'
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3857-95T5
DOMINIC MARINELLI, a minor by
and through his mother and Guardian
Ad Litem, ANNE MARIE
MARINELLI and ANNE MARIE
MARINELLI, individually,
Plaintiffs-Appellants/
Cross-Respondents,
v.
K-MART CORPORATION and
RAY CLERK, a fictitious unknown
employee of K-Mart,
Defendants-Respondents,
and
KYLE FORD, JOHN McDONOUGH and
SEAN McDONOUGH, j/s/a,
Defendants-Respondents/
Cross-Appellants.
_________________________________________________________________
Argued October 28, 1997 - Decided February 23, 1998
Remanded by the Supreme Court of
New Jersey - October 13, 1998
Resubmitted January 26, 1999 - Decided March 9, 1999
Before Judges Stern, Kleiner and Kimmelman.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County.
Vincent J. Ciecka, attorney for appellants
(Mr. Ciecka, on the brief).
James D. Butler, attorney for respondent Kyle
Ford (George Allison, on the brief).
Crawshaw, Mayfield, Turner, O'Mara, Donnelly &
McBride, attorneys for respondent John McDonough
(Linton W. Turner, Jr., and Tricia Habert, on
the brief).
Monte, Sachs & Borowsky, attorneys for respondent
K-Mart Corporation (Thomas D. Monte, Jr., on the
brief).
Murphy and O'Connor, attorneys for respondent
Sean McDonough, rely on brief filed on behalf of
respondent John McDonough.
The opinion of the court was delivered by
STERN, P.J.A.D.
This appeal involves the sale of a pellet gun to a minor in
Pennsylvania and his transfer of the gun there to a New Jersey
minor who shot out the eye of another New Jersey resident in New
Jersey. The case is before us, on remand from the Supreme Court,
to consider a choice-of-law issue not addressed in our original
opinion.
After a jury returned a verdict in favor of plaintiffs, Dominic Marinelli ("plaintiff") and his mother, against all defendants except K-Mart, the trial judge granted plaintiff's motion for a new trial as to "pain & suffering and disability damages" (non-economic damages), but denied their motion for a new trial on all issues. Pursuant to leave granted, plaintiffs appealed from the denial of their motion for a new trial in its entirety and from the denial of their subsequent motion for reconsideration. We also granted defendants, other than K-Mart, leave to cross-appeal from the grant of a new trial as to non-economic damages. They claimed that the verdict should be reinstated. K-Mart contended that the judgment in its favor should be affirmed.
We explained the background in our opinion filed on February 23, 1998:
Plaintiff, Dominic Marinelli, an eleven-year old, was sleeping at the home of his cousin Robert Sean McDonough ("Sean") in Cinnaminson, New Jersey when Sean accidentally shot plaintiff's left eye out with a pellet gun. The gun was bought for Sean by a seventeen-year old friend, defendant Kyle Ford ("Ford"), in Pennsylvania, and brought by Sean to the home of his father John McDonough ("John") in New Jersey. In response to specific interrogatories, the jury found (1) that K-Mart sold the gun to Ford, but that the sale was not "a proximate cause of the accident and injury," (2) that the transfer of the gun by Ford to Sean was a "proximate cause of the accident and in bringing about the injuries to plaintiff," (3) that Sean and John were negligent and that their negligence was "a proximate cause of the accident and injuries," and (4) that Ford was 10" liable, Sean 40" liable, and John 50" liable. Plaintiff was awarded damages in the amount of $206,786.06 -- including economic loss (future wages and medical expenses) in the amount of $127,000, past medical bills amounting to $29,786, and non-economic losses, (including "[p]ain, suffering, disability, impairment, loss of enjoyment of life, inconvenience, mental anguish and emotional distress "), in the amount of $50,000. Plaintiff's mother was awarded $5,000 for her emotional distress. Judgment in favor of K-Mart was entered on January 2, 1996, but on February 2, 1996 the trial judge ordered a new trial on non-economic damages with respect to the remaining defendants.
(Footnotes omitted.)
After considering the issues raised, we affirmed the denial of
plaintiffs' motion for a new trial on liability and the amount of
damages awarded to the plaintiff mother for emotional distress.
