(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).
Argued January 4, 2000 -- Decided February 23, 2000
PER CURIAM
On June 18, 1990, Dominic Marinelli slept over his cousin Sean McDonough's house. Sean, age sixteen,
accidentally shot eleven-year-old Dominic in the left eye with a pellet gun. Sean's seventeen-year-old friend, Kyle
Ford, had purchased the gun for Sean at a K-Mart in Bristol, Pennsylvania. Sean kept the gun in his bedroom at the
Cinnaminson, New Jersey home of his father, John McDonough.
The Marinellis sued K-Mart, Ford and John and Sean McDonough for Dominic's injuries. A jury returned
a verdict in favor of the Marinellis against all defendants, except K-Mart. The jury found that K-Mart sold the gun to
Ford but that the sale was not the proximate cause of the accident and injuries; that the transfer of the gun from Ford
to Sean was a proximate cause of the accident and injuries; that Sean and his father, John, were negligent and that the
negligence was a proximate cause of the accident and injuries; and that Ford was 10" liable, Sean 40" liable and
John 50" liable for the injuries to Dominic Marinelli.
The trial judge granted Marinellis' motion for a new trial as to pain and suffering and disability damages
(non-economic damages) but denied their motion for a new trial on all issues.
The Marinellis appealed the denial of the motion for a new trial as to all issues and their subsequent motion
for reconsideration. The Appellate Division granted the Marinellis' motion for leave to appeal and defendants',
other than K-Mart, cross-appeal from the grant of a new trial as to non-economic damages. The Appellate Division
affirmed the denial of Marinellis' motion for a new trial on liability; the amount of damages awarded to Dominic's
mother for emotional distress; and the grant of a new trial on non-economic damages. The Appellate Division
reversed the decision of the trial court denying a new trial on economic damages.
The Supreme Court granted certification and summarily remanded the matter to the Appellate Division to
consider the choice-of-law issue; specifically, whether Ford would be liable for the entire judgment (or anything
above the McDonoughs' insurance policy limits) as Pennsylvania law would require, or only 10" responsibility
found by the jury, as New Jersey law would require.
The Appellate Division applied the governmental-interest analysis test to reach its conclusion. First, the
Appellate Division found that there was a conflict between Pennsylvania and New Jersey comparative negligence
law pertaining to the recovery of damages. In a Pennsylvania suit where multiple parties are found liable, any
defendant against whom recovery is allowed can be required to pay 100" of the judgment, while under the New
Jersey law in effect at the time of the accident, a defendant could be required to pay the entire judgment only when
he or she was 60" or more liable for the total damages.
Upon determining that a conflict existed, the Appellate Division sought to determine the interest that each
state has with respect to the specific issue in dispute. The court noted that there are two governmental policies and
interests recognized in choice-of-law determinations involving torts:1) the state's interests in assuring full and fair
compensation for its injured residents; and 2) deterrence of tortious misconduct on the part of its residents. The
Appellate Division reasoned that while Pennsylvania had a strong interest in the compensation of its own residents, it
had no interest in the compensation of out-of-state residents, such as the Marinellis, who live in New Jersey. The
court noted that in the context of the choice-of-law determination, the fact that Pennsylvania law would afford the
Marinellis greater recovery was irrelevant. As such, the court held that New Jersey had the greater interest in
guarding against injury within its borders and in protecting its innocent victims. New Jersey law of damages, even
though it gives less protection to the Marinellis, is the proper law to apply.
The Appellate Division also held that New Jersey law controls on the issue of contribution since New Jersey
substantive law controlled. The State whose substantive law controls also governs the question of damages.
Accordingly, the court concluded that the entire judgment could not be collected from Ford. As determined by the
jury, Ford would only be responsible for 10" of the total damages. The court remanded the matter to the trial court
for proceedings consistent with its opinion.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the written opinion
below. Under the governmental interest analysis, New Jersey comparative negligence law applies and the
New Jersey law of damages, even though it gives less protection to the Marinellis, is to be applied.
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, LONG
and VERNIERO join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
112 September Term 1998
DOMINIC MARINELLI, a minor by
and through his mother and
Guardian ad Litem Anne Marie
Marinelli and ANNE MARIE
MARINELLI, individually,
Plaintiffs-Appellants,
v.
K-MART CORPORATION, KYLE
FORD, JOHN McDONOUGH and SEAN
McDONOUGH, jointly, severally
and/or in the alternative,
Defendants-Respondents,
and
RAY CLERK, (a fictitious
named employee of the
defendant K-Mart
Corporation),
Defendant.
Argued January 4, 2000-- Decided February 23, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
318 N.J. 554 (1999).
Vincent J. Ciecka argued the cause for
appellants.
James D. Butler argued the cause for
respondent Kyle Ford (Mr. Butler, attorney;
Jeffrey Marder, on the brief).
Tricia E. Habert argued the cause for
respondent John McDonough (Crawshaw,
Mayfield, Turner, O'Mara, Donnelly &
McBride, attorneys).
Timothy J. Galanaugh argued the cause for
respondent Sean McDonough (Murphy and
O'Connor, attorneys).
Thomas D. Monte, Jr., argued the cause for
respondent K-Mart Corporation (Monte, Sachs
& Borowsky, attorneys).
PER CURIAM
The judgment is affirmed, substantially for the reasons
expressed in Judge Stern's opinion of the Appellate Division,
reported at
318 N.J. Super. 554 (1999).
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN,
COLEMAN, LONG, and VERNIERO join in this PER CURIAM opinion.
NO. A-112 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DOMINIC MARINELLI, a minor by and
through his mother and Guardian ad
Litem Anne Marie Marinelli and ANNE
MARIE MARINELLI, individually,
Plaintiffs-Appellants,
v.
K-MART CORPORATION, KYLE FORD,
JOHN McDONOUGH and SEAN
McDONOUGH, jointly, severally and/or
in the alternative,
Defendants-Respondents,
and
RAY CLERK, (a fictitious named employee
of the defendant K-Mart Corporation),
Defendant.
DECIDED February 23, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY