SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Frank A. Campione v. Linda J. Soden, et als. (A-14/210-96)
Argued September 24, 1996 -- Decided July 9, 1997
STEIN, J., writing for a unanimous Court.
In this appeal, the Court addresses the allocation of fault and damages under the Comparative
Negligence Act for injuries caused by successive automobile accidents. In addition, the Court addresses the
issue of whether a trial court that omitted one or more critical fact issues from the special verdict form
submitted to jury, without objection by the parties, may make factfindings concerning such omitted issues on
the basis that the parties' right to trial thereof has been waived.
On June 15, 1989, Frank Campione was a passenger in an automobile owned and operated by Linda
Soden, which was stopped at a red light behind several other cars. Almost immediately after the light turned
green, Soden's vehicle was hit from behind by a light-duty pickup truck, driven by Eric Jensen and owned by
Jensen's employer, Handex of New Jersey. Jensen had maintained, over Soden's denial, that a car in front
of Soden had stopped suddenly, causing Soden to brake abruptly.
Following the accident, Soden, Jensen, and Campione all exited the vehicles to inspect for damage.
Campione was standing between the Jensen and Soden vehicles when Jensen's truck was rear-ended by a car
owned and operated by Marcia Sacknowitz. The force of that impact propelled Jensen's truck into Soden's
vehicle, crushing Campione's legs between the two bumpers and launching him several feet into the air. He
landed on his back and head in the middle lane of the highway.
Campione, who sustained multiple injuries as a result of the impacts, filed suit against Soden,
Jensen, Handex, and Sacknowitz. At trial, Campione's psychiatrist testified that Campione suffered from
post-traumatic stress disorder, secondary depression, and chronic pain and, further, that Campione's loss of
income had contributed to his psychiatric difficulties. Although Campione had not attempted to value his
labor relations firm or to assert a lost earnings or wage claim, he had testified that his once-busy firm had
become practically “nonexistent” following the accident. In response to that testimony, Jensen/Handex
sought to introduce Campione's tax returns to refute the inference that Campione's business had been a
successful venture, which the trial court denied.
At trial, it was conceded that Campione's leg fractures were exclusively attributable to the second
impact between Sacknowitz and Jensen/Handex. The source of his back, neck, periodontal, and
psychological injuries, however, was vigorously contested. Jensen/Handex argued that all of those injuries
were caused by the second impact, while Campione contended that the injuries could not be apportioned
between the two accidents.
During the trial, the trial court informed counsel of its intention to require the jury to return a
special verdict pursuant to R. 4:39-1, and submitted to counsel a draft of the special verdict form containing
the proposed written questions to be answered by the jury. The draft was discussed by the court and counsel
at a charge conference at the close of the trial during which the court agreed to address certain ambiguities
in the draft special verdict form. The final version of the special verdict form prepared by the trial court was
apparently submitted to counsel for review only after the court began charging the jury. The court
interrupted its charge midway to hear exceptions to the charge. Both Campione and Jensen/Handex
suggested changes to the jury interrogatories, after which the trial court gave clarifying instructions.
At the close of the evidence, the trial court found, as a matter of law, that Jensen/Handex was solely
responsible for the first impact and dismissed the claims against Soden. At the conclusion of the eleven-day
trial, the jury found, among other things, that $300,000 in damages occurred exclusively as a result of the
second impact and that $450,000 in damages could not be allocated as between the first and second impacts.
The jury interrogatory specifically permitted the jury not to allocate damages between the two impacts.
After the jury was dismissed, counsel and the court noticed that the final verdict form had failed to
inquire about the percentage of fault attributable to the negligence of Jensen/Handex as a proximate cause
of the second impact. In addition, the form did not adequately inform the jury of its responsibility to attempt
to allocate all damages between the two accidents. The trial court, therefore, requested briefs from the
parties on how to mold the verdict to accommodate those omissions. As a result, the trial court made
findings of fact in respect of the omitted issues, pursuant to R. 4:39-1. Specifically, the trial court found that
the first impact, for which it had already determined Jensen/Handex to be 100% responsible, was the
primary cause of the second impact. Accordingly, the court set aside the jury's findings with regard to the
second impact and replaced them with its own, holding Jensen/Handex, Sacknowitz and Campione
responsible for the second collision. The court also allocated 70% of the $450,000 in unallocated damages to
Jensen/Handex and 30% to Sacknowitz. Finally, the Court imposed joint and several liability on both
Jensen/Handex and Sacknowitz for all of plaintiff's damages.
Sacknowitz and Jensen/Handex unsuccessfully moved for a new trial or, alternatively, for a reduction
in the damages. Jensen/Handex then appealed to the Appellate Division, which found that the trial court
had improperly dismissed Soden from the suit as a matter of law. In addition, the Appellate Division held
that the jury verdict was incomplete because the jury did not compare the negligence of all parties
responsible for either the first or second impacts pursuant to the Comparative Negligence Act (“the Act”).
The Appellate Division also determined that Jensen/Handex's failure to object to the verdict sheet pursuant
to R. 4:39-1 did not constitute a waiver of the right to have a jury allocate liability because the trial court and
counsel were both initially unaware of the omissions.
In respect of the trial court's molded verdict, the Appellate Division found the post-verdict
allocation of liability to be “an invasion of the jury's province,” and reversed those aspects of the molded
judgment, leaving other jury findings intact. The Appellate Division also declined to set aside the jury's
damage awards and directed that the $300,000 awarded for injuries attributable to the second impact be
allocated according to the percentages to be decided by the jury on remand. In addition, the Appellate
Division held each responsible defendant jointly and severally liable for the $450,000 in unallocated damages,
citing a l968 Appellate Division case. Finally, the Appellate Division dismissed as meritless
Jensen/Handex's claim that the trial court erred in refusing to admit Campione's tax returns.
Jensen/Handex filed a petition for certification contesting the Appellate Division's imposition on it
of joint and several liability for the unallocated damages and the exclusion from evidence of Campione's tax
returns. Campione filed a cross-petition, asserting that Jensen/Handex's failure to object to the special
verdict sheet constituted a waiver of the right to have the jury apportion fault for the second accident, and
that the Appellate Division erred reversing the trial court's grant of judgment in favor of Soden.
The Supreme Court granted Jensen/Handex's petition for certification and Campione's cross-petition for certification.
HELD: The legislative objective of the Comparative Negligence Act requires juries to apportion damages
between successive accidents and to apportion fault among the parties responsible for each accident; the
waiver provision of Rule 4:39-1 should be enforced in view of the parties' failure to object to the omission of
issues from the special verdict form.
1. The Legislature enacted the Comparative Negligence Act to ameliorate the harsh results attendant to the
common-law doctrine of contributory negligence. (pp. 11-12)
2. A longstanding judicial response to cases where damages cannot be apportioned between two or more
accidents has been to hold each culpable defendant jointly and severally liable for the unapportionable
damages. (pp. 12-14)
3. A necessary precursor to an apportionment of damages under the Act is the submission of clear, accurate,
and complete interrogatories to the jury, which requires participation by counsel. (pp. 14-15)
4. Rule 4:39-1, which enables trial courts to require juries to return special verdicts in the form of special
written findings on each fact at issue in a case, mirrors Federal Rule of Civil Procedure 49(a). Thus, the
history and subsequent interpretation of that rule is relevant to an understanding of R. 4:39-1. (pp. 15-20)
5. Under Federal Rule 49(a), if an issue is omitted without objection, the party is deemed to have waived its
right to a jury trial on that issue and the trial judge is authorized to make the necessary factual finding.
(p. 20)
6. Federal courts have consistently enforced the waiver component of the special verdict rule. (pp. 21-22)
7. The trial court's imposition of joint and several liability on Sacknowitz for all of Campione's damages,
and the Appellate Division's imposition on Sacknowitz of joint and several liability for only the unallocated
damages cannot be reconciled with the Act. (pp.22-24)
8. Although the Act does not specifically address the jury's responsibility in cases involving injuries
sustained in successive accidents, the legislative objective would be achieved by requiring juries to apportion
damages between successive accidents and to apportion fault among the parties responsible for each accident.
(pp. 24-25)
9. 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. (p. 25)
10. Parties waive their right to a jury trial concerning issues not raised by special verdict interrogatories
unless they object to such omissions prior to submission to the jury. (pp. 26-28)
11. The factual findings rendered by the trial court pursuant to the special verdict rule were reasonable in
light of the evidence presented during trial, and such findings of fact should not be disturbed unless they are
so wholly insupportable as to result in a denial of justice. (pp. 28-30)
12. The trial court's entry of judgment in favor of Soden should not have been disturbed. (pp. 31-32)
13. A taxpayer is entitled to nondisclosure of his or her return absent a strong need for information
contained in the return. Absent a claim for lost wages or profits, no strong need or substantial purpose for
disclosure of Campione's returns existed. (pp. 32-34)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for the entry of a judgment that conforms to this opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-14/
210 September Term 1996
FRANK A. CAMPIONE,
Plaintiff-Respondent
and Cross-Appellant,
v.
LINDA J. SODEN and MARCIA
SACKNOWITZ,
Defendants,
and
ERIC M. JENSEN and HANDEX OF NEW
JERSEY,
Defendants-Appellants
and Cross-Respondents.
Argued September 24, 1996 -- Decided July 9, 1997
On certification to the Superior Court,
Appellate Division.
Richard S. Hyland argued the cause for
appellants and cross-respondents (Montgomery,
McCracken, Walker & Rhoads, attorneys; Mr.
Hyland and Thomas J. Kenney, III, of
counsel).
Michael D. Schottland argued the cause for
respondent and cross-appellant (Schottland,
Manning & Rosen, attorneys).
The opinion of the Court was delivered by
STEIN, J.
This appeal primarily concerns the allocation of fault and
damages under the Comparative Negligence Act for injuries caused
by successive automobile accidents, and the collateral issue
whether a trial court that omitted, without objection by either
party, one or more critical fact issues from the special verdict
form submitted to the jury pursuant to Rule 4:39-1, may make
factfindings concerning such omitted issues on the basis that the
parties' right to a jury trial thereof has been waived.
I
This is a double-impact motor vehicle accident case. On
June 15, 1989, at approximately 11:15 p.m., plaintiff Frank
Campione was a passenger in an automobile owned and operated by
Linda Soden. The pair was traveling south on Route 9 in
Sayreville. It had been a rainy day; the roads were wet.
Soden stopped at a red light. Her car was in the far left
lane. Several cars were stopped in front of Soden's vehicle.
Almost immediately after the light turned green, Soden's vehicle
was rear-ended by a light-duty pickup truck. The truck, driven
by Eric Jensen, was owned by Jensen's employer, Handex of New
Jersey.
Jensen testified that a car in front of Soden had stopped
suddenly, causing Soden to brake abruptly. Soden denied Jensen's
allegation. The police report of the accident, however,
indicated that Soden told the police that a car had stopped short
in front of her vehicle, causing her to brake quickly. Soden
testified that the reporting officer had not written what she
told him.
After the accident, neither Soden nor Jensen moved their car
from the left lane. Instead, they activated their emergency
flashers and left their vehicles in the roadway. Jensen, Soden,
and Campione all exited the vehicles to inspect for damage.
Campione was standing between the Jensen and Soden vehicles when
Jensen's truck was rear-ended by a car owned and operated by
Marcia Sacknowitz. Both Campione and Soden estimated the time
between the two collisions to be less than a minute.
The force of the impact propelled Jensen's truck into
Soden's vehicle. Campione's legs were crushed between the two
bumpers and he was launched several feet into the air. He landed
on his back and head in the middle lane of the highway.
Campione was diagnosed with fractures of both legs, a
cervical sprain, a lumbar sprain, a concussion, and a broken
tooth, which became infected. He was hospitalized for thirty-one
days. After his release, he returned to live with his parents,
who cared for him during his rehabilitation. Campione
participated in physical therapy to regain the full use of his
legs, and received psychiatric treatment.
Campione filed suit against Soden, Jensen, Handex, and
Sacknowitz. Soden filed an answer and a crossclaim for
contribution and indemnification. Jensen and Handex
(Jensen/Handex) filed an answer and crossclaims. Sacknowitz
filed only an answer.
At trial, Campione's psychiatrist testified that Campione
suffered from post-traumatic stress disorder, secondary
depression, and chronic pain. His symptoms included insomnia,
nightmares, and sexual dysfunction. The psychiatrist also
testified that Campione's injuries, and the resultant limitations
on his physical abilities, deprived him of self-esteem. Although
Campione had been "a real bon vivant" prior to the accident, his
post-accident activities and relationships were markedly
restricted.
