New Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive Tortfeasors

Newark, N.J. (March 21, 2022) - Late in 2021, the Supreme Court of New Jersey addressed the issue of allocating damages in personal injury cases in which the plaintiff asserts claims against successive tortfeasors, such as medical malpractice in the treatment of a slip and fall injury caused by negligence. The decision in Glassman v. Friedel, 249 N.J. 199 (2021) overruled and replaced the long-held principles established in Ciluffo v. Middlesex General Hospital, 146 N.J. Super. 478 (App. Div. 1977) regarding successive liability. Ciluffo held that, when an initial tortfeasor settles before trial, the non-settling defendants in a successive tort were entitled to a pro tanto credit for the settlement amount against any damages assessed against them. The Superior Court of New Jersey Appellate Division in 2020, and the Supreme Court of New Jersey last year, abandoned that framework for one more consistent with statutory contribution law in the Garden State.

In Glassman v. Friedel, 465 N.J. Super. 436 (App. Div. 2020), the Appellate Division held that the application of the principles in Ciluffo in a negligence case has no support in modern jurisprudence, thus limiting its application. It rejected the holding in Ciluffo in light of the state legislature’s enactment of the Comparative Negligence Act, which requires juries to apportion damages between successive events and apportion fault among the parties responsible for each event. The appellate division went on to hold that a non-settling, successive tortfeasor may present proofs at trial as to the negligence of the settling tortfeasor, and that the burden of proof as to the initial tortfeasor’s negligence being the proximate cause of the second causative event indeed lies on the non-settling defendant. In sum, the appellate division in Glassman established steps the jury can use to determine successive tortfeasor liability, but largely treated it as one, attenuated incident.

This decision was appealed to the Supreme Court of New Jersey, where the legitimacy of the Ciluffo standard was examined yet again. The court agreed with the appellate division that the Ciluffo credit does not further the legislative intent of the Comparative Negligence Act, but then modified the suggested approach to be more in line with such cases’ treatment in the Third Restatement of Torts, §26, the Comparative Negligence Act, and the evolution of the jurisprudence surrounding the Act since its promulgation in 1972.

Thus, in cases where successive incidents combine for a total injury, and the defendants responsible for one of those successive incidents settle, the finder of fact is required to determine the amount of damages to assess to the first, independent source of injury. Then, the same is done for the second source of injury (and presumably each additional source, if there are more than two.) The non-settling defendants would then be liable for their proportionate share – as decided by the jury pursuant to the Joint Tortfeasors Contribution Law – of the injury for which they are responsible.

Notably, once the damages for the settled injuries are set, the case proceeds as if the other injury never occurred: the non-settling defendants are treated exactly as they would be if there was only the single injury for which they were responsible. The authors of the Restatement refer to the individual incidents as “component parts.” As the court noted in Glassman, the procedure “does not make a plaintiff or a defendant responsible for damages that a person did not cause, and it apportions liability among persons causing any component part according to that person’s comparative share of responsibility.” See Third Restatement of Torts, §26, cmt. d.

The model jury charge for successive tortfeasors includes additional protections for non-settling defendants. For example, a plaintiff who previously asserted in their complaint or discovery that the settling tortfeasor was negligent may not then take the opposite position at trial with the successive tortfeasor. A plaintiff may, however, urge the jury to apportion only a small component of the damages – or none at all – to the settling causative event.

While New Jersey has abandoned the decades-old tradition of applying pro tanto credits in successive tort cases, seasoned practitioners will find the Glassman approach to be more familiar than perhaps they first expect. Counsel for plaintiffs and defendants alike are sure to be tuned in to the issues of apportionment and double recovery as they approach trial.

For more information on this development, contact the authors of this alert. Visit our General Liability and National Trial Practice pages for additional alerts in this area.

Authors:

Thomas Regan, Partner

Karley Kamaris, Associate