TODD B. GLASSMAN, ETC. VS. STEVEN P. FRIEDEL, M.D. (L-2383-18, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 3, 2020
• Docket: A-4042-19T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4042-19T3

TODD B. GLASSMAN, as Executor of the Estate of JENNIFER K. COLLUM- GLASSMAN, deceased, APPROVED FOR PUBLICATION December 3, 2020 Plaintiff-Appellant, APPELLATE DIVISION

v.

STEVEN P. FRIEDEL, M.D., CHARLES W. FARRELL, M.D., LON WEINER, M.D., NATACHA FIELD, R.N., TANYA GOODEN, R.N., CONSTANCE MACKAY, R.N., ANURADHA THALASILA, M.D., and HACKENSACK MERIDIAN HEALTH d/b/a RIVERVIEW MEDICAL CENTER,

Defendants-Respondents,

and

JUANITO'S INC. and KLE PROPERTIES, LLC,

Defendants. ________________________________

Argued September 21, 2020 – Decided December 3, 2020

Before Judges Messano, Suter and Smith. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 2383-18.

Christina Vassiliou Harvey argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Jonathan H. Lomurro, of counsel; Christina Vassiliou Harvey, of counsel and on the brief; Alan J. Weinberg, on the brief).

Jeffrey J. Niesz argued the cause for respondent Steven Friedel, M.D. (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Paul F. Schaaff, Jr., of counsel; Jeffrey J. Niesz, on the brief).

Matthew J. Heagen argued the cause for respondent Charles W. Farrell, M.D. (Grossman, Heavy & Halpin, PC, attorneys; Matthew J. Heagen, on the brief).

Charles C. Koernig argued the cause for respondent Lon Weiner, M.D. (Kaufman Borgeest & Ryan, attorneys; Charles C. Koernig and Jennifer C. Willis, on the brief).

Anthony M. Tracy argued the cause for respondents HMH Hospitals, Corp. d/b/a Riverview Medical Center, Natasha Field, R.N., and Tanya Gooden, R.N. (Ronan, Tuzzio & Giannone, attorneys; Anthony M. Tracy, of counsel and on the brief).

Michael R. Ricciardulli argued the cause for respondent Anuradha Thalasila, M.D. (Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys; Michael R. Ricciardulli, of counsel and on the brief; Jessica J. Mahony, on the brief).

Herbert Kruttschnitt, III argued the cause for respondent Constance Mackay, R.N. (Dughi, Hewit & Domalewski, PC, attorneys; Herbert Kruttschnitt, III, A-4042-19T3 2 of counsel and on the brief; Ryan A. Notarangelo, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In Ciluffo v. Middlesex General Hospital, we adopted a framework for

trial courts to follow in addressing the thorny issues posed when a plaintiff

settles a negligence claim with the original tortfeasor and proceeds to trial

against a medical professional whose subsequent negligent treatment results in

additional injuries and damages. 146 N.J. Super. 476 (App. Div. 1977). In

Ciluffo, the plaintiff injured her neck when she fell down a flight of stairs at a

friend's house. Id. at 479. After examining the plaintiff the next afternoon at

the hospital, the defendant-doctor released her home with a cervical collar and

medication for pain. Ibid. Further review by another doctor of the x-rays

taken at the hospital revealed a fracture of the plaintiff's cervical spine. Ibid.

Treatment of the fracture led to further complications, including the need for

cervical traction, and the onset of blood poisoning and pneumonia. Ibid.

The plaintiff settled her claim with the owner of the premises where she

fell for $30,000. Id. at 480. Based on the evidence, the trial judge determined

that plaintiff failed to prove any complications were causally related to the

delayed treatment of the fracture. Ibid. He also "dismissed [the] plaintiff's

A-4042-19T3 3 claim for added pain and suffering for the period between her release from the

emergency room and the time she reported back to the hospital for further

treatment," concluding "in effect, that the claim for pain and suffering during

the period of less than [twenty-four] hours during which treatment was delayed

would not support a verdict in excess of the $30,000 already paid to plaintiff "

by settlement with the premises owner. Id. at 480–81.

We observed that "[w]hen a plaintiff settles with the first of successive

independent tortfeasors we usually do not know whether that settlement

constituted payment in full for all claims." Id. at 482 (emphasis added). The

initial tortfeasor — the owner of the premises — was "potentially liable for all

the natural and proximate injuries that flow from the initial tort, including the

consequences of medical treatment . . . caused by his wrong." Ibid. (citing

Knutsen v. Brown, 96 N.J. Super. 229, 235 (App. Div. 1967)). However, we

noted that "questions of liability may make [the] plaintiff's recovery from

either tortfeasor uncertain[,]" and "[t]he degree of injury caused by the second

tortfeasor adds another variable." Ibid.

In reversing and remanding for a new trial on liability and damages as to

the doctor, we held that "where [the] plaintiff has settled with the first

tortfeasor and claims that she was not paid for all of her injuries, she is entitled

to have the injuries caused by the successive independent tortfeasor assessed A-4042-19T3 4 and compared with the damages recoverable for all of her injuries ." Ibid.

(emphasis added). In other words, the plaintiff was entitled to have a

factfinder apportion the damages caused by the two events, i.e., her fall and the

delay in treatment.

Our decision then set forth what is the crux of this appeal. We held that

if the plaintiff succeeded in proving the doctor's negligence and damages

caused by the delay in treatment at a new trial, the defendant-doctor was

entitled potentially to a pro tanto credit 1 against any award based on the

plaintiff's prior settlement with the owner of the premises.

If the settlement exceeds plaintiff's total provable damages she would be entitled to no further recovery from [the doctor]. If the settlement exceeds the amount of her provable damages minus the damages caused by [the doctor], the amount of such excess should be credited against the damages assessed solely for the harm caused by [the doctor]. If the settlement is less than the amount of her total provable damages minus the damages caused solely by [the doctor], plaintiff should recover the full amount of damages assessed against [the doctor] alone for the pain and suffering allegedly endured by her during the delay in treatment within the first [twenty-four] hours.

1 "Pro tanto" is defined as "[t]o that extent; for so much[.]" Black's Law Dictionary 1478 (11th ed. 2019). A "pro tanto credit" is "a credit in the amount of the settlement with the settling tortfeasor[.]" Restatement (Third) of Torts: Apportionment of Liability § 16 cmt. c (Am. Law Inst. 2000) (Restatement (Third)). A-4042-19T3 5 [Id. at 482–83 (citations omitted).]

We explained the rationale for awarding a full pro tanto settlement credit to the

defendant-doctor if the plaintiff's settlement exceeded the amount of her total

"provable damages" as determined by the jury, or a partial credit if the

settlement exceeded the difference between the total amount of damages, and

the amount the jury apportioned to the medical negligence:

[N]either tortfeasor in this case has an interest in the claim [the] plaintiff has asserted against the other except that, as here, where two parties commit successive independent torts, one may receive credit for part of the payment made earlier by the other tortfeasor "to avoid duplicating compensation to the plaintiff."

[Id. at 483 (quoting Daily v. Somberg, 28 N.J. 372, 381–86 (1958)) (emphasis added).]