The psychiatrist also testified that Campione's loss of
income had contributed to his psychiatric difficulties. Campione
testified that his once-busy labor relations firm, Campione
Associates, had become practically "nonexistent" after the
accident. In response, Jensen/Handex sought to introduce
Campione's tax returns to refute a perceived inference that
Campione Associates had been a successful venture. Rejecting
Jensen/Handex's argument, the trial court noted that Campione had
neither attempted to value the business nor sought to assert a
lost earnings or lost wage claim.
The accident reconstruction expert hired by Jensen/Handex
established that Sacknowitz had an unobstructed line of vision
for 255 feet from the stopped vehicles. The expert's unrefuted
testimony also indicated that Sacknowitz's vehicle was traveling
at approximately 18.5 miles per hour at the time of impact.
Sacknowitz testified that she did not see the stopped
Jensen/Handex vehicle until she was fifty feet away. She claimed
that she was traveling forty-five miles per hour when she hit the
brakes, causing her vehicle to slide into Jensen/Handex's truck.
Concerning Campione's physical injuries, it was conceded at
trial that Campione's leg fractures were exclusively attributable
to the second impact between Sacknowitz and Jensen/Handex.
Although the cause of Campione's leg injuries was undisputed, the
source of his back, neck, periodontal, and psychological injuries
was vigorously contested. Jensen/Handex argued that all of those
injuries were caused by the second impact, while Campione
contended that the injuries could not be apportioned between the
two accidents. Campione produced medical testimony from a
psychiatrist, an orthopedic surgeon, and a dentist, none of whom
could pinpoint the source of Campione's injuries. The
psychiatrist testified that the psychological injuries could have
been caused by the first impact, the second impact, or a
combination of both. The orthopedic surgeon and the dentist
opined that Campione's substantial neck, back, and dental
injuries, respectively, could have been caused by either the
first or the second collision. Counsel for Jensen/Handex argued
that the first impact was mild; that both Soden and Campione had
testified that neither the Jensen/Handex vehicle nor the Soden
vehicle had suffered damage due to the first impact; and that
immediately after the first accident Campione stated that he was
not in pain. Counsel also highlighted testimony from Campione's
medical experts that suggested that Campione's injuries were
caused by the second, more serious impact.
During the trial, the trial court informed counsel of its
intention to require the jury to return a special verdict
pursuant to Rule 4:39-1, and submitted to counsel a draft of the
special verdict form containing the proposed written questions to
be answered by the jury. That draft was discussed by the court
and counsel at a charge conference at the close of trial.
Jensen/Handex's counsel asserts that at the charge conference
counsel expressed concern about ambiguities in the draft special
verdict form, which the trial court agreed to address. The final
version of the special verdict form prepared by the trial court
was apparently submitted to counsel only after the court began
charging the jury. The court interrupted its charge midway to
hear exceptions to the charge and to review the verdict sheet
with counsel. Counsel for both Campione and Jensen/Handex
suggested changes to the jury interrogatories. After counsel's
commentary, the court gave clarifying instructions concerning
specific interrogatories on the verdict form and then concluded
its charge.
At the close of evidence, the trial court found as a matter
of law that Jensen/Handex was solely responsible for the first
impact, dismissing the claims against Soden. At the conclusion
of the eleven-day trial, the jury found: (1) Jensen's negligence
was a proximate cause of Campione's injuries from the first
impact; (2) the first impact was a proximate cause of the second
impact; (3) Soden and Jensen were not negligent for failing to
remove their vehicles from the roadway; (4) Sacknowitz was 95%
responsible for the second impact, and Campione was 5%
responsible for his injuries sustained as a result of that
impact; (5) no losses occurred exclusively as a result of the
first impact; (6) $300,000 in damages occurred exclusively as a
result of the second impact; and (7) $450,000 in damages could
not be allocated as between the first and second impacts.
Notably, the jury interrogatory specifically permitted the jury
not to allocate damages between the two impacts.
After the jury was dismissed, counsel and the court noticed
two omissions from the final jury verdict form. The verdict form
failed to inquire about the percentage of fault attributable to
the negligence of Jensen/Handex as a proximate cause of the
second impact. Additionally, the form did not adequately inform
the jury of its responsibility to attempt to allocate all damages
between the two accidents.
The court requested briefs from the parties on how to mold
the verdict to accommodate those omissions. As a result of the
omitted interrogatories, the trial court, pursuant to Rule 4:39-1, made findings of fact in respect of the omitted issues. The
trial court observed that the first impact, for which it had
already determined Jensen/Handex to be 100% responsible, was the
primary cause of the second impact, noting that the second impact
would not have occurred were it not for Jensen/Handex's
negligence in striking the rear of the Soden vehicle.
Accordingly, the court set aside the jury's findings with regard
to the second impact and replaced them with its own, holding
Jensen/Handex 60%, Sacknowitz 35%, and Campione 5% responsible
for the second collision. The court also allocated 70% of the
unallocated damages to Jensen/Handex and 30% to Sacknowitz. The
court explained its decision to mold the incomplete verdict:
A subsequent trial dealing solely with the
unresolved issues would necessarily duplicate
evidence heard by the jury over the ten day
trial. This procedure would be wasteful of
the court's resources as well as the time,
energy and finances of the litigants.
Fairness requires that all aspects of
litigation be resolved, if possible in a
single proceeding. This principle has
greater force now than in the past as it is
well known that our courts are struggling to
keep pace with the explosion of litigated
matters.
[Citations omitted.]
The trial court imposed joint and several liability on both
Jensen/Handex and Sacknowitz for all of plaintiff's damages.
Sacknowitz unsuccessfully moved for a new trial or,
alternatively, a remittitur; Jensen/Handex unsuccessfully moved
for a new trial only. Jensen/Handex then appealed to the
Appellate Division. In an unpublished opinion, that court found
that the trial court had improperly dismissed Soden from the suit
as a matter of law. The court determined that Soden's alleged
admission to the police that she had stopped short raised a fact
question, requiring a jury to consider whether the first
collision resulted in part from Soden's negligence in stopping
suddenly.
Next, the Appellate Division held that the jury verdict was
incomplete because the jury did not compare the negligence of all
parties responsible for either the first or second impacts
pursuant to section 5.2 of the Comparative Negligence Act,
N.J.S.A. 2A:15-5.1 to -5.3. The court also determined that
Jensen/Handex's failure to object to the verdict sheet pursuant
to Rule 4:39-1 did not constitute a waiver of the right to have a
jury allocate liability. The court held that both counsel and
the court were initially unaware of the omissions, and that the
absence of an objection to the charge should not prejudice
Jensen/Handex.
Turning to the trial court's molded verdict, the Appellate
Division found the post-verdict allocation of liability to be "an
invasion of the jury's province." Although the court reversed
the liability aspects of the molded judgment, it preserved
several of the jury's determinations. The Appellate Division did
not disturb the following jury findings: (1) the first impact
was a proximate cause of the second; (2) Sacknowitz's conduct was
negligent and a proximate cause of the second impact; and (3)
Campione was negligent and a proximate cause of his injuries
resulting from the second impact.
The Appellate Division also declined to set aside the jury's
damage awards. The court directed that the $300,000 awarded for
injuries attributable to the second impact be allocated
"according to the percentages to be decided by the jury on
remand." Concerning the $450,000 in unallocated damages, the
court held each responsible defendant jointly and severally
liable. Citing Hill v. Macomber,
103 N.J. Super. 127, 136 (App.
Div. 1968), the court determined that joint and several liability
is appropriate in successive-impact cases if the injuries are
indivisible and cannot be allocated with reasonable certainty.
Finally, the court dismissed as meritless Jensen/Handex's claim
that the trial court erred in refusing to admit Campione's tax
returns.
Jensen/Handex moved for reconsideration because of the
Appellate Division's failure to apply the provisions of the
Comparative Negligence Act to the unallocated damages.
Jensen/Handex also argued, once again, that the trial court erred
in not allowing Campione's tax returns to be introduced at trial.
The Appellate Division issued a supplemental opinion. The
modified opinion held each responsible defendant liable for a
share of the $450,000 award, and indicated that "[t]he share to
be recovered from each defendant is to be determined pursuant to
N.J.S.A. 2A:15-5.2." However, the opinion continued to specify
that "[a]ll parties responsible for either the first or second
impact are jointly and severally liable for the $450,000 award."
The court declined to change its disposition concerning the
admissibility of Campione's tax returns.
Jensen/Handex filed a petition for certification contesting
the Appellate Division's imposition on it of joint and several
liability for the unallocated damages and the exclusion from
evidence of Campione's tax returns. Campione filed a cross-petition, asserting that Jensen/Handex's failure to object to the
special verdict sheet constituted a waiver, pursuant to Rule
4:39-1, of the right to have the jury apportion fault for the
second accident, and that the Appellate Division erred in
reversing the trial court's grant of judgment in favor of Soden.
We granted certification on Jensen/Handex's petition. Initially,
we denied Campione's cross-petition.
143 N.J. 517 (1995).
Subsequently, having reconsidered our order of denial, we vacated
that order and granted the cross-petition. ___ N.J. ___ (1997).
II
A
The Legislature enacted the Comparative Negligence Act
(Act), L. 1987, c. 146, to ameliorate the harsh results attendant
to the common-law doctrine of contributory negligence. Ostrowski
v. Azzara,
111 N.J. 429, 437 (1988). That doctrine foreclosed
recovery for any plaintiff found even marginally responsible for
his or her injuries. Blazovic v. Andrich,
124 N.J. 90, 97
(1991). Instead of that "all-or-nothing" approach, the Act
permits apportionment of liability relative to fault. Ibid.
Under the Act, the extent of each party's negligence, in the form
of a percentage, is determined by the finder of fact. N.J.S.A.
2A:15-5.2b. The court then molds the judgment consonant with
those percentages. N.J.S.A. 2A:15-5.2c. If a claimant's
negligence is equal to or less than that of the defendant, that
plaintiff's recovery is not barred, but merely reduced by his or
her percentage of responsibility. N.J.S.A. 2A:15-5.1.
In 1987, the Legislature amended the Act and modified joint
and several liability. L. 1987, c. 325; see Senate Judiciary
Committee, Statement to Senate Bill No. 2703, at 1 (Oct. 30,
1986) (indicating specific legislative intent to modify joint and
several liability). After those changes, only a defendant
determined to be 60% or more responsible for all damages is
liable for the entire award. N.J.S.A. 2A:15-5.3a. A defendant
found more than 20% but less than 60% responsible is liable for
all economic damages but for only that percentage of noneconomic
damages directly attributable to that defendant. N.J.S.A. 2A:15-5.3b. Defendants found 20% or less responsible for damages are
liable for only that percentage of the award directly
attributable to their negligence.
(See footnote 1) N.J.S.A. 2A:15-5.3c. Hill
v. Macomber, supra,
103 N.J. Super. 127, on which the Appellate
Division relied in holding that joint and several liability is
appropriate in successive-impact cases if the injuries cannot be
allocated, would appear to be inconsistent with the Legislature's
modification of the common-law rule of joint and several
liability.
B
Although rare, a case may arise where damages cannot be
apportioned between two or more accidents. One longstanding
judicial response has been to hold each culpable defendant
jointly and severally liable for the unapportionable damages.
See, e.g., Fowler V. Harper & Fleming James, Jr., The Law of
Torts § 10.1, at 4-5 (2d ed. 1986) (noting increasing tendency to
hold parties jointly and severally responsible for indivisible
harms caused by independent but concurring tortious acts); Roy D.
Jackson, Jr., Joint Torts and Several Liability,
17 Tex. L. Rev.
399, 407-08 (1939) (noting that most American jurisdictions have
applied joint and several liability where damages are "patent[ly]
impossible" to apportion); William L. Prosser, Joint Torts and
Several Liability,
25 Cal. L. Rev. 413, 439 (1937) (noting that,
if no logical basis for apportionment of damages exists, joint
and several liability applies). At least one jurisdiction has
established that a trial judge commits reversible error when he
allows a jury to attempt to apportion damages for an
"unapportionable" injury. See Ex parte City of Huntsville,
456 So.2d 72, 74 (Ala. 1984), overruled on other grounds by Diemert
v. City of Mobile,
474 So.2d 663 (Ala. 1985); see also Brown v.
Philadelphia College of Osteopathic Med.,
674 A.2d 1130, 1137
(Pa. Super. Ct. 1996) (finding that trial court is to determine
as matter of law whether defendants are joint tortfeasors and
therefore subject to joint and several liability); cf. Pure Gas &
Chem. Co. v. Cook,
526 P.2d 986, 989 (Wyo. 1974) ("That a jury
cannot properly apportion damages between joint tortfeasors has
almost universal recognition.").
Taking a different approach, trial courts in Hawaii inform
the jury that it is their duty to determine, by a preponderance
of the evidence, how much of the plaintiff's damages are
attributable to each defendant's negligence. See Loui v. Oakley,
438 P.2d 393, 396-97 (Haw. 1968). If, however, the jury is
unable to do so precisely, it may make a "rough apportionment."
Ibid.; see also Jenkins v. Pennsylvania R.R.,
67 N.J.L. 331, 334
(E. & A. 1902) (finding that if harm is functionally
unapportionable and jury does not have adequate information to
allocate damages precisely, "the approved practice is to leave it
to the good sense of the jury, as reasonable men, to form, from
the evidence, the best estimate that can be made under the
circumstances . . . ."); Prosser, supra, at 439 (noting that
difficulty of proof of apportionment is resolved "to some extent
by giving the jury a comparatively free hand"). The Court in
Loui, supra, observed that if the jury is unable to make even a
rough apportionment, it is to apportion damages equally among the
various accidents. 438 P.
2d at 397. We address, infra at ___
(slip op. at 24-25), the appropriate procedure for a trial court
to follow in attempting to allocate damages between successive
accidents.
C
Another significant issue that we must resolve concerns the
ability of a trial court to make discrete findings of fact in
order to save an incomplete special verdict. We note that the
Act contemplates that, in order to apportion liability, the
factfinder should compare the fault of all parties whose
negligence was a proximate cause of the plaintiff's injuries.
Bendar v. Rosen,
247 N.J. Super. 219, 233 (App. Div. 1991). A
necessary precursor to such an apportionment is the submission of
clear, accurate, and complete interrogatories to the jury. See
Benson v. Brown,
276 N.J. Super. 553, 564-65 (App. Div. 1994)
(observing importance of proper framing of jury verdict
questions); Geherty v. Moore,
238 N.J. Super. 463, 474-75 (App.
Div. 1990) (reminding courts that inartful phrasing of jury
questions encourages inconsistent answers and omissions in the
verdict). Counsel should be given the opportunity to participate
in the preparation of jury interrogatories. See Benson, supra,
276 N.J. Super. at 565. Attorneys are responsible for advocating
that jury interrogatories fairly reflect their clients' factual
and legal contentions. See Dubak v. Burdette Tomlin Mem'l Hosp.,
233 N.J. Super. 441, 457 (App. Div.), certif. denied,
117 N.J. 48
(1989); see also Benson, supra, 276 N.J. Super. at 565
(emphasizing that framing of jury questions and interrogatories
requires participation by counsel). That duty is particularly
pressing if numerous legal issues are presented, see Dubak,
supra, 233 N.J. Super. at 457, and if, as here, proper
apportionment of damages is entirely contingent on the jury's
answers to interrogatories.
Rule 4:39-1 enables trial courts to require juries to return
special verdicts in the form of special written findings upon
each fact at issue in the case. The rule further provides that
"[i]f in doing so the court omits any issue of fact raised by the
pleadings . . . [t]he court may make a finding as to an omitted
issue." R. 4:39-1. In this action, the trial court failed to
submit two relevant interrogatories to the jury, first,
concerning the extent to which the first accident contributed to
the second accident, and second, instructing the jury to attempt
to apportion the so-called unallocated damages between the two
accidents. As a result, the jury rendered a special verdict that
failed to account for the precise liability of all parties.
After recognizing that error, the trial court, pursuant to Rule
4:39-1, made findings of fact concerning the omitted issues.
A special verdict is one in which the jury finds all the
facts and the court renders a final decision based on those
facts. See Nylander v. Rogers,
41 N.J. 236, 240-41 (1963). A
special verdict containing findings on all material factual
issues in the case is rendered in lieu of a general verdict.
Special verdicts are helpful to a jury because, by identifying
each critical fact to be resolved, they clarify and simplify
otherwise complex issues. In distilling and resolving the
genuine issues through special verdicts, an appellate court is
often aided immeasurably in its review of the case. In short,
special verdicts through the use of detailed interrogatories
"make both a jury and a reviewing court so much the wiser and so
much less confused." Nowell v. Universal Elec. Co.,
792 F.2d 1310, 1317 (5th Cir.), cert. denied,
479 U.S. 987, 107 S. Ct.
578,
93 L. Ed.2d 581 (1986) (citing Ware v. Reed,
709 F.2d 345,
355 (5th Cir. 1983)).
New Jersey first adopted the use of the special verdict in
1948 when Revised Rule 3:49-1 was adopted. N.J. Court Rules, R.
4:50-1 (1953). That rule subsequently has been amended and is
currently Rule 4:39-1, which provides, in pertinent part:
[t]he Court may require a jury to return only
a special verdict in the form of a special
written finding upon each issue of fact, in
which case it may submit to the jury either
written questions which can be categorically
or briefly answered. . . . If in so doing
the court omits any issue of fact raised by
the pleadings or by the evidence, each party
waives the right to a trial by jury of the
issues so omitted unless before the jury
retires submission to the jury is demanded.
The court may make a finding as to an issue
omitted without such demand, or, if it fails
to do so, it shall be deemed to have made a
finding in accord with the judgment on the
special verdict.
[Emphasis added.]
Because Rule 4:39-1 mirrors Federal Rule of Civil Procedure
49(a), the history and subsequent interpretation of Rule 49(a) is
relevant to an understanding of our own rule. See New Jersey
Supreme Court, Tentative Draft, New Jersey Court Rules, Comment 1
on R. 3:49-1 at 193 (1947) (Tentative Draft) (stating that New
Jersey's special verdict rule "is Federal Civil Rule 49(a)").
