# Van Horn v. William Blanchard Co./Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Handler
OPINION BY: CLIFFORD
[NJ92] [A553] After a bifurcated trial in this negligence action the jury returned a verdict finding plaintiff fifty percent negligent, one defendant thirty percent negligent and a second defendant twenty percent negligent. The trial court molded the verdict and entered judgment in favor of defendants, and thereafter denied plaintiff's motion under R. 4:49-2 to amend the judgment. The Appellate Division affirmed, one judge dissenting, concluding that despite the fact that plaintiff's negligence was not greater than the combined negligence of defendants, recovery was barred under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3. [NJ93] Van Horn v. William Blanchard Co., 173 N.J. Super. 280 (1980). Plaintiff appeals as of right, R. 2:2-1(a). We affirm.

## I

On September 25, 1975 plaintiff, Lloyd K. Van Horn, was employed by Beach Electric Company, a subcontractor on a building site in Clinton, New Jersey. The general contractor was defendant William Blanchard Company Click for Enhanced Coverage Linking Searches(Blanchard). Defendant Epic Construction Company (Epic) was another subcontractor, and defendant Hull was an employee of Epic. On the date in question plaintiff sustained injuries giving rise to this suit when he slipped and fell on the job site while running into a building to avoid a rain storm. The cause of action was predicated on defendants' failure to have maintained the building entrance in a safe condition.
To guide it in its deliberations the jury was given special interrogatories. Its responses indicated that it found the negligence of Van Horn, Blanchard and Epic jointly to have produced the accident, whereas Hull was determined to be free of any negligence. Having been instructed that the combined negligence, if there were any, should total one hundred percent, the jury apportioned the negligence as follows: plaintiff, fifty percent; Blanchard, thirty percent; and Epic, twenty percent. Because the plaintiff's negligence exceeded the individual negligence of either of the joint tortfeasors, the trial court entered judgment for defendants.
On appeal plaintiff argued that "[i]n multiple defendant cases, in order to avoid harsh and unfair results, the negligence of an individual plaintiff must be compared to the combined negligence of the several tortfeasors." According to plaintiff he was entitled [A554] to a judgment on liability inasmuch as his negligence (fifty percent) was not greater than the aggregated negligence (fifty percent) of the two tort feasors.
[NJ94] A majority of the Appellate Division rejected this contention, holding that the Comparative Negligence Act "makes it clear that plaintiff's degree of negligence must be measured against that of each individual defendant, not the combined negligence of all defendants." 173 N.J. Super. at 282. The dissenting judge's view, with which our dissenting colleagues are in substantial agreement, was that a plaintiff's right to recover should be determined by combining defendants' percentages of negligence. Under that approach there would first be a determination of whether a plaintiff is entitled to recover at all by reference to his negligence alone; if that percentage is not greater than fifty percent, recovery is allowed. All defendants found to be negligent in any degree would be required "to contribute to the actual recovery to which plaintiff would be entitled in an amount equal to [each defendant's] own percentage multiplied by the total verdict." Id. at 287 (dissenting opinion).
Both the plain meaning of the statute and long-standing judicial interpretation thereof lead to the opposite result.

## II

The Comparative Negligence Act, L.1973, C. 146, was the Legislature's response to the harshness of the complete bar to recovery imposed by the rule of contributory negligence. See Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 161 (1979); id. at 204-05 (concurring opinion); O'Brien v. Bethlehem Steel Corp., 59 N.J. 114, 126 (1971) (Francis, J., concurring); Automobile Insurance Study Commission, Reparation Reform for New Jersey Motorists, Recommendation 4 at XIV (Dec.1971); Release from the Office of the Governor, May 24, 1973. New Jersey has a "modified" comparative negligence system, as distinguished from a "pure" system under which "a plaintiff may recover even if his negligence is greater than the negligence of the adverse tortfeasor," with the recovery "diminished [NJ95] by his degree of contributory negligence." C. Heft & C. Heft, Comparative Negligence Manual § 1.50 (1978).
Section 1 of the Act reads as follows:
   Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. [[[N.J.S.A. 2A:15]]-5.1 (emphasis added).]
The Legislature's use of the singular "the person" rather than the plural form strongly suggests that a plaintiff's negligence should be compared to the negligence of only one person at a time. Plaintiff would have us reject that sensible construction by resort to N.J.S.A. 1:1-2, which provides that "[w]herever, in describing or referring to any person * * * any word imparting the singular number * * * is used, the same shall be understood to include and to apply to several persons or parties as well * * *." The argument is that "in its use of the phrase 'the person against whom recovery is sought' the Legislature intended to refer to the tortfeasor concept in its collective and adjectival sense * * *." 173 N.J. Super. at 284 (dissenting opinion).
Whatever persuasive appeal is inherent in that approach is overcome when section 1 of the Act is read in conjunction with section 3. The latter section reads:
   The party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery. Any party who is so compelled to pay more than such party's percentage share may seek contribution from the other joint tortfeasors. [[[N.J.S.A. 2]]A:15-5.3 (emphasis added).]
[A555] This statute obviously addresses a multi-defendant situation, as in the case before us. Equally obvious is that it contemplates a fact pattern in which the plaintiff is entitled to recover from at least one defendant, while at the same time there are other negligent defendants from whom he is not entitled to recover -- the antithesis of aggregating all the defendants' negligence. No other meaning can reasonably be ascribed to the descriptive phrase "any party against whom such recovering party is not [NJ96] barred from recovery." And if there are defendants from whom plaintiff is entitled to recover and others from whom recovery is barred, then it is clear that aggregation of defendants' percentages of fault is not contemplated; for if it were, and if a plaintiff were entitled to recover against any negligent defendant, he would be entitled to recover against all under the minority's theory.
But that is not what section 3 of the statute says. It distinguishes between or among defendants: those from whom recovery is allowed and those against whom recovery is barred. The most obvious point of distinction between the two classes of defendants is the quantum of their respective negligence vis-a-vis the plaintiff's negligence. So if plaintiff is thirty-five percent negligent, defendant A is forty-five percent at fault and defendant B's negligence amounts to twenty percent, in keeping with section 3 of the Act plaintiff would be permitted to recover from defendant A but not from defendant B. Cf. Nora v. Livingston Twp., 171 N.J. Super. 579 (App.Div.1980) (defendant B, whose negligence was less than plaintiff's and less than that of defendant A whose negligence was greater than plaintiff's, not a joint tortfeasor for purposes of Joint Tortfeasors Contribution Law; defendant A required to pay entire judgment less amount representing plaintiff's negligence, and not entitled to contribution from defendant B). N.J.S.A. 2A:15-5.3 convincingly disposes of the argument that defendants' negligence should be aggregated for purposes of determining whether plaintiff is entitled to recover.

