including a comminuted fracture of the proximal left tibia*fn1 , suffered and will suffer in the future great pain and torment, both mental and physical; and was and will be prevented from attending to her usual duties for a long period of time. . . .
Alan Miller, M.D., an orthopedist, testified for plaintiff. He opined that plaintiff sustained a wrist fracture resulting in decreased range of motion of the wrist, as well as neck and back injuries.
At trial, the attorney for Herrera and Englewood acknowledged in his summation that Herrera was negligent. Based on that, the judge directed that the jury find that Herrera and Englewood were negligent. Plaintiff drafted the following proposed jury verdict sheet with respect to the remaining disputed issues:
2. Was defendant, Joseph Bolz, negligent in the operation of his motor vehicle?
IF YOUR ANSWER TO EITHER QUESTION NO.1 OR NO.2, OR BOTH IS "YES", PROCEED TO THE NEXT QUESTION.
IF YOUR ANSWER TO BOTH QUESTIONS NO.1 AND NO.2, ARE "NO", CEASE YOUR DELIBERATIONS, AND RETURN YOUR VERDICTS.
3. Has Plaintiff, Anna Bolz, proven by a preponderance of the credible evidence that she sustained a substantial permanent injury, that was proximately caused by defendant, Favian Herrera (and the City of Englewood)?