Federal Rule 49(a) was adopted in 1938. Comment, Special
Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74
Yale L.J. 483, 483 (1965) (Special Verdicts). The rule
represented the first time that federal district courts were
explicitly authorized to order a jury to return a special
verdict. Ibid. Rule 49(a) formally adopted a procedure that was
already used in many state courts. In fact, by 1925, a majority
of states had authorized the use of the special verdict as an
alternative to the standard general verdict. Id. at 487; see
also Bree v. Jalbert,
87 N.J. Super. 452, 462-66 (Law Div. 1965)
(reciting history of the use of special verdicts in New Jersey
prior to the adoption of the special verdict rule in 1948),
aff'd,
91 N.J. Super. 38 (App. Div. 1966).
Although the special verdict had been widely used by 1925,
it failed to flourish in large part because of the numerous
pitfalls that its technical requirements presented to litigants.
See Special Verdicts, supra, 74 Yale L.J. at 487. Those problems
included the prospect that: (1) immaterial matters might be
included; (2) material matters might be omitted; (3) conclusions
of law instead of facts could be found; and (4) questions could
be put to the jury in such form as to be uncertain, misleading or
prejudicial. Edson R. Sunderland, Verdicts, General and Special,
29 Yale L.J. 253, 261 (1920). The pitfalls inherent in special
verdicts resulted in errors that caused the party with the burden
of proof either to lose entirely, or to endure the penalty of a
costly retrial. Id. at 263. As a result, the special verdict
fell into disfavor.
The general verdict, because of its absence of
particularized fact finding and lack of specificity determining
essential but subsidiary issues, did not reveal underlying
deliberative errors, and it therefore could be accepted as a just
resolution of the controversy. The general verdict thus
remained, for reasons of practicality and convenience, preferable
to the risk-laden special verdict. As Sunderland stated in his
oft-cited 1920 article:
The real objection to the special verdict is
that it is an honest portrayal of the truth .
. . . [T]he great technical merit of the
general verdict . . . [is that it] covers up
all the shortcomings which frail human nature
is unable to eliminate from the trial of a
case. In the abysmal abstraction of the
general verdict concrete details are
swallowed up, and the eye of the law,
searching anxiously for the realization of
logical perfection, is satisfied. In short,
the general verdict is valued for what it
does, not for what it is. It serves as the
great procedural opiate, which draws the
curtain upon human errors and soothes us with
the assurance that we have attained the
unattainable.
[Id. at 262.]
Sunderland concluded that what was needed was "a method of using
the principle of the special verdict under conditions which will
make it a practical, workable tool for the ordinary lawyer in the
ordinary case." Id. at 263.
Federal Rule 49(a) was designed to combat the formalisms and
technicalities that made the common-law special verdict procedure
hazardous to litigants. See Special Verdicts, supra, 74 Yale
L.J. at 502. In fact, the main thrust of the rule was directed
toward the elimination of the major hazard that had made the use
of the special verdict problematic and impractical, namely, the
requirement that the jury return a finding on every essential
element of the cause of action. Id. at 502. Federal Rule 49(a)
overcame that hazard through the use of the doctrine of waiver
whereby the trial court could rectify omissions and complete the
special-verdict process through necessary factfinding. See
ibid.; Edward J. Devitt et al., Federal Jury Practice and
Instructions § 6.02 (1992) ("The common law technical
difficulties [of the special verdict] were obviated by providing
that there would be a waiver of jury trials on those issues not
submitted to the jury.").
The opening sentence of Federal Rule 49(a) indicates that
when a special verdict is used, the court should request the jury
to return a finding on "each issue of fact." Fed. R. Civ. P.
49(a). However, the rule goes on to provide that the omission of
a finding on "any issue of fact" is not necessarily fatal to a
judgment entered on a special verdict. Ibid. Unless a party
objects to the omission of an issue from the questions submitted,
the parties waive their right to a jury trial on that issue.
Ibid. If an issue is omitted without objection, the trial judge
is authorized to make the necessary factual finding explicitly;
and if the trial court fails to make such a finding, an appellate
court is to assume that the required finding was made in
accordance with the judgment rendered by the trial court. Ibid.;
see also 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2507 (2d ed. 1995) (stating that federal
rule "has the salutary purpose of giving the judge an opportunity
to correct any inadvertent failure to submit [an] issue to the
jury").
Federal courts have consistently enforced the waiver component of the special verdict rule. See Bradway v. Gonzales, 26 F.3d 313, 317 (2d Cir. 1994) ("[F]ailure to challenge the omission of an issue from a Rule 49(a) verdict form before the jury retires to deliberate constitutes a waiver of the right to a trial by jury on that issue."); Kavanaugh v. Greenlee Tool Co., 944 F.2d 7, 11 (1st Cir. 1991) ("It is well settled that a litigant who accedes to the form of a special interrogatory will not be heard to complain after the fact. If a slip has been made, the parties detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial when matters turn out not to their liking.") (quoting Anderson v. Cryovac, 862 F.2d 910, 918 (1st Cir. 1988)); Anderson, supra, 862 F. 2d at 918 ("The net result is that the rule invests the trial judge with extensive powers to resolve issues which should have been -- but were not -- covered by the interrogatories."); J.C. Motor Lines, Inc. v. Trailways Bus Sys., Inc., 689 F.2d 599, 601-02 (5th Cir. 1982) (stating that courts long have extolled use of special interrogatories under Rule 49(a) and that omissions of issues of fact may be cured through use of waiver); Hyde v. Land-of-Sky Reg'l Council, 572 F.2d 988, 991 (4th Cir. 1978) (concluding that under Rule 49(a) defendant waived right to have jury decide issues of authority and ratification in contract action where parties failed to object to their omission); Fredonia Broadcasting Corp. v. R.C.A. Corp., 481 F.2d 781, 796 (5th Cir. 1973) (stating that if party fails to object to
omission of question from special verdict form, it waives jury
trial on that issue); Brenham v. Southern Pacific Co.,
328 F.
Supp. 119, 123 (W.D. La. 1971) (stating that where jury was not
asked whether railroad's negligence was sufficient to constitute
proximate cause of accident, district court would exercise
authority under Rule 49(a) to make that federal determination)
aff'd,
469 F.2d 1095 (5th Cir. 1972), cert. denied,
409 U.S. 1061,
93 S. Ct. 560,
34 L. Ed.2d 513 (1972); see also John H.
Brown, Federal Special Verdicts: The Doubt Eliminator,
44 F.R.D. 338, 349 (1967) ("The Rule itself . . . takes care of one of the
greatest drawbacks to a common law special verdict -- the
necessity that every element of recovery or defense had to be
submitted or the verdict was incomplete and hence legally
ineffectual."). But see Kinnel v. Mid-Atlantic Mausoleums, Inc.,
850 F.2d 958, 965-66 (3d Cir. 1988) (holding that where special
verdict form in suit against mausoleum contractor and its
president did not require jury to make findings concerning
president's individual liability, trial court under Rule 49(a),
although authorized to make subsidiary findings that would
complete jury verdict, was not authorized to determine ultimate
liability of president).