We also affirmed the grant of a new trial on non-economic damages
but reversed the denial of a new trial on economic damages.
In our opinion we noted that the trial judge instructed the
jury on Pennsylvania law "concerning the sale or transfer of
pellet guns to minors" and "informed the jurors that if they
found that K-Mart and/or Ford violated the Pennsylvania statute,
[that] defendant must be found negligent as a matter of law." We
further noted that, at plaintiff's request, the judge instructed
the jury "that K-Mart and Ford could be held liable if the
negligence of either or both was a `substantial factor' in
bringing about plaintiff's injury." Accordingly, we found "no
basis on which plaintiff can complain about the charge on
negligence and proximate cause" with respect to the Pennsylvania
defendants' sale and transfer of the gun to Sean McDonough.
In deciding the choice of law issue presented on the appeal,
we also held that New Jersey's comparative negligence law was
properly applied, notwithstanding plaintiff's claim that
Pennsylvania law controlled. We said:
[A]pplying the appropriate "governmental-interest analysis," Veazey v. Doremus,
103 N.J. 244, 247-48 (1986); accord Gantes v.
Kason Corp.,
145 N.J. 478, 484 (1996);
Butkera v. Hudson River Sloop "Clearwater,"
Inc.,
300 N.J. Super. 550, 553 (App. Div.
1997), New Jersey has the "greatest
interest," Veazey, supra, 103 N.J. at 248, in
having its comparative negligence law apply
because the accident occurred here, and the
innocent victim lived here. In any event,
employing our comparative negligence law does
not affect the distinct issues of liability
and recovery of damages. Veazey, supra,;
Restatement (Second) of Conflict of Laws §§
145, 171; see also Grossman v. Club Med
Sales, Inc.,
273 N.J. Super. 42, 51 (App.
Div. 1994); O'Connor v. Busch Gardens,
255 N.J. Super. 545, 547-48 (App. Div. 1992).
Moreover, plaintiffs have pointed to no
conflict in the law of the two states except
for the question of comparative negligence.
See Grossman, supra, 273 N.J. Super. at 49
("It is only after a determination is made
that there is indeed an actual conflict
between the laws ... that the interests of
the respective jurisdictions are analyzed").
And given the finding on liability, any error
in the charge as to damages and comparative
negligence is irrelevant as to K-Mart.
Tindal v. Smith,
299 N.J. Super. 123, 138
(App. Div.), certif. denied,
150 N.J. 28
(1997); Kaplan v. Haines,
96 N.J. Super. 242,
253-55 (App. Div. 1967), aff'd o.b.,
51 N.J. 404 (1968). (Footnotes omitted.)
However, we added in footnote 8:
Whether plaintiffs can collect the
entire judgment from Ford, subject to his
ability to obtain contributions from his
responsible co-defendants, is an issue not
before us and which does not require any new
trial or fact-finding.
Following our remand, the trial judge conducted settlement
discussions and it became apparent that the issue embodied in
footnote 8 of our opinion had to be resolved. Plaintiff now
explains:
The Appellate Division issued its
opinion on February 23, 1998, and the trial
judge, John A. Sweeney, J.S.C., immediately
scheduled a retrial which resulted in
multiple requests for a postponement. On May
11, 1998, a settlement conference was held
before the Honorable John A. Sweeney, J.S.C.
At that time, Judge Sweeney and all parties
agreed that the issue framed by the Appellate
Division in Footnote 8, "Whether plaintiffs
can collect the entire judgment from Ford,
subject to his ability to obtain
contributions from his responsible co-defendants, is an issue not before us and
which does not require any new trial or fact-finding", was a novel issue of general public
importance and that it would be in the
interest of justice to have this issue
resolved by the Supreme Court as soon as
reasonably possible so as this matter could
proceed to a settlement or final judgment.
All parties agreed to waive any objections
regarding timeliness of the Notice of
Petition and Petition for Certification and
agreed to request that the Court accept the
Certification as within time and/or nunc pro
tunc and have pledged to cooperate and file
all necessary pleadings forthwith so as to
expedite the Court's decision of the within
issue which is necessary to bring this matter
to a full and final completion.