Our decision in Ciluffo did not address the continued viability of a

settlement credit after enactment of the Comparative Negligence Act (CNA),

N.J.S.A. 2A:15–5.1 to -5.8.2 However, since passage of the CNA, the

framework we devised in Ciluffo for potentially awarding the non-settling

tortfeasor a pro tanto credit based upon the plaintiff's settlement with the

original tortfeasor has been accepted, albeit without significant analysis, by

2 The CNA became effective on August 22, 1973, see L. 1973, c. 146, while the events in Ciluffo occurred during April 1972. Id. at 479–80. A-4042-19T3 6 other reported cases. See, e.g., Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super.

108, 119 (App. Div. 2006) ("Ciluffo can be applied in situations, like the

instant matter, where plaintiff is first subjected to a tort that brings him to a

hospital where medical care providers then subject plaintiff to a second,

independent tort."); Mitchell v. Procini, PA, 331 N.J. Super. 445, 456 (App.

Div. 2000) ("[T]o avoid duplicating compensation paid to a plaintiff, the

successive tortfeasor may receive a credit for part or all of the payment made

by the initial tortfeasor." (citing Ciluffo, 146 N.J. Super. at 483)).

None of these cases, however, discussed the continued viability, after

enactment of the CNA, of awarding an adjudicated tortfeasor a pro tanto

settlement credit absent any finding that the initial tortfeasor was culpably

negligent. And, although the Court has cited Ciluffo with approval in other

contexts, see Williamson v. Waldman, 150 N.J. 232, 252 (1997); Evers v.

Dollinger, 95 N.J. 399, 411 (1984); Lynch v. Rubacky, 85 N.J. 65, 80 n.3

(1981) (Clifford & Schreiber, JJ., dissenting), it has never endorsed application

of a pro tanto credit to a successive tortfeasor based on a plaintiff's settlement

with an initial tortfeasor.

Here, plaintiff Todd Glassman, as executor of the estate of his deceased

wife, Jennifer K. Collum-Glassman, sued defendants Juanito's Inc. and KLE

Properties, LLC (collectively, Juanito's), the restaurant and property owner of A-4042-19T3 7 the site where Jennifer fell and fractured her left ankle. 3 Jennifer received

medical treatment for the injury, ultimately "coming under the care" of

defendants Hackensack Meridian Health, d/b/a Riverview Medical Center,

Doctors Steven P. Friedel, Lon Weiner, Charles W. Farrell, Anuradha

Thalasila, and Registered Nurses Natacha Field, Tanya Gooden, and Constance

MacKay (collectively, the Medical Defendants).

In an amended complaint that added the Medical Defendants, plaintiff

alleged their negligence during surgery performed on Jennifer's left ankle five

days after the fall led to post-operative complications and injuries to her right

leg, including weakness, "impaired sensory motor function[,]" "[p]ost-

operative compressive neuropathy," "foot drop," and "[c]ompression of the

distal aspect of the right sciatic nerve and peroneal nerve with sensory

impairment[.]"4

Approximately one month after surgery, and one day before her forty -

sixth birthday, Jennifer died from a pulmonary embolism. At the time of her

death, Jennifer was a special education teacher at a local high school and the

3 To avoid confusion, we use the first name of plaintiff's decedent. We intend no disrespect by this informality. 4 The record before us is scant. We refer, therefore, to the allegations contained in plaintiff's complaint. We are advised discovery continues. A-4042-19T3 8 mother of two teenage sons. Plaintiff contends the Medical Defendants'

negligent treatment resulted in injury to Jennifer's right leg, increasing her

immobility as a result, and that they failed to provide appropriate

"anticoagulation" medications, resulting in the fatal embolism.

Plaintiff settled with Juanito's for $1.15 million. Citing our holding in

Ciluffo, the Medical Defendants filed motions seeking a declaration that they

would be entitled to a pro tanto credit against any potential damage award

based on the formula we explained in that case. Plaintiff opposed the motion

and requested oral argument; however, the judge decided the motions on the

papers, granting the relief. Plaintiff moved for reconsideration, which, after

hearing oral argument, the judge denied.

We granted plaintiff leave to appeal. He argues the judge erred by

deciding a factual issue — whether Juanito's was negligent — which must be

reserved for the jury. In other words, plaintiff contends it was error to grant

the Medical Defendants the possibility of any credit based on the settlement

with Juanito's without proof of Juanito's fault. Additionally, plaintiff argues

that, even assuming Juanito's fault was established, the CNA applies equally to

joint and successive tortfeasors, replaces Ciluffo's formulation and eliminates

the possibility of a pro tanto credit based on the settlement with Juanito's.

A-4042-19T3 9 The Medical Defendants contend that the CNA only applies to joint

tortfeasors, not successive tortfeasors, each of whom, if found negligent, are

only responsible for damages proximately caused by their negligence, and not

damages occasioned by the negligence of the original tortfeasor. Therefore,

the Medical Defendants argue that the potential pro tanto settlement credit

envisioned by Ciluffo's framework must apply to avoid a duplication of

damages and a potential windfall recovery by plaintiff.

Although we find neither set of arguments wholly satisfying, we

conclude that application of a pro tanto settlement credit in a negligence case,

whether it involves joint or successive tortfeasors, is a vestige of the common

law and has no support in our current jurisprudence. We therefore reverse and

vacate the orders under review.

I.

All parties concede this suit involves allegations of negligence by

successive, and not joint, tortfeasors. The essence of the Medical Defendants'

argument is that this distinction compels different results regarding the effect

of plaintiff's settlement with Juanito's on any award of damages proximately

caused by their medical negligence. The contention requires us first to discuss

joint versus successive tort liability, and how those two statuses impact an

award of damages. A-4042-19T3 10 A.

Joint tortfeasors are "'two or more persons [who are] jointly [and]

severally liable in tort for the same injury' . . . and not . . . the cumulative

damages the tort victim sustained as a result of multiple disparate injuries

caused by multiple tortfeasors." Cherry Hill Manor Assocs. v. Faugno, 182

N.J. 64, 75 (2004) (quoting N.J.S.A. 2A:53A-1) (emphasis added). The Joint

Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, "was enacted

to change the injustice of the common law, which permitted a plaintiff to place

the entire burden of fault on one defendant, who was then helpless to shift any

of the responsibility to any other joint defendants." Tino v. Stout, 49 N.J. 289,

298 n.3 (1967); see also Town of Kearny v. Brandt, 214 N.J. 76, 97 (2013)

(noting the JTCL "was enacted to promote the fair sharing of the burden of

judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily

selecting his or her victim" (quoting Holloway v. State, 125 N.J. 386, 400–01

(1991))). Once enacted, the JTCL apportioned any damage award on a pro rata

basis among adjudicated tortfeasors. See Blazovic v. Andrich, 124 N.J. 90,

103 (1991) (noting that under the JTCL, "[a] court determined a tortfeasor's

pro rata share simply by dividing the total verdict by the number of available

tortfeasors, that is, those solvent tortfeasors not beyond the reach of process").

A-4042-19T3 11 However, enactment of the CNA two decades later, working in

conjunction with the JTCL, significantly altered the respective rights of joint

tortfeasors. See Kranz v. Schuss, 447 N.J. Super. 168, 170–71 (App. Div.

2016) (explaining relationship between the two statutes). "[W]hen applied

together, the [CNA and JTCL] implement New Jersey's approach to fair

apportionment of damages among plaintiffs and defendants, and among joint

defendants." Brandt, 214 N.J. at 97 (quoting Erny v. Estate of Merola, 171

N.J. 86, 99 (2002)). The CNA forged the critical link between a joint

tortfeasor's relative fault and its share of damages. See Johnson v. Am.

Homestead Mortg. Corp., 306 N.J. Super. 429, 436 (App. Div. 1997) ("[T]he

effect of the [CNA] was to replace the former pro rata liability of joint

tortfeasors under the [JTCL] . . . with the obligation of each tortfeasor to pay

damages in accordance with its own adjudicated percentage of fault.").

Because of the CNA, a plaintiff may recover the full quantum of

damages from a single tortfeasor only if that party is "determined by the trier

of fact to be [sixty percent] or more responsible for the total damages."

N.J.S.A. 2A:15-5.3(a). Those tortfeasors determined "by the trier of fact to be

less than [sixty percent] responsible for the total damages[,]" are liable "[o]nly

[for] that percentage of the damages directly attributable to that [tortfeasor's]

negligence or fault[.]" N.J.S.A. 2A:15-5.3(c). A-4042-19T3 12 In tandem, the two statutes also altered the effect of a plaintiff's

settlement with one tortfeasor on his or her claim against any remaining joint

tortfeasors and the non-settling defendant's right to contribution. Pursuant to

the JTCL:

[A] settling tortfeasor . . . ha[d] no further liability to any party beyond that provided in the terms of settlement, and . . . a non-settling defendant's right to a credit reflecting the settler's fair share of the amount of the verdict — regardless of the actual settlement — represent[ed] the judicial implementation of the statutory right to contribution.

[Young v. Latta, 123 N.J. 584, 591 (1991) (emphasis added).]

"The pro rata contribution scheme of the [JTCL was] eclipsed by the

percentage-liability formula established by sections 5.2 and 5.3 of the [CNA]."

Id. at 592 (citing Cartel Cap. Corp. v. Fireco of N.J., 81 N.J. 548, 569–70

(1980); Rogers v. Spady, 147 N.J. Super. 274, 277 (App. Div. 1977)).

"Pursuant to the [CNA], the finder of fact must make an allocation of

causative fault between settling and non-settling defendants so that the court

can calculate the amount of the credit due [to] the non-settler even though the

non-settler cannot pursue a claim for contribution against the settler." Ibid.

(citing Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518 (Law Div.

1984)). As Judge Pressler explained:

A-4042-19T3 13 A necessary corollary of this scheme is to deny to comparative-negligence joint tortfeasors a reduction of their liability based on a plaintiff's pretrial settlement with a defendant who is never found to be liable at all. Thus, under the comparative-negligence scheme, a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated among all other defendants.

....

[U]nless the settling defendant's percentage of liability is adjudicated at trial, there is simply no right in the adjudicated tortfeasors to a reduction of their own separately-allocated responsibility for the verdict.

[Johnson, 306 N.J. Super. at 436–37 (emphasis added).]

The CNA therefore significantly altered the landscape that existed after

enactment of the JTCL "as construed by Theobald v. Angelos, 44 N.J. 228

(1965) [Theobald II],5 under which the non-settling defendants were entitled to

a pro tanto credit for the proceeds of the settlement made by plaintiff with the

settling defendant whose liability was never adjudicated." Id. at 436–37; see

also Tefft v. Tefft, 192 N.J. Super. 561, 568 (App. Div. 1983) (noting that the

Theobald II "pro tanto deduction . . . if the settling party is not found to be

5 We discuss both cases in greater detail below.

A-4042-19T3 14 negligent" was "changed with the introduction and interpretation of the

[CNA]" (citing Rogers, 147 N.J. Super. at 277)).

The Medical Defendants do not dispute these basic principles but rather

contend they are inapplicable to situations involving successive tortfeasors. In

other words, despite the CNA's elimination of pro rata and pro tanto credits

among joint tortfeasors in personal injury negligence actions, and replacement

with a credit based solely upon a settling joint tortfeasor's adjudicated

percentage of fault, the Medical Defendant's argue that Ciluffo's calculus still

applies to successive tortfeasors, even if the settling tortfeasor's culpable

negligence was never adjudicated. The Medical Defendants assert a single

reason for the continued vitality of the Ciluffo pro tanto credit, namely,

without it, a plaintiff who settles with the initial tortfeasor might receive a

windfall at trial.

B.

We acknowledge the differences between joint and successive

tortfeasors. In the case of successive tortfeasors, the common law rejected any

notion of joint and several liability and long provided that the first tortfeasor

"is responsible for all damages that naturally and proximately flow from the

initial tort, including the consequences of medical malpractice in treating the

injuries caused by his wrong." New Milford Bd. of Educ. v. Juliano, 219 N.J. A-4042-19T3 15 Super. 182, 187 (App. Div. 1987) (citing Ciluffo, 146 N.J. Super. at 482;

Knutsen, 96 N.J. Super. at 235); accord Williamson, 150 N.J. at 252

("Traditionally, our courts have held that an initial tortfeasor is liable for the

results of the medical treatment of an injured victim." (citing Ciluffo, 146 N.J.

Super. at 482; Knutsen, 96 N.J. Super. at 235)); Doe v. Arts, 360 N.J. Super.

492, 510 (App. Div. 2003) (citing Williamson). See also Restatement

(Second) of Torts § 457 (Am. Law Inst. 1965) (Restatement (Second)) ("If the

negligent actor is liable for another's bodily injury, he is also subject to

liability for any additional . . . harm resulting from normal efforts of third

persons in rendering aid . . . irrespective of whether such acts are done in a

proper or a negligent manner."); Prosser & Keeton on Torts § 44, at 309 (5th

ed. 1984) (collecting cases holding "the defendant liable for the results of

medical treatment of the injured victim[, e]ven where such treatment is itself

negligent").

Although the initial tortfeasor may not seek contribution, a purely

statutory right, from the successive tortfeasor because they are not joint

tortfeasors, it may seek indemnification. In Juliano, after settling the claim of

an injured student, the plaintiffs, a town and its school board, sought

indemnification from non-party doctors who they alleged negligently treated

A-4042-19T3 16 the student, causing amputation of three of her toes. 219 N.J. Super. at 184.

As Judge Skillman characterized the plaintiffs' claim against the doctors:

Plaintiffs do not seek to escape responsibility for their tortious conduct by holding defendant doctors liable for all damages incurred by [the student]. Rather, plaintiffs' claim is limited to the difference between what [the student's] damages would have been if defendants had not committed malpractice and the full amount of damages which she suffered as a result of both the original accident and the subsequent malpractice.

[Id. at 186–87 (emphasis added).]

In recognizing the initial tortfeasor's right to seek indemnification, we noted:

the responsibility of an initial tortfeasor for the additional harm caused by subsequent medical malpractice is less immediate and less direct than the responsibility of the party or parties who have actually committed the malpractice. Indeed, the initial tortfeasor's responsibility for that additional harm can be viewed as a form of constructive or secondary liability.

[Id. at 187.]

Accordingly, we held that "justice require[d] recognition" of the initial

tortfeasor's right to seek indemnification from the successive tortfeasor. Ibid.