III
Before considering application of the special verdict waiver rule to the circumstances of this appeal, we first address the
effect of the Comparative Negligence Act on the trial court's
imposition of liability for the unallocated damages.
A
The Act limited the authority of the Appellate Division to
impose joint and several liability against both Jensen/Handex and
Sacknowitz for the unallocated damages. See Senate Judiciary
Committee, supra, at 1. Under the Act as amended, only a
defendant found 60% or more responsible for the total damages is
liable for the entire award. N.J.S.A. 2A:15-5.3a. As noted, the
trial court had determined Jensen/Handex to be 100% responsible
for the first impact and 60% responsible for the second impact.
(In assigning 70% of the unallocated damages to Jensen/Handex and
30% to Sacknowitz, the trial court apparently made a rough
determination that approximately 75% of those damages were
attributable to the second impact and 25% to the first impact.)
(See footnote 2)
Because the trial court's liability determination imposed on
Jensen/Handex over 60% of the responsibility for plaintiff's
total damages, the trial court was fully authorized to impose on
Jensen/Handex joint and several liability for all of plaintiff's
damages. However, the trial court's imposition of joint and
several liability on defendant Sacknowitz for all plaintiff's
damages, and the Appellate Division's imposition on Sacknowitz of
joint and several liability for only the unallocated damages,
cannot be reconciled with the Act.
The Appellate Division relied on Hill v. Macomber, supra,
103 N.J. Super. 127, in determining that all parties responsible
for either the first or second impact would be jointly and
severally liable for the unallocated damages. Hill was decided
on facts similar to those in this case. In Hill, two cars
collided, injuring both vehicles' occupants. Id. at 131-32.
Shortly thereafter, another vehicle struck one of the disabled
cars. Id. at 132. At trial, the occupants of the vehicles were
unable to provide testimony allocating injuries as between the
two impacts. Id. at 134. Medical testimony was similarly
unhelpful. Ibid. The court, relying on the majority view at
that time, held that where there are collisions in rapid
succession and no proofs permitting allocation of damages among
the tortfeasors, both tortfeasors are to be held jointly and
severally liable. Id. at 136-37. Because Hill was decided
before the advent of the Act and the Legislature's subsequent
modification of joint and several liability, the Appellate
Division incorrectly relied on Hill as a precedent authorizing
the imposition of joint and several liability for the unallocated
damages. Although the Act 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.
Although unnecessary to our disposition, we add the
following observations. In our view, the Act contemplates an
allocation of damages caused by successive accidents in order to
effectuate the allocation of liability among the responsible
defendants. 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. Cf. Brown, supra, 674 A.
2d at 1137
(holding that court is to determine as matter of law whether
defendants are joint tortfeasors). 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. See,
e.g., Jenkins, supra, 67 N.J.L. at 334; Loui, supra, 438 P.
2d at
396-97; Prosser, supra, at 439. 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. Cf. Loui, supra, 438 P.
2d at 397
(instructing that juries should apportion fault equally among
various accidents if unable to make rough apportionment); Bendar,
supra, 247 N.J. Super. at 234 (suggesting like result if jury is
unable to apportion fault among tortfeasors). If the court
concludes that the jury would be capable of apportioning damages,
the jury should be instructed to do so.
B
When this Court first proposed the adoption of a special
verdict rule, we recognized that the rule would eliminate the
perils inherent in the common-law practice:
The procedure [regarding special verdicts at
common law] is so technical that a person
having the burden of proof can hardly risk a
special verdict for fear that it will be
[inartfully] drawn and may inadvertently omit
some fact or set it up in an improper manner
so that the special verdict will not support
a judgment in his favor. The new rule
provides a very effective and simple remedy .
. . [as it] takes all the technical risks out
of the special verdict.
[Tentative Draft, supra, at 193 (emphasis
added) (quoting Edson R. Sunderland, The New
Federal Rules,
14 W. Va. L.Q. 5, 28 (1938)).]
In Nylander, supra, 41 N.J. at 240, we explained that the purpose
of our special verdict rule was to make possible "the
ascertainment and isolation of any error, consequent frequent
avoidance of full-blown appeals and full-scale retrials, and the
more exact administration of justice." See Pressler, Current
N.J. Court Rules, comment on R. 4:39-1 (1997).
Although there is a dearth of reported opinions concerning
our special verdict rule, two Appellate Division cases make clear
that parties waive their right to a jury trial concerning issues
not raised by special verdict interrogatories unless they object
to such omissions prior to submission to the jury. In Stella v.
Dean Witter Reynolds, Inc.,
241 N.J. Super. 55 (App. Div.),
certif. denied,
122 N.J. 418 (1990), an investor brought suit
against a stockbroker, a brokerage house and two banks. The jury
verdict awarded the investor $166,000 in punitive damages against
one of the banks, but no compensatory damages. Id. at 69. In
order to collect punitive damages in the absence of an award of
compensatory damages, the Appellate Division determined that the
investor must first demonstrate that he suffered "some harm" as a
result of the bank's conduct. Id. at 70. At trial, however, the
jury had made no sustainable finding in respect of that issue --
the jury simply had never been asked whether or not the investor
had suffered any harm as a result of the bank's practices. Ibid.
The Appellate Division determined that the special verdict rule,
Rule 4:39-1, provides a remedy to correct the omission without a
new trial on the issue of whether the investor had suffered harm:
By virtue of R. 4:39-1, "If . . . the court
omits any issue of fact raised by the
pleadings or by the evidence, each party
waives his right to a trial by jury of the
issues so omitted unless before the jury
retires he demands its submission to the
jury." In the present case . . . there was
no such demand.
[Id. at 72 (quoting R. 4:39-1).]
In the absence of a demand by either party, both parties waived
their right to a jury trial on the issue of harm, and the
Appellate Division, therefore, remanded the case to the trial
court for a finding on that issue. Ibid.
Similarly, in Duall Building Restoration, Inc. v. 1143 East
Jersey Avenue Associates,
279 N.J. Super. 346 (1995), the jury
returned a special verdict by answering questions on material
issues of disputed fact. 1143 East Jersey, the building owner
that claimed damages when a waterproofing paint peeled from the
sides of its building, pleaded breach of implied warranty, but no
party requested the court to submit questions to the jury about
whether there had been a breach, pursuant to N.J.S.A. 12A:2-315,
of the implied warranty of fitness for a particular purpose or
alerted the court to the fact that language of one interrogatory
failed to track any implied warranty provision of the Uniform
Commercial Code. Id. at 360. Noting that no party objected to
the relevant interrogatory or to the trial court's instruction
about its meaning, the Appellate Division concluded that the jury
understood that it was to determine whether the paint contractor
relied on the paint manufacturer's assurance that the paint used
was suitable for the building in question. Consequently, the
Appellate Division held that if the "court's jury charge or
interrogatories `omit[ted] any issue of fact raised by the
pleadings or by the evidence, [the court is] deemed to have made
a finding in accord with the judgment on the special verdict.'"
Ibid. (quoting Rule 4:39-1).
Although in this case the Appellate Division observed that
application of the waiver rule would be inappropriate because of
counsel's lack of opportunity to object to the special verdict
form, we disagree with that conclusion. The record reveals that
a draft special verdict form prepared by the trial court was
discussed with counsel at the charge conference two days before
the trial ended. Although the final version of the special
verdict form was not distributed to counsel until the trial court
substantially had completed its jury charge, the court afforded
counsel an opportunity to examine the form and raise questions
and objections. Based on counsel's comments, the trial court
issued clarifying instructions concerning several
interrogatories. Despite the obvious significance of a jury
determination concerning whether and the extent to which the
initial impact constituted a proximate cause of the second
impact, neither counsel nor the court noticed the omission of
such an interrogatory from the verdict form. Nor was any
objection to the form asserted during the approximately five hour
period during which the jury deliberated before returning its
verdict.
We are mindful that failure to enforce the waiver provision
of Rule 4:39-1 would require a substantial re-run of the eleven-day trial in order for a new jury adequately to hear and
determine the liability issues left unresolved by the Appellate
Division's disposition. We also note that the litigation
concerns an accident that occurred in June 1989, over eight years
ago.
Moreover, the findings of fact made by the trial court
pursuant to our special verdict rule to rectify omitted questions
were wholly supportable on the record. As noted, supra, at ___
(slip op. at 23), the trial court's apportionment of 70% of the
unallocated damages to Jensen/Handex and 30% to Sacknowitz
appears to reflect its determination that approximately 75% of
those damages were attributable to the second impact and 25% to
the first impact. That conclusion finds ample support in the
record. The trial court also expressed its view that, were it
not for the first accident, the second impact would not have
occurred, and that therefore the first impact was the primary
cause of the second collision. Consistent with that view, which
is also amply supported by the record, and with its holding that
Jensen/Handex was one hundred percent responsible for the first
impact, the trial court found Jensen/Handex 60%, Sacknowitz 35%,
and Campione 5% responsible for the second collision.
The factual findings rendered by the trial court pursuant to
the special verdict rule were reasonable in light of the evidence
presented during trial. Furthermore, none of the trial court's
findings contradicted the incomplete jury determinations. Such
findings of fact should therefore not be disturbed unless "they
are so wholly insupportable as to result in a denial of justice."
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 483-84 (1974); see also In re Return of Weapons, __ N.J. __,
__ (1997) ("[A]n appellate court should not disturb a trial
court's fact-findings unless those findings would work an
injustice.").
The foregoing considerations, combined with the important
policy considerations that led to the inclusion of the waiver
provision in Rule 4:39-1, persuade us that the trial court's
supplemental factfinding should not be disturbed and that the
waiver provision of Rule 4:39-1 should be enforced in view of the
parties' failure to object to the omission of issues from the
special verdict form.
C
The Appellate Division also reversed the trial court's
summary determination that defendant Soden bore no responsibility
for the first rear-end collision. Defendant Soden's vehicle was
hit from behind after she had stopped at a red light while
traveling south on Route 9. Defendant Jansen/Hendex's vehicle, a
light-duty pickup truck, rear-ended Soden's car immediately after
the light had turned green. It was raining at the time of the
accident and evidence was presented that the roads were slick.
Although testimony was adduced that suggested that Soden stopped
short because the vehicle in front of her stopped suddenly, which
Soden disputed, the trial court concluded that the undisputed
evidence demonstrated that if indeed Soden stopped short she did
so for good reason and without colliding with the vehicle in
front of her. Consistent with the principles articulated in
Dolson v. Anastasia,
55 N.J. 2 (1969), the trial court directed a
verdict in favor of Soden. In Dolson, we observed:
It is elementary that a following car in the
same lane of traffic is obligated to maintain
a reasonably safe distance behind the car
ahead, having due regard to the speed of the
preceding vehicle and the traffic upon and
condition of the highway. Failure to do so
resulting in a collision, is negligence and a
jury should be so instructed.
[Id. at 10 (citation omitted).]
In Brill v. Guardian Life Insurance Co. of America, we
recently observed that "a determination whether there exists a
`genuine issue' of material fact that precludes summary judgment
requires the motion judge to consider whether the competent
evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party."
142 N.J. 520 (1995). "If there
exists a single, unavoidable resolution of the alleged disputed
issue of fact, that issue should be considered insufficient to
constitute a `genuine' issue of material fact . . . ." Ibid.
In view of the evidence presented at trial that the roads
were wet, that Soden's vehicle was already stopped for a red
light, that there were no obstructions or distractions, and that
the Soden's vehicle was hit from behind, the trial court's entry
of judgment in favor of Soden should not have been disturbed.
D
Concerning the admissibility of tax returns, in Ullmann v.
Hartford Fire Ins. Co.,
87 N.J. Super. 409, 415 (App. Div. 1965),
the Appellate Division observed that "New Jersey, in common with
most jurisdictions in which the question has arisen, has
permitted discovery and inspection of income tax returns for good
cause." Disclosure of a litigant's tax return is, however, a
highly sensitive endeavor. See, e.g., Herman v. Sunsh