APPELLATE DIVISION REQUIRES THE JURY TO DETERMINE WHETHER A PUBLIC ENTITY IS AT FAULT EVEN IF IT IS NOT LIABLE TO PAY DAMAGES

In Bolz v. Bolz, recently decided on May 8, 2008, the New Jersey Appellate Division examined the combined effect of the New Jersey Tort Claims Act (“TCA”), the Joint Tortfeasors Contribution Law (“JTCL”), and the Comparative Negligence Act (“CNA”), when there was a collision between a private automobile and an automobile owned by a public entity and driven by a public employee. The Appellate Division held that, despite the fact that a public entity is not liable to pay damages unless the 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. As a result, 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.

In New Jersey, courts have allowed a jury to apportion fault to a defendant that was previously dismissed from the case.  Brodsky v. Grinnell Haulers, Inc. , 181 N.J. 102 (2004)(a jury was required to apportion fault in a negligence action to a non-party that was dismissed from an action due to bankruptcy); Young v. Latta, 123 N.J. 583 (1991)(trier of fact must allocate the percentage of fault among the settling and non-settling defendants to enable the court to calculate the percentage attributable to the non-settlers); Burt v. W. Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001)(trier of fact can allocate a percentage of fault to a defendant who had been dismissed from a medical malpractice case as a result of the plaintiff’s failure to timely serve an affidavit of merit). In this case, although the defendant remained a party to this action until the close of trial, the same principle applied as the Appellate Division required a jury to allocate fault of all parties before it fixed damages.

This matter arises from an automobile accident that occurred on May 10, 2004. Plaintiff Anna Bolz was a passenger in a vehicle operated by defendant Joseph Bolz. The Bolz vehicle was involved in a collision with a tractor-trailer, which was owned by the City of Englewood and operated by its employee Favian Herrera. As a result of this accident, plaintiff was injured. Plaintiff sued Mr. Herrera and the City of Englewood. The public entities answered and joined defendant Bolz as a third party. Subsequently, the plaintiff filed an amended complaint naming Bolz as a direct defendant.

At the time of trial, counsel for the public entities acknowledged in his summation that they were negligent. However, the verdict sheet required that the jury determine whether the plaintiff suffered a substantial permanent injury in conformance which the TCA before determining comparative negligence. Further, if the jury decided that the plaintiff did not suffer a substantial permanent injury, they were precluded from determining comparative negligence. Ultimately, the jury found both Herrera and Bolz were negligent and that plaintiff’s injuries were proximately caused by this negligence. However, the jury found that the plaintiff did not sustain a substantial permanent injury. As a result, the jury skipped the comparative negligence question and awarded a verdict in the amount of $75,000.00. The trial judge molded the verdict into a judgment against defendant Bolz only.

On appeal, defendant Bolz argued that the jury verdict sheet deprived him of a jury determination as to whether Herrera’s negligence was a proximate cause of the accident. In addition, he argued it deprived him of the jury’s determination of the percentage of Herrera’s responsibility for the happening of the accident.

In reversing the liability judgment against defendant Bolz, the Appellate Division reasoned that New Jersey law strongly favors the apportionment of fault among responsible parties. Verni ex rel. Burstein v. Stevens, 387 N.J. Super. 160, 206 (2006). The Supreme Court has noted that “the guiding principle of our State’s comparative fault system has been the distribution of loss “in proportion to the respective faults of the parties causing that loss.”  Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004). As a result, the Appellate Division  found that defendant Bolz was entitled to have the jury determine each party’s percentage of negligence. It held that clearly Defendant Herrera should be liable for injury caused by his acts to the same extent as a private person subject to any limitation of the TCA.

The importance of this decision cannot be understated. The Appellate Division acknowledges that the TCA limits the award of pain and suffering damages when the injured party has not met the N.J.S.A. 59:9-2 threshold. However, the Appellate Division clearly held that a public employee remains a party when its liability is in dispute for purposes of comparative negligence. Therefore, this decision requires that courts instruct jurors to first determine liability and the percentage of the total negligence or fault that is attributable to each defendant before any determination of damages is made.

Rey O. Villanueva, Esq.