In the case of successive tortfeasors, neither party may have any interest

in the plaintiff's claim against the other on the issue of liability. Ciluffo, 146

N.J. Super. at 483. However, each clearly has an interest in paying no more

A-4042-19T3 17 than its fair share of the plaintiff's total damages. We have recognized the

successive tortfeasor's right to limit its damages, even if responsibility for the

initial causative event is not before the factfinder.

In Lewis v. Preschel, the plaintiffs obtained a liability verdict for

malpractice committed in the medical treatment of a broken arm, the result of

an automobile accident. 6 237 N.J. Super. 418, 420 (App. Div. 1989).

Following a damages only trial and judgment in favor of the plaintiffs for over

$800,000, we agreed with the defendant-doctor's argument that "the trial judge

prejudicially restricted [him] . . . from presenting evidence which would have

addressed the extent to which the malpractice, as distinct from the accident -

caused initial injury, contributed to the damages proved[.]" Id. at 420–21. We

reversed and remanded for a new trial on damages, because the jury was not

instructed on the issue of "how much of the damages award was attributable

to . . . malpractice, as distinguished from those damages which would have

arisen even if the reduction and related treatment had not been negligently

performed." Id. at 422–23.

6 Our decision fails to indicate if the car accident was the result of any negligence or the subject of prior litigation. Therefore, strictly speaking, there may not have been successive tortfeasors, although there were clearly successive events that caused the plaintiff's total quantum of injuries and damages. A-4042-19T3 18 C.

Unlike the joint tortfeasor situation where multiple defendants may be

liable for the "same injury," N.J.S.A. 2A:53A-1, a successive tortfeasor is

liable generally only for damages proximately caused by the independent

tortious conduct succeeding the original event. See Restatement (Second) §

433A cmts. b, c (discussing limit on successor tortfeasor's liability when there

are "[d]istinct harms" or "[s]uccessive injuries"). In other words, the issue

may not be one of comparative fault as between the initial and successive

tortfeasor; instead, it is the apportionment of damages between those injuries

proximately caused by the initial tort and those proximately caused by the

successive tort that matters.

We find no support for the Medical Defendants' general proposition that

the CNA has no relevance to actions brought against successive tortfeasors.

By its express terms, the CNA applies to "all negligence actions and strict

liability actions in which the question of liability is in dispute[.]" N.J.S.A.

2A:15-5.2(a). Moreover, the CNA requires the factfinder to determine "the

full value of the injured party's damages[,]" "regardless of any consideration of

negligence or fault[.]" N.J.S.A. 2A:15-5.2(a)(1). The CNA only uses the term

joint tortfeasors in discussing contribution, a right statutorily granted to joint

tortfeasors by the JTCL, and, in the context of social host liability. See A-4042-19T3 19 N.J.S.A. 2A:15-5.3(e) ("Any party who is compelled to pay more than his

percentage share may seek contribution from the other joint tortfeasors.");

N.J.S.A. 2A:15-5.8 (noting that when a "social host . . . is determined to be a

joint tort-feasor, the social host or other party shall be responsible for no more

than th[eir] percentage share of the damages . . . equal to the[ir] percentage of

negligence").

The Court has acknowledged the relevance of the CNA's principles to

situations involving successive tortfeasors. In Campione v. Soden, the

plaintiff was a passenger in a car rear-ended by one driven by the defendant

Jensen. 150 N.J. 163, 168 (1997). While the plaintiff was outside the car

inspecting the damage, a second car rear-ended Jensen's car, crushing the

plaintiff's legs and launching him into the air. Ibid.

Although the cause of [the plaintiff's] leg injuries was undisputed, the source of his back, neck, periodontal, and psychological injuries was vigorously contested. Jensen[] argued that all of those injuries were caused by the second impact, while [the plaintiff] contended that the injuries could not be apportioned between the two accidents.

[Id. at 170.]

While the trial court submitted special interrogatories to the jury, "[t] he

verdict form failed to inquire about the percentage of fault attributable to the

negligence of Jensen[] as a proximate cause of the second impact. A-4042-19T3 20 Additionally, the form did not adequately inform the jury of its responsibility

to attempt to allocate all damages between the two accidents." Id. at 171

(emphasis added). The Court in Campione cited with approval Loui v. Oakley,

438 P.2d 393, 396–97 (Haw. 1968), for the proposition that a jury should

determine "how much of the plaintiff's damages are attributable to each

defendant's negligence[,]" and, if it "is unable to do so precisely, it may make

a 'rough apportionment.'" Id. at 176. Importantly for our purposes, the Court

said:

Although the [CNA] does not specifically address the jury's responsibility in cases involving injuries sustained in successive accidents, we infer that the legislative objective would be achieved by requiring juries to apportion damages between the successive accidents and to apportion fault among the parties responsible for each accident.

[Id. at 184 (emphasis added); see also Kiss v. Jacob, 138 N.J. 278, 284 (1994) (applying "the principles of comparative negligence" derived from the CNA to the jury award of causative fault and damages in a chain reaction collision).]

Our jurisprudence generally favors apportionment of damages.

Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005). See also

Restatement (Second) § 433A (1) ("Damages for harm are to be apportioned

among two or more causes where (a) there are distinct harms . . . ."). The Court in

A-4042-19T3 21 Campione explained the principles the trial court should employ in

apportioning damages for two different "causative events":

At the conclusion of a trial where allocation of damages among multiple tortfeasors is an issue, the trial court is to determine, as a matter of law, whether the jury is capable of apportioning damages. The absence of conclusive evidence concerning allocation of damages will not preclude apportionment by the jury, but will necessarily result in a less precise allocation than that afforded by a clearer record. If the court establishes as a matter of law that a jury would be incapable of apportioning damages, the court is to apportion damages equally among the various causative events. If the court concludes that the jury would be capable of apportioning damages, the jury should be instructed to do so.

[150 N.J. at 184–85 (internal citations omitted).]

D.

We have long recognized that a party's status as a tortfeasor cannot be

presumed simply because the plaintiff settled his or her claim against that

party. See, e.g., Shatz v. TEC Tech. Adhesives, 174 N.J. Super. 135, 145

(App. Div. 1980) ("We see no reason why a settlement should reverse the

ordinary rule that a person is not presumed to be culpable.") (citing Dziedzic v.

St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161 (1969)). As

already noted, the CNA essentially codified this principle because after its

enactment, a non-settling defendant was not entitled to any reduction in its

A-4042-19T3 22 share of a plaintiff's total damages unless it proved the settling defendant's

liability. See Green v. Gen. Motors Corp., 310 N.J. Super. 507, 545–47 (App.

Div. 1998) (holding that the non-settling defendant, "by failing to have the jury

assess the [settling defendant's] percentage of fault," was not entitled to credit

for settlement monies paid); Johnson, 306 N.J. Super. at 437 (holding that

"unless the settling defendant's percentage of liability is adjudicated at trial,

there is simply no right in the adjudicated tortfeasors to a reduction of their

own separately-allocated responsibility for the verdict"); Mort v. Besser Co.,

287 N.J. Super. 423, 431–32 (App. Div. 1996) (noting that a non-settling

defendant could shift a portion of liability to a settling defendant, but "that

liability must be proven"); Young v. Latta, 233 N.J. Super. 520, 526 (App.

Div. 1989) ("[I]f no issue of fact is properly presented as to the liability of the

settling defendant, the fact finder cannot be asked, under N.J.S.A. 2A:15-5.2 or

otherwise, to assess any proportionate liability against the settler."), aff'd, 123

N.J. 584 (1991).

However, the distinction between joint and successive tortfeasors

compels us to reject plaintiff's blanket assertion that the CNA requires an

adjudication of Juanito's fault before the appropriate quantum of damages

could be determined if any Medical Defendant were found to be liable. Under

principles of comparative responsibility embodied by the CNA, a successive A-4042-19T3 23 tortfeasor may, upon adequate proof, seek the factfinder's apportionment of

damages between those proximately caused by its negligence and those caused by

the initial tortfeasor, regardless of whether the initial tortfeasor was adjudged to

have been negligent or whether the initial tortfeasor remains in the case.

Campione, 150 N.J. at 184; see Schwarze v. Mulrooney, 291 N.J. Super. 530,

541 (App. Div. 1996) (collecting cases where, in various factual contexts, the

burden of apportioning damages has been placed upon the defendant). The

successive tortfeasor may seek apportionment of damages even if the initial

tortfeasor is not adjudicated culpably negligent. Lewis, 237 N.J. Super. at 422–

23.

Depending on the facts of the case, when successive torts are involved

and one tortfeasor has settled before trial, issues of comparative fault may

indeed become less significant. Had plaintiff not reached a settlement with

Juanito's, and the case was tried against all defendants, the jury would have to

decide the comparative fault of Jennifer and Juanito's as to the initial fall, and

the quantum of damages associated with the fractured ankle. The Medical

Defendants would unlikely be concerned about the jury's assessment of

comparative fault for the fall, because even if the jury concluded Jennifer was

not entitled to any recovery from Juanito's based on findings of compara tive

fault, her claim against the Medical Defendants would continue, and, if A-4042-19T3 24 successful, the jury would then assess the amount of damages proximately

caused by their negligence.

Generally speaking, we think it is safe to assume that the focus of the

Medical Defendants' defense in this case, and in most other litigation like this,

will be on the issue of their own culpability, and, secondarily, the

apportionment of damages between Jennifer's fall and the care they

administered to her. The jury would first determine whether some or all of the

Medical Defendants were negligent after Jennifer came under their care. If

more than one Medical Defendant was found negligent and a proximate cause

of Jennifer's subsequent injuries, the jury would first assess the comparative

fault of those adjudicated tortfeasors and then assess the total amount of

damages, apportioned between those caused by the fractured ankle and those

caused by the medical negligence. In this regard, any Medical Defendants

found liable would not have to prove Juanito's negligence in order to limit

their potential exposure for proximately caused damages. Indeed, in a scenario

such as this case, where the only defendants remaining are those alleged to

have caused the subsequent injuries, the jury must apportion the total amount

of damages between those caused by the initial injuries, and those caused by

the Medical Defendants' negligence, so that the remaining defendants are not

A-4042-19T3 25 obliged to pay for injuries they did not proximately cause. The relative fault

of the party causing the initial injuries is irrelevant.

There certainly may be other scenarios where a non-settling defendant

chooses to adduce proof of the settling initial tortfeasor's negligence. This

may occur in cases where the non-settling defendant proves that the settling

tortfeasor was negligent and its negligence was a proximate cause of the

second "causative event." See, e.g., Campione, 150 N.J. at 170–71 (noting

dispute as to which event caused which set of damages and the failure of the

trial court's interrogatories to ask the jury to determine whether initial

tortfeasor was a proximate cause of the second collision); see also Mahoney &

Forte, New Jersey Personal Injury Recovery § 15:1-1 (2020) (noting possibility

that "the party who caused the original accident would be a proximate cause of

both the initial pain and suffering and the subsequent malpractice" (citing Juliano,

219 N.J. Super. at 187; Ciluffo, 146 N.J. Super. at 482)).

After the jury apportions the damages caused by each causative event, it

determines the relative fault for each occurrence, and the court molds the

verdict accordingly. The Court envisioned this two-step scenario in

Campione, 150 N.J. at 184; see also Mahoney & Forte, § 15:1-1 (discussing this

"two-step process" "when separate elements of damages are attributable to

different, but related, events"). A-4042-19T3 26 This two-step process has now been adopted by the most recent

Restatement, which provides:

(a) When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts and separately apportions liability for each indivisible component part . . . .

(b) Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:

(1) that any legally culpable conduct of a party or other relevant person to whom the fact-finder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and

(2) the amount of damages separately caused by that conduct.

[Restatement (Third) § 26.]7

"This process effectuates the basic policies of causation and comparative

responsibility[, and] . . . does not make a . . . defendant responsible for

damages that person did not cause . . . ." Id. at cmt. d. As the Restatement

7 We limit our discussion and application of this section of the Restatement (Third) to factual circumstances where, as a matter of law, the jury is capable of apportioning the amount of total damages between each causative event. Campione, 150 N.J. at 484. The Restatement (Third) provides examples of "[e]mploying the two-step process" in various fact patterns. Id. at cmt. c. A-4042-19T3 27 (Third) has noted, "[c]ommentators [have] generally favor[ed] all or part of the

Loui-Campione approach." Id. at notes to cmt. h (citations omitted).

To summarize, the CNA applies to situations involving successive

tortfeasors, but not in the same way it applies to joint tortfeasors. In the context of

successive torts, the CNA helps to achieve the "legislative objective" of

comparative responsibility "by requiring juries to apportion damages

between . . . successive [events] and to apportion fault amount the parties

responsible for each [event]." Campione, 150 N.J. at 184. At trial, a non-

settling successive tortfeasor may not only dispute its negligence and the quantum

of damages it proximately caused, but it may also adduce proof as to the

negligence of the settling tortfeasor, and whether the initial tortfeasor's negligence

was a proximate cause of the second "causative event." The burden of proof is on

the non-settling defendant. Young, 123 N.J. at 597.

We now consider the continued vitality of the Ciluffo pro tanto settlement

credit.

II.

The sole justification for a pro tanto credit provided by Ciluffo was to

eliminate a windfall recovery through a duplication of damage awards to the

plaintiff. 146 N.J. Super. at 483. We consider the continued vitality of this

rationale against the backdrop of what is a well-recognized phenomenon, A-4042-19T3 28 namely the "dramatic impact" of "the nearly universal adoption of comparative

responsibility by American courts and legislatures[.]" Restatement (Third) § 1

cmt. a.

A.

As some commentators have noted, prior to the passage of the JTCL and

the CNA two decades later, New Jersey embraced "what might be termed an

'absolute morality' common law tort recovery system," whereby "a tort

plaintiff needed to be absolutely blameless as a prerequisite to recovery ."

Mahoney & Forte, §1:1-1, p. 2; see also Renz v. Penn Cent. Corp., 87 N.J. 437,

450–57 (1981) (detailing history of common law of contributory negligence in

New Jersey to 1973, and noting that "issues relating to liability in the personal

injury tort field . . . must now be developed and applied in a manner consistent

with the new doctrine, . . . [the CNA]"). "'[A]ny fault kept a claimant from

recovering under the system,' whether that claimant was a plaintiff seeking

compensation from a defendant or one joint tortfeasor looking for contribution

from another." Dunn v. Praiss, 139 N.J. 564, 575 (1995) (quoting Ostrowski v.

Azzara, 111 N.J. 429, 436 (1988)).

A common law corollary was the rule that a plaintiff's release of one

joint tortfeasor automatically operated as a release of all who may have caused

the injury, regardless of the intention of the parties or the sufficiency of the A-4042-19T3 29 plaintiff's recovery. The original rationale for this doctrine was that "the cause

of action[,] which is one and indivisible, having been released, all persons

otherwise liable thereto are consequently released." Adolph Gottscho, Inc. v.

Am. Marking Corp., 18 N.J. 467, 470 (1955) (quoting Salmond, Torts (11th

ed. 1953), 90). Our courts applied this "automatic release" doctrine not only to

joint tortfeasors, but also to successive tortfeasors in situations similar to the

facts in this case. See Knutsen v. Brown, 93 N.J. Super. 522, 536 (Law. Div.

1966) (noting that "[t]he majority of early American cases . . . held that where

plaintiff had released the original tortfeasor, he was barred from an action for

malpractice against treating physicians"), aff'd, 96 N.J. Super. 229 (App. Div.

1967); Adams v. De Yoe, 11 N.J. Misc. 319, 320 (Sup. Ct. 1933) (applying

doctrine to bar the plaintiff's claim against doctor who treated broken arm

suffered in accident when party allegedly causing accident was released by

settlement). "The one-settlement-releases-all rule may [have] be[en] the most

widely and harshly criticized legal rule of all time." Restatement (Third) § 24

notes to cmt. b.

Changes developed. First, in Brandstein v. Ironbound Transp. Co., 112

N.J.L. 585 (E. & A. 1934), the court reasoned that when the plaintiff settled

with one tortfeasor and executed a covenant not to sue instead of a release,

A-4042-19T3 30 granting a pro tanto credit to a non-settling tortfeasor did not violate the

common law prohibition on contribution. The court explained:

It is urged that, inasmuch as there can be no division of responsibility and no enforced contribution as between joint tort-feasors, there can be no application of payments by one or more tortfeasors in diminution of the amount recoverable by suit from another joint tort-feasor. Such argument overlooks entirely the fundamental rule that a person damaged can receive but one satisfaction for his injury. If he has received from one joint wrongdoer satisfaction and executed a release, it is taken to be full satisfaction and releases all jointly liable for the injury. A covenant not to sue one joint tort-feasor does not release other joint tort- feasors. If less than full satisfaction has been received for a covenant not to sue, reason, as well as authority, require that an injured person recover from other joint tort-feasors who are liable for his damage, but that his recovery from all the persons charged with responsibility for his injury be limited to the amount of his damage. Justice and fair dealing commend such rule.

[Id. at 593.]

In Daily, the Court observed that it was "modern and eminently just" to

modify the common law "automatic release" doctrine with respect to

successive torts. 28 N.J. at 383. 8 In Daily, the plaintiff filed suit in New York

8 The Court decided Breen v. Peck, 28 N.J. 351 (1958), the same day it decided Daily. In Breen, the Court modified the absolute release doctrine as applied to joint tortfeasors, holding "our State no longer recognizes the English A-4042-19T3 31 against the owner and driver of a truck (the accident defendants) responsible

for injuries he suffered in a motor vehicle accident in Ohio. Id. at 375. He

filed a suit in New Jersey against the doctors who provided him with

subsequent medical care for his injuries. Id. at 375–76. The plaintiff settled

his claim with the accident defendants and executed a formal release. Id. at

376.

Construing Ohio law, the trial judge granted the doctors' motion for

summary judgment, concluding that the release barred the plaintiff's recovery,

since his complaint alleged only an aggravation of the injuries caused by the

accident, and the plaintiff could have recovered the full amount of damages

from the accident defendants. Id. at 378–79. However, applying New Jersey

law, the Court, rejected the automatic release rationale of Adams, and held:

Where . . . the court is concerned not with a joint tort but with successive independent torts, it is even more evident that the release of the original tortfeasor may not rationally be given the effect of automatically releasing the successive tortfeasor who, though he has made no payment whatever towards satisfaction of the injury he wrongfully inflicted, seeks a windfall because of the compromise of the claim against the original tortfeasor.

(continued) common-law rule which, in absolute terms, released all joint tortfeasors upon the release of one." Id. at 364. A-4042-19T3 32 [Id. at 383–84 (citations omitted).]

The Court concluded that the release did not bar the plaintiff's medical

malpractice claim unless it "was actually intended to release the doctors, or . . .

the amount paid by [the accident defendants] actually constituted full

compensation for the plaintiff's claims against [the accident defendants] and

the doctors or was accepted as such," in which case "the plaintiff may not

fairly or equitably seek further recovery." Id. at 384.

While both Breen and Daily abrogated the automatic release rule, both

assumed that a pro tanto credit would apply to reduce any damage award

against the unreleased, non-settling defendants at trial. See Breen, 28 N.J. at

365–66 (noting in joint tortfeasor context that the defendant "would in any

event receive a benefit from the partial payment of his co-wrongdoer[,] for it

would ultimately be allowed as a credit on the claim against him"); Daily, 28

N.J. at 386 (noting in successive tortfeasor context that, if the plaintiff

received "partial compensation" from the settling defendant for injuries

attributed to the doctors, "the amount of the partial compensation will be

credited against any sum otherwise recoverable by the plaintiff; in no event

will there be duplicating compensation to the plaintiff or duplicating liability

on the part of the defendants").

A-4042-19T3 33 The Court's opinions in Theobold v. Angelos, 40 N.J. 295 (1963)

(Theobold I), and Theobold II, 44 N.J. 228, significantly changed the

settlement-credit landscape for joint tortfeasors. 9 In that case, one defendant

settled prior to trial for $1500 ($1500 settler) and another settled for $88,500

($88,500 settler), for a total settlement of $90,000. Theobold I, 40 N.J. at

298–99. The jury had answered written interrogatories "calling for a specific

finding" as to the negligence of the two settling defendants and "whether such

negligence was a 'concurring and proximate cause of' plaintiffs' injuries." Id.

at 299. The jury found that the $88,500 settler was negligent, the $1500 settler

was not, the trial defendant was negligent, and the plaintiff's total damages

were $65,000. Ibid. Thus, under the terms of the JTCL and prior to passage of

the CNA, the $88,500 settler and the trial defendant were joint tortfeasors, but

the $1500 settler was not a tortfeasor at all; therefore, the trial judge divided

the verdict equally between the $88,500 settler and the trial defendant. Id. at

300. He then deemed one half of the judgment satisfied by the $88,500

settlement, deducted the $1500 settlement from the remaining $32,500 award

and entered judgment against the trial defendant for $31,000. Ibid.