## III

The dissenting judge below recognized that in construing the act as she did, she was disagreeing with prior holdings of the [NJ97] Appellate Division and Law Division, 173 N.J. Super. at 288 (dissenting opinion), referring to Cartel Capital Corp. v. Fireco of New Jersey, 161 N.J. Super. 301, 310 (App.Div.1978), rev'd on other grounds, 81 N.J. 548 (1980); Nora v. Livingston Twp., supra; and Rawson v. Lohsen, 145 N.J. Super. 71, 75-77 (Law Div.1976). She felt free to do so because she found unpersuasive the reasoning of the Wisconsin courts upon which those cases were based, 173 N.J. Super. at 288 (dissenting opinion), and further because "the Wisconsin Supreme Court itself has begun seriously to question the soundness" of the individual approach in its interpretation of Wisconsin's similarly-worded comparative negligence act. Id.
The Comparative Negligence Act was taken nearly verbatim from the Wisconsin comparative negligence statute. A legislative enactment patterned after a statute of another state is ordinarily adopted with the prior constructions placed on it by the highest court of the parent jurisdiction. See 2A C. Sands, Sutherland Statutory Construction § 52.02 (4th ed. 1973). See also Suter v. San Angelo Foundry & Machine Co., supra, 81 N.J. at 161; Woodward v. Haney, 564 P.2d 844, 845-46 (Wyo.1977). Hence it is significant that at the time New Jersey adopted the Wisconsin "modified" form of comparative negligence, the individual approach rather than the aggregate system was a fixture in Wisconsin law. See [A556] Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495, 499-500 (Wis.1961). In cases decided after New Jersey had embraced comparative negligence Wisconsin continued to adhere to the principle that the comparison of negligence in multiple defendant cases must be between the plaintiff and each defendant individually. See Soczka v. Rechner, 73 Wis.2d 157, 164, 242 N.W.2d 910 (Wis.1976); Mariuzza v. Kenower, 68 Wis.2d 321, 228 N.W.2d 702 (1975). Whereas it is true that Wisconsin flirted with the notion of embracing the aggregate approach, see dictum in May v. Skelley Oil Co., 83 Wis.2d 30, 264 N.W.2d 574 (Wis.1978), the departure was but a momentary aberration, as disclosed by Reiter v. Dyken , 95 Wis.2d 461, 290 N.W.2d 510 (1980).
   [NJ98] To change from the present rule to one in which a plaintiff would be allowed to recover against a person less negligent than himself would have significant ramifications throughout the tort system of allocating losses as it now exists in this state. Specifically, such a change would raise important questions about the extent of a less negligent defendant's liability and the operation of the rules of joint and several liability, contribution, set-off and release. Indeed, unless accompanying changes are made in these related areas of law, the change requested by plaintiff may very well create far more serious problems that it is intended to resolve. For this reason we think plaintiffs' request would be better addressed to the legislature. [Id. at 474, 290 N.W.2d at 517 (footnote omitted).]
Demonstrating that it meant what it said, the Wisconsin Supreme Court made the following observation within a month of the Reiter decision:
   On a number of occasions this court has considered the question of whether or not it should modify or change our comparative negligence rule of law (requiring individual comparison) and this court has consistently held that the decision of whether to change the comparative negligence rule of law is a legislative matter. [Wisconsin Nat. Gas Co. v. Ford, Bacon & Davis Constr. Co., 96 Wis.2d 314, 328, 391 N.W.2d 825, 831-32 (Wis.1980).]
It is therefore apparent that Wisconsin has put to rest any question of changing its judicial interpretation of that state's comparative negligence law.

## IV

There are public policy considerations supporting both sides of the issue confronting the Court today. We would have difficulty deciding this case on the basis of notions of fairness or the "workability" of the two approaches. However, the unmistakable preference of the Legislature for the individual approach, as so graphically demonstrated by section 3 of the Act, persuades us that any change of our law in this area should come from the legislative rather than the judicial process.
Affirmed.

## Notes

* ↑ The record is uninformative as to the fate of defendants Argee Construction Company and John Does in this litigation.
* ↑ Although the quoted phrase would include a negligent defendant from whom recovery is barred because of immunity from tort liability, we consider it most unlikely that the Legislature would choose such an oblique, all-encompassing expression to describe only a narrow class of tort-immune defendants.
* ↑ In fact Senate Bill 1507, introduced on January 9, 1979 and passed by both houses of the Legislature, provided for the aggregate approach. However, the bill was pocket-vetoed by Governor Byrne on February 15, 1980.