Under New Jersey law, N.J.S.A. 2A:15-5.1 (the Comparative Negligence Act), for a lawsuit based upon negligence claims, juries are allowed to apportion fault for an accident to multiple parties and assign liability in terms of a percentage of fault to each party. What happens if a plaintiff is assessed a percentage of fault for the accident? As long as a plaintiff is not determined to be more than 50% at fault, the plaintiff can recover damages for their injuries but at a reduced amount based upon their percentage of fault.
If the jury determines that both the defendant (or defendants) as well as the plaintiff, are liable for the accident, it must assess each party’s responsibility, which has to add up to 100%. (N.J.S.A. 2A:15-2). If a plaintiff is determined to be no more than 50% at fault, any monetary award made by a jury in favor of the plaintiff would be reduced by that percentage assessed against the plaintiff. As an example, if the jury found that both the plaintiff and the defendant were each 50% liable and awarded the plaintiff $100,000 in damages, the verdict would be molded so that the plaintiff’s net recovery would be $50,000. Using this same example, however, if the plaintiff is assessed to be 51% negligent, the plaintiff would recover $0 in damages.
So what happens if there is more than one defendant and each defendant is assessed a portion of fault? From whom can the plaintiff collect? Under N.J.S.A. 2A:15-3, a plaintiff can only recover the percent damage award assessed against that defendant – unless the defendant is found to be at least 60% at fault. Using my example above, if there are two defendants (and assuming no comparative negligence is assessed against the plaintiff) and each defendant is found to be 50% responsible for the accident, then the plaintiff can only recover 50% of the award from each defendant ($50,000 each). However, if liability is assessed 60% against one of defendant and 40% against the other defendant, then the plaintiff can proceed to collect the entire $100,000 award against the defendant who was found to be 60% negligent.
There is an exception to this rule for public entities (i.e., municipalities, counties, public boards, and the State). Negligence claims against public entities are governed by the New Jersey Tort Claims Act (N.J.S.A. 59:1, et seq.) According to N.J.S.A. 59:9-3.1, public entities shall be liable for no more than their share of damages equal to the percentage of the negligence attributable to that entity. Hence, regardless of the percentage of liability assessed against a public entity for negligence in causing or contributing to an accident, a plaintiff is limited to collecting only that percentage of fault assessed against that entity.
Now what happens when a plaintiff does collect the whole award from one defendant because one of the defendants is found to be at least 60%? That’s when contribution rights can kick in. With the filing of their answer, defendants can assert a cross-claim for contribution and/or indemnification pursuant to Rule 4:7-5. Actually, defendants have 90 days after service upon the complaint upon them or upon the party against whom the cross-claim is asserted, whichever is later, to file a cross-claim against that defendant. After that time period, the defendant would have to file a motion and ask the court for permission to file the cross-claim. If a defendant does end up paying more than its “share,” it can try to pursue the co-defendant for that defendant’s percentage of fault assessed against the co-defendant.