9 The plaintiff's name is spelled differently in both cases. From here on in, we adopt the spelling used in the first case. A-4042-19T3 34 The Court in Theobold I noted that adoption of the JTCL "did not

change the fundamental doctrine that an injured person is entitled to receive

full and fair compensation but once, regardless of the number of wrongdoers

who participated in inflicting the damage." Id. at 302. However, application

of the statute "in certain situations where a plaintiff has made a partial

settlement with less than all of the alleged tort-feasors without trial of his case,

may result in actual receipt of a lesser sum than that fixed by a jury as

representing full compensation." Ibid. (emphasis added). The Court then

posed a series of hypothetical outcomes from "[t]he other side of the coin,"

i.e., where the plaintiff settled for a greater sum than awarded by the jury at

trial. Id. at 302–03. Without resolving the issue, the Court reversed based on

the judge's jury instructions, id. at 305–07, and remanded for a new trial as to

damages only, leaving the issue of "the propriety of the allocation of the

verdict among the various alleged tort[-]feasors" for the future. Id. at 308.

At the second trial, the jury awarded the plaintiff $165,000 in total

damages. Theobold II, 44 N.J. at 231. The judge split the verdict equally on a

pro rata basis between the $88,500 settler and the trial defendant, applied a

$1500 pro tanto credit, and entered judgment against the trial defendant for

$81,000. Id. at 231–32. Before the Court, the trial defendant argued that

either: (1) the total damages should be split pro rata between all three A-4042-19T3 35 defendants, leaving one $55,000 share left to be paid: or, (2), if a three-way

pro rata split was not allowed, the trial defendant should receive a pro tanto

credit of $90,000, i.e., all the settlement monies the plaintiff had received,

leaving a judgment of $75,000, not $81,000, against it. Ibid.

The Court rejected both alternatives. As to the $1500 settler, the Court

found no basis to consider him responsible for a pro rata share of the plaintiff's

damages. Id. at 234–35. The Court noted that the JTCL "calls for an

adjustment only if the payor was a party to the wrong[,]" and it "does not

direct that credit be given if there is a settlement with one who is not in fact a

tortfeasor." Id. at 235 (emphasis added). Although the plaintiff did not

challenge on appeal the award of a pro tanto credit to the trial defendant for

the monies paid by the $1500 settler who was adjudicated not negligent at

trial, id. at 232, the Court in dicta cited Brandstein and approved application of

the pro tanto credit to the trial defendant's share. Id. at 236.

However, "invok[ing] the rule that there may be but one satisfaction of a

wrong[,]" the trial defendant argued that holding him responsible for $81,000

in damages resulted in a windfall to the plaintiff, who would receive a total of

$171,000 in damages ($1500 + $88,500 + $81,000), even though the jury

awarded only $165,000. Id. at 239. Justice Weintraub wrote:

A-4042-19T3 36 The one-satisfaction rule is equitable in nature and was designed to prevent unjust enrichment. . . . [I]t probably came into being at a time when courts of law could not achieve contribution among co-obligors. While the rule remains useful as an instrument for a just result, the question is whether it should be invoked in a situation in which [the JTCL] applies.

Defendant's just liability under [JTCL], based on the equitable doctrine that equality is equity, is for a pro rata share. He . . . seeks to avoid part of his liability because a co-tortfeasor paid more than he had to under the law. If defendant can invoke the one- satisfaction rule, he will enrich himself to the extent of another's overpayment. Hence, as plaintiff correctly puts it, the question is whether it is the plaintiff or the defendant who should be "unjustly" enriched if there in fact is any "unjust" enrichment in this scene.

We think plaintiff has the better of the argument in terms of both fairness and utility.

As to fairness, it is difficult to know whether a tort claimant has received more than full satisfaction. There is no precise measure of the amount of wrong. Even if the trial is as to damages only, successive juries would rarely make the identical appraisal. Nor is there reason to suppose that a jury's evaluation of losses is more accurate than the evaluation made by the parties to the settlement. [Id. at 239–40 (emphasis added) (citations omitted).]

Despite these statements, the Court nevertheless approved the application of a

pro tanto settlement credit, even when the settling defendant was "not a party

to" the wrong. Id. at 241.

A-4042-19T3 37 B.

After passage of the CNA, Theobold II's award of a pro tanto credit

based upon a plaintiff's settlement with a non-adjudicated joint tortfeasor is no

longer viable. We first addressed the issue in Rogers, a case involving joint

tortfeasors and decided five days after Ciluffo.

In Rogers, the settling defendant paid the plaintiffs $5000 in exchange

for a covenant not to sue. 147 N.J. Super. at 275–76. The jury found no

negligence on the settling defendant's part, 100% negligence on the remaining

defendant's part, and total damages of $10,750. Ibid. "[R]elying solely" on

Theobold II, the remaining defendant claimed entitlement to a pro tanto credit

for the settlement monies received from the non-negligent settler. Ibid.

We noted first that in Theobold II, "[t]his pro tanto credit was not

challenged . . . on appeal." Id. at 276. We rejected application of a pro tanto

credit, observing that under the CNA, a plaintiff who "makes a particularly

good bargain in settlement" with a tortfeasor who is ultimately assigned a

small percentage of fault at trial, or with a party later found to be without

liability entirely "will benefit by the excess amount." Id. at 277–78. We

explained:

This necessarily means that if the settling defendant is found [zero percent] negligent (as in the present case), plaintiff will receive the settlement plus the full A-4042-19T3 38 verdict. Under previous law in New Jersey the pro tanto amount paid by a non[-]negligent settling defendant was deducted from the verdict as long as the amount deducted did not exceed the possible pro rata share. Of course, under the [CNA] only the percentage amount equal to the percentage of negligence attributable to the settling defendant is deducted, no matter what the size of the settlement. It follows that the potential for enrichment of plaintiff beyond the loss suffered has been increased. However, this is offset by the potential for a greater loss to plaintiff if he makes a low settlement. While ideally a claimant should not receive more than one satisfaction for a wrong, when the situation arises in which additional enrichment must necessarily flow to someone, the more just result is to have the person wronged receive the benefit and not a wrongdoer.

[Ibid. (citing Theobold II, 44 N.J. at 239–41) (emphasis added).]

In the context of joint tortfeasors, our caselaw has consistently followed

Rogers' rationale, i.e., that the CNA eliminated pro tanto credits based on a

plaintiff's settlement with another party, and the adjudicated tortfeasor was

entitled to a "credit" — a reduction in any award of damages — only by

application of the adjudicated percentage responsibility of other tortfeasors.

See, e.g., Young, 123 N.J. at 591 (citing Rogers and holding that "[t]he non-

settling defendant is not entitled to a credit if the plaintiff settles with a party

found not to be a tortfeasor"); Johnson, 306 N.J. Super. at 436–37 (noting, "as

Rogers pointed out, the comparative-negligence scheme differs from the

A-4042-19T3 39 former [JTCL], as construed by [Theobold II], under which the non-settling

defendants were entitled to a pro tanto credit for the proceeds of the settlement

made by plaintiff with the settling defendant whose liability was never

adjudicated"). Indeed, "[t]he rationale of Rogers . . . has been consistently

reaffirmed and adhered to" and "the rule applies to every multiple defendant

case in which a comparative negligence allocation among them is required to

be made." Johnson, 306 N.J. Super. at 437 (emphasis added).

Because, as outlined above, common law concepts that limited a

faultless plaintiff's full recovery of her damages have long been jettisoned, and

because our jurisprudence has moved inexorably toward apportioning damages

based on adjudicated fault, we see no principled reason for continuing the

Ciluffo pro tanto credit formula simply because this case involves successive

instead of joint tortfeasors. As every case since Rogers has recognized, the

CNA, which by its express terms does not apply solely to joint tortfeasors,

reflected a legislative policy judgment that in turn reflected monumental

changes in the common law. While it remains important that a plaintiff "not

receive more than one satisfaction for a wrong, when the situation arises in

which additional enrichment must necessarily flow to someone, the more just

result is to have the person wronged receive the benefit and not a wrongdoer ."

Rogers, 147 N.J. Super. at 278. A-4042-19T3 40 Indeed, with the exception of Clark and Mitchell — two cases that cite

Ciluffo and ostensibly approve the pro tanto credit formula — the Medical

Defendants point to no decisions that approve pro tanto settlement credits in

any context other than alleged medical malpractice in the treatment of prior

occurring injuries. We doubt that our courts intended to carve out such an

exception to our general tort jurisprudence. 10 Moreover, a close reading of

those two cases lend little support to the Medical Defendants' arguments that a

potential pro tanto settlement credit should still apply.

In Clark, the plaintiff suffered serious injuries in an auto accident and

later died from cardiac arrest after the medical defendants provided neglig ent

10 The Court has recognized the continued vitality of pro tanto credits in the context of uninsured motorist claims brought pursuant to a personal automobile insurance policy. Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 503–05 (1987). However, there the Court differentiated the public policy supporting the uninsured motorist coverage and noted, "The policy behind the [JTCL] and the [CNA], on the other hand, is quite different. It is one of equity among joint tortfeasors — that is, those responsible for injury to an innocent victim should share equally the burden of recompense." Id. at 504. Accord Childs v. N.J. Mfrs. Ins. Co., 108 N.J. 506, 512–15 (1987). In Gold v. Aetna Life & Casualty Insurance Co., we recognized the viability of the Ciluffo pro tanto settlement credit in a claim brought under the underinsured motorist provisions of a policy. 233 N.J. Super. 271, 277 (App. Div. 1989). Citing Riccio, we noted that "[i]f plaintiffs had brought a common law suit against these defendants, the outcome might be different[,]" but Rogers was inapplicable because "the deduction of settlement proceeds from any potential underinsured motorist benefits is consistent with the public policy underlying the availability of contracted UIM coverage." Id. at 278 n.3. A-4042-19T3 41 treatment. 390 N.J. Super. at 112–13. The jury found the medical defendants

were negligent and awarded the plaintiff's survivor $2 million in pain and

suffering damages and $1 million in wrongful death pecuniary losses. Id. at

111. One of the points raised on the medical defendants' appeal was that the

trial judge failed to charge in accordance with Ciluffo regarding the plaintiff's

settlement of more than $700,000 with the driver involved in the accident, who

was never a party to the suit. Id. at 119.

"[I]nstead of asking the jury to determine total damages and the

malpractice damages, the judge instructed the jury to determine what damages

flowed from the malpractice and what damages were caused by the initial

accident. Therefore, the two damage amounts together would constitute 'total

damages.'" Id. at 120. The judge told the jury that the medical defendants

would "receive a credit for any amount paid by the other driver in the

settlement in excess of the amount you determine to be the damage s ustained

solely from the automobile accident." Ibid. The jury was not told the amount

of the settlement and apportioned the damages as $2 million from the medical

negligence and $1.5 million from the car accident. Id. at 120–21. We rejected

the medical defendants' argument regarding the charge, finding "no essential

difference between the process contemplated by Ciluffo and the process

utilized here." Id. at 121. A-4042-19T3 42 Importantly, "because the amount of damages assigned by the jury for

the accident far exceeded the settlement amount, there was no credit due

defendants from the settlement." Ibid. And, we refused to consider as moot

"whether Ciluffo applies at all to this case where the other driver was never

sued[.]" Ibid. In short, the actual application of a pro tanto credit based on the

plaintiff's prior settlement was not before us in Clark.

In Mitchell, the plaintiff sued the owner of a bar at which he was injured

during a brawl and, in a separate lawsuit, the dentist who allegedly was

negligent in treating the injuries to his mouth. 331 N.J. Super. at 448–49. On

the day of trial, the plaintiff settled with the bar owner for $125,000, and, on

the same day, moved to amend the complaint to alleged malpractice by the

defendant dentist. Id. at 449. The trial court dismissed the suit against the

dentist on the grounds that he had been substantially prejudiced by the

plaintiff's failure "to comply with the then-applicable entire controversy

doctrine and notice requirements of Rule 4:5-1(b)(2)[,]" but we disagreed and

reversed. Id. at 449–55, 458.

The Mitchell defendant also argued that the plaintiff was "not entitled to

proceed against him because the $125,000 settlement represented

compensation for all injuries sustained[.]" Id. at 456. We disagreed and held

that the plaintiff was "entitled to have a jury determine the issue of full A-4042-19T3 43 compensation, as well as that amount attributed to defendant's alleged

malpractice." Id. at 458.

We cited the Ciluffo calculation with approval, noting that "to avoid

duplicating compensation paid to [the] plaintiff, the successive tortfeasor may

receive a credit for part or all of the payment made by the initial tortfeasor."

Id. at 456. We noted, however, that, "[a]t oral argument, plaintiff's counsel

conceded that plaintiff had been satisfied to the extent of the settlement with

the Cherry Hill defendants and would not be entitled to collect additio nal

damages, unless the verdict attributed to defendant's negligence exceeded

$125,000." Ibid. (emphasis added). In short, the plaintiff in Mitchell never

raised the issue we now address.

III.

The developments in tort law since Ciluffo was decided regarding the

apportionment of liability among multiple parties have been significant. It

remains true that "[n]o party should be liable for harm it did not cause[.]"

Restatement (Third) § 26 cmt. a. However, under the two-step process

outlined in Campione, successive tortfeasors suffer no prejudice if the jury can

properly apportion "divisible damages into their indivisible component parts."

Id. at cmt. c. This certainly seems to be such a case, since the jury can easily

understand that the Medical Defendants cannot be held liable for Jennifer's A-4042-19T3 44 fractured ankle, the pain and suffering that occurred as a result, and the need

for surgery. We specifically anticipated the ability of a jury to apportio n

damages in such circumstances in Ciluffo, Mitchell, and Clark.

The only real issue is whether plaintiff or the Medical Defendants should

benefit from the jury's assessment of the damages related solely to the

fractured ankle when compared to the $1.15 million settlement plaintiff

reached with Juanito's. Without a possible pro tanto credit, if the settlement is

less than the jury's assessment, plaintiff reaps the result of what may have been

a bad bargain, but the Medical Defendants are only responsible for the

damages attributed to their negligence. If the settlement is more than the jury's

assessment, plaintiff receives the benefit, but the Medical Defendants are still

responsible only for what the jury has determined is the full measure of the

damages attributed to their negligence. Such a result is fair and wholly

consonant with the developments in our law since Ciluffo was decided, and we

specifically disapprove of its holding regarding the award of a potential pro

tanto credit in circumstances like these.

The orders under review are reversed, and the matter is remanded to the

Law Division for further proceedings consistent with this opinion. We do not

A-4042-19T3 45 retain jurisdiction.

A-4042-19T3 46