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Apportionment of Fault to Public Entities =
Fairness for Joint Defendants
by Cherylee O.
Melcher
Under the Tort Claims Act (TCA),
a public entity or a public
employee cannot be held liable for
personal injury damages unless the
plaintiff sustained a permanent injury
as defined by the TCA. According to
the TCA, damages will only be awarded
against a public entity if the plaintiff
can prove that he or she sustained a
permanent loss of bodily function or
permanent disfigurement that is substantial
and incurred medical expenses
of at least $3,600. On the other hand,
unlike a public entity, a private individual
is subject to liability without having
the plaintiff meet such a threshold and
demonstrate the severity of his or her
injuries. With these different standards
in place for a public entity and a private
individual, one must ask what the
impact is when a plaintiff’s injuries are
caused jointly by a public entity and a
private individual.
Competing Standards Effecting Liability
Recently, the Appellate Division
addressed this issue in Bolz v. Bolz, as
it focused on the interplay of the TCA,
the Joint Tortfeasors Contribution Law
(JTCL), and the Comparative Negligence
Act (CNA) when a plaintiff
sustains injuries in an automobile
collision between a private automobile
and an automobile owned by a public
entity and driven by a public employee.
In Bolz, the plaintiff was a passenger
in a private automobile and sustained
a wrist fracture and neck and back
injuries when a tractor trailer, owned by
a public entity and operated by a public
employee, backed into the vehicle in
which plaintiff was a passenger. At
the trial level, the judge instructed the
jury that different standards applied to
determine the liability of each driver:
the plaintiff had to prove that the
private, “host” driver was negligent and
allegedly caused a “permanent injury”
under the verbal threshold, while the
plaintiff had to show that the public
entity defendant was negligent resulting
in a “substantial permanent injury”
under the TCA. The jury concluded
that the plaintiff sustained a permanent
injury, but not a substantial permanent
injury; thus, the jury did not address
the question of comparative negligence,
and a verdict was entered only
against the private defendant for the
full amount of the award. The private
defendant appealed, contending that
he was deprived of a determination of
whether the public entity’s negligence
was a proximate cause of the accident
and, if so, to what percentage.
In all negligence actions (including
an automobile accident) where
liability is disputed, the CNA provides
that the trier of fact (usually the jury)
shall place a total value on the injured
party’s damages and assess the percentage
of negligence or fault of each party
involved. The allocation of a percentage
of fault is imperative because the
CNA states that if a party is found to
be at least 60% at fault, the plaintiff
can recover the full amount of damages
from that party. However, if a party is
found to be less than 60% at fault, the
plaintiff can only recover the percentage
of damages directly attributable to that
party’s negligence. Furthermore, the
underlying purpose of the JTCL is to
promote the fair sharing of the burden
of judgment by joint tortfeasors.
Construing the three key statutory
schemes together (the CNA,TCA,
and JTCL), the Appellate Division
concluded in Bolz that, although a
public entity is not liable to pay damages
unless the plaintiff sustained a
“substantial permanent injury” as
defined by the TCA, the public entity
remains a party whose liability must be
apportioned under the CNA. A public
entity, similar to a private individual,
can be a “tortfeasor” if found to have been negligent, which negligence is a
proximate cause of plaintiff’s injuries.
Thus, even if the public entity may not
ultimately be responsible for a judgment
(because a plaintiff’s injuries do
not meet the threshold standard of the
TCA), apportionment of fault must be
assessed in order to protect the private
individual from bearing the full weight
of a judgment if he or she is less than
60% at fault.
Ensuring Fairness for
Joint Defendants
As guidance, the Appellate Division
has provided some instruction on how
cases where liability is at issue between
a private and a public defendant should
proceed. With respect to each defendant,
two separate questions should be
asked: (1) was this defendant negligent;
and (2) if so, did the negligence proximately
cause plaintiff’s damages? If
more than one defendant was negligent
and the negligence proximately caused
the damages, a third question must be
asked to assess the percentage of fault
attributable to each defendant. Thereafter,
the final question of whether a
plaintiff established a substantial permanent
injury proximately caused by
the public entity should be presented.
If necessary, a party may also present
separate categories of damages, i.e.
pain and suffering, economic loss, etc.,
prior to fixing the amount of damages.
This process will ensure that the end
result will be consistent with competing
statutes such as the TCA, CNA, and
the JTCL, and that defendants are only
held accountable for their respective
share of liability.
The litigation attorneys at Hill
Wallack LLP are experienced in handling
complex litigation involving both
public and private entities and employees.
Please feel free to contact us should
you have the need to discuss any issues
relating to a civil matter.
Cherylee O.
Melcher is an associate
of Hill Wallack LLP in the Princeton
office where she is a member of the Litigation
Division and Trial & Insurance
Practice Group.
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