On October 13, 1998, the Supreme Court granted certification
and summarily remanded the matter to us "to consider the choice
of law issue raised by the parties and not addressed by the
Appellate Division." Marinelli v. K-Mart Corp.,
156 N.J. 423
(1998). Although plaintiffs (petitioners in the Supreme Court)
now state that "the issue regarding whether New Jersey's or
Pennsylvania's recovery of damages law should apply was never
addressed by the trial court," and (even though a component of
comparative negligence) was not raised before us, and hence was
not raised - at least expressly - in any proceedings before the
petition for certification was filed, we must now answer that
question in light of the Supreme Court's remand.
In order to understand the issue, we refer to some of the trial proofs as recited in our original opinion:
On the evening of June 18, 1990, plaintiff, who was eleven years old, stayed overnight at the home of defendants John and sixteen-year old Sean McDonough. Sean, whose parents are divorced and who turned sixteen just fifteen days before the accident, resided in Cinnaminson, New Jersey, with his father, John. Ford was the son of close friends of Sean's former stepfather and "like a big brother" to Sean. Ford was about two years older than Sean and lived near Sean's mother who Sean visited in Pennsylvania. Ford bought the pellet gun for Sean about "[s]ix or seven months prior to the accident."
Sean kept the pellet gun in a closed
headboard in his bedroom. He usually placed
the gun on the floor while asleep. However,
as plaintiff, who was like Sean's "little
brother" and would often spend the night with
Sean, frequently awoke during the night, Sean
placed it on the shelf above his headboard
that evening.
After he fell asleep, Sean tossed and
turned as a result of a "nightmare about
something" and "kept hitting" the gun with
his hand. He eventually went to place the
gun on the floor, but as he was "raising it
over [his] head, [the gun] went off and
[plaintiff, who had been asleep,] started
screaming."
Sean ran downstairs and informed John
that plaintiff was hurt. John quickly went
upstairs to the bathroom where plaintiff
went, and tried to calm him down. John
telephoned plaintiff's mother and informed
her of the accident. She arrived at John's
house in about ten minutes. She observed
that plaintiff's eye was bleeding, and
immediately drove him to Zurbrugg Memorial
Hospital.
Sean testified that because he knew he
was below the legal age to purchase a gun, he
asked Ford to buy one for him. Sean gave
Ford $50 and told him to "[g]et me what you
can."
Ford testified that he went to the K-Mart store in Bensalem, Pennsylvania, and
purchased the pellet gun there. Ford, who
was born on March 20, 1972, said that he was
"about 17" years old at the time of the
purchase and that he knew Sean was a minor.
Ford estimated that he purchased the gun
between six months and one year prior to the
accident. Ford testified that he simply went
up to the counter in the sporting goods
department where pellet guns were sold and
purchased one. He had no recollection of
what the K-Mart sales clerk looked like or
what the person said. Ford claimed that he
did not tell the sales clerk that he was
eighteen or older and presented no "false
identification." Ford was not aware at the
time of his purchase that Pennsylvania had a
law prohibiting the sale of pellet guns to
persons under eighteen years of age.
Ford gave the pellet gun to Sean,
together with a container of pellets and a
box of cartridges that Ford had also
purchased for him, one or two weeks after
Sean gave him the $50. The transfer occurred
in Pennsylvania. Sean testified that Ford
told him at the time of the transfer that he
had purchased the gun at K-Mart. However,
Ford did not give Sean a receipt, sales
ticket or bag which verified that the gun had
been purchased at K-Mart.
Sean testified that he had some prior
familiarity with firearms. He had
accompanied his stepfather to an armory where
they engaged in target practice. Sean had
used both pellet guns and rifles. Sean's
stepfather gave him instructions on how to
use firearms and informed him of the danger
involved if used incorrectly.
After obtaining the pellet gun from
Ford, Sean brought it to his father's home in
Cinnaminson without John's knowledge. "A
couple of days later," John "came across" the
gun in Sean's room in a pillowcase that
contained some of Sean's clothes. John
estimated that this occurred in January 1990,
about six months before the accident, but he
admitted that "it was so long ago, I really
don't remember." Sean asked John if he could
keep the gun and John agreed after making
sure the gun had a "safety feature" and being
satisfied that Sean "could handle the gun."
John explained that he felt Sean was
responsible because he was aware that Sean
had gained some experience with guns from his
stepfather.
John only spoke to Sean on one occasion
about safety with regard to the gun. This
conversation occurred when John "first
discovered the gun." John told Sean to be
careful with the gun since it was not a toy
and to always keep the safety on when the gun
was loaded. He also instructed Sean to keep
the gun "in his room" "out of sight" and to
never "take it off the property." In
addition, John told Sean that no one else
could use the gun without supervision. He
also instructed Sean to only shoot the gun in
the basement, where Sean had set up a target
range, and to never aim it at a person or
animal. However, John never instructed Sean
to "keep the gun unloaded" in the house.
John had Sean demonstrate to him that he
knew how to handle the gun and was "almost
sure" that Sean showed him that he knew how
to operate the safety on the gun. John shot
the gun himself one time in the basement
while demonstrating to Sean how to operate
the gun in a safe manner. John recalled
having seen the gun on about three occasions
prior to the accident, but was aware that
Sean used to shoot the gun in the basement.
John admitted that he never went into Sean's
room to see where the gun was actually kept.
He was unaware that Sean placed the gun on
the floor at night or that he stored the gun
in a loaded condition. John claimed that he
had not "seen the gun in months" and had
forgotten that Sean had it until the shooting
occurred. However, John did buy a package of
cartridges for Sean after Sean had exhausted
his initial supply.
As a result of the incident, plaintiff
suffered a pellet wound to his left eye.
(Footnote omitted.)See footnote 1
There is no need to detail the facts concerning plaintiff's
surgery and loss of his eye or concerning his economic and non-economic damages. The Supreme Court remand does not suggest that
any issue we decided should be reconsidered, and the parties have
not asked us to do so.
The present issue is quite simple. It flows from the fact Sean and John were covered under a single homeowner's policy with $100,000 liability limits while Ford has primary coverage of $300,000 and excess liability for an additional $2,000,000. The question is whether Ford would be liable for the entire judgment (or anything above the McDonough's $100,000 policy limits) as Pennsylvania law would require, or only the 10" responsibility found by the jury, as New Jersey law requires.
Plaintiffs argue that the law of Pennsylvania governing recovery of damages applies to this case because application of the governmental-interest analysis requires such a result. Since New Jersey is the forum, New Jersey's choice-of-law principles determine which law applies. Gantes v. Kason Corp., 145 N.J. 478, 484 (1996); Boyson, Inc. v. Archer & Greiner, 308 N.J. Super. 287, 295 (App. Div. 1998); Black v. Walker, 295 N.J. Super. 244, 253 (App. Div. 1996). In tort cases, New Jersey has rejected the traditional rule - lex loci delicti - in which the choice of applicable law was based on the place where the wrong occurred. Veazey, supra, 103 N.J. at 247. Instead, we now follow the more flexible "governmental-interest analysis" in choice of law questions. Id.; Boyson, supra, 308 N.J. Super. at 295; Butkera v. Hudson River Sloop "Clearwater", Inc., 300 N.J. Super. 550, 553 (App. Div. 1997). "Under that analysis, the law applied will be that of the state with the greatest interest in governing the particular matter in issue." Gantes, supra, 145 N.J. at 484; Veazey, supra, 103 N.J. at 248; Boyson, supra, 308 N.J. Super. at 296. The analysis must be performed separately with respect to each issue in dispute because "the law of one jurisdiction may apply to one issue in a matter and the law of a second jurisdiction to another." Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 51 (App. Div. 1994); see also Johnson Matthey Inc. v. Pennsylvania Mfrs.' Ass'n Ins. Co., 250 N.J. Super. 51, 65 (App. Div. 1991).
The first step in the governmental-interest analysis is to determine if there is "an actual" conflict between the law of the interested states. Gantes, supra, 145 N.J. at 484; Veazey, supra, 103 N.J. at 248. That is to be determined on an "issue-by-issue basis." Gantes, supra, 145 N.J. at 484; see also Mueller v. Parke Davis, 252 N.J. Super. 347, 351 (App. Div. 1991).
The comparative negligence statutes of both New Jersey and Pennsylvania preclude recovery by an injured plaintiff only where his or her negligence exceeds the combined negligence of all defendants. N.J.S.A. 2A:15-5.1; 42 Pa. Cons. Stat. Ann. § 7102(a) (1998); Elder v. Orluck, 515 A.2d 517, 525 (Pa. 1986). Thus, there is no conflict between this aspect of the comparative negligence law of New Jersey and Pennsylvania.
However, there is a "conflict" between the comparative negligence statutes pertaining to the recovery of damages. 42 Pa. Cons. Stat. Ann. § 7102(b)(1998) provides:
Recovery against joint defendant; contribution.--Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
In comparison, at the time plaintiff's accident occurred and his
complaint was filed, N.J.S.A. 2A:15-5.3 provided in pertinent
part:
Except as provided in subsection d. of
this section, the party so recovering may
recover as follows:
a. The full amount of the damages from
any party determined by the trier of fact to
be 60" or more responsible for the total
damages.
b. The full amount of economic damages
plus the percentage of noneconomic damages
directly attributable to that party's
negligence from any party determined by the
trier of fact to be more than 20" but less
than 60" responsible for the total damages.
c. Only that percentage of the damages
directly attributable to that party's
negligence from any party determined by the
trier of fact to be 20" or less responsible
for the total damages.
d. With regard to environmental tort
actions, the party so recovering may recover
the full amount of the damage award from any
party determined to be liable.
e. Any party who is compelled to pay
more than his percentage share may seek
contribution from the other joint
tortfeasors.
[L. 1987, c. 325, § 2, eff. Dec. 18,
1987).]See footnote 2
Thus, in Pennsylvania, in a suit where multiple tortfeasors are
found liable, any defendant against whom recovery is allowed can
be required to pay 100" of the judgment, while under the New
Jersey statute in effect at the time the accident occurred and
the complaint was filed, a defendant could be required to pay
100" of the judgment only when he or she was 60" or more
responsible for the total damages. There is thus a real conflict
between the law of the two states on this subject.
When an actual conflict exists, the second step in the
governmental-interest analysis is to determine the interest that
each state has with respect to the specific issue in dispute.
Gantes, supra, 145 N.J. at 485. That analysis requires an
identification of the governmental policies underlying the law of
each state and how those policies are affected by each state's
contacts with the litigation and the parties. Id.; Veazey,
supra, 103 N.J. at 248. If a state's contacts are not related to
the policies underlying its law, that state does not have an
interest in having its law apply. Veazey, supra, 103 N.J. at
248. Moreover, it is the qualitative and not the quantitative
nature of a state's contact which is decisive in determining
whether a state's law should apply. Id.
There are two primary governmental policies and interests
recognized in choice-of-law determinations involving torts. They
are a state's interests in assuring full and fair compensation
for its injured domiciliaries and the deterrence of tortious
misconduct on the part of its domiciliaries. Dent v. Cunningham,
786 F.2d 173, 176 (3d Cir. 1986); Mueller, supra, 252 N.J. Super.
at 354-55; Pine v. Eli Lilly & Co.,
201 N.J. Super. 186, 192
(App. Div. 1985). See also O'Connor v. Busch Gardens,
255 N.J.
Super. 545, 547-51 (App. Div. 1992). Where both states have an
interest in promoting deterrence, the interests of the state with
an interest in "both a compensation and a deterrence interest
outweigh[s] the interest of the state having only a deterrence
objective." Gantes, supra, 145 N.J. at 496-97. See also Rose v.
Port of N.Y. Auth.,
61 N.J. 129, 140 (1972).
In Elder v. Orluck,
483 A.2d 474, 488-89 (Pa. Super. Ct.
1984), aff'd,
515 A.2d 517 (Pa. 1986), the Pennsylvania
intermediate appellate court recognized that situations can arise
under its Comparative Negligence Act in which a minimally
negligent defendant is required to pay the entire award and is
unable to secure total contribution because the other tortfeasors
are insolvent or have minimal insurance coverage. However, the
court observed that either the plaintiff or the "solvent
defendant must suffer" when one or more tortfeasors are
insolvent, and "the loss has traditionally fallen on the
wrongdoer." Id. at 488.
Although Pennsylvania has a strong interest in the
compensation of its own domiciliaries, it has no interest in
compensating non-domiciliaries, such as the plaintiffs, who
reside in New Jersey. Schum v. Bailey,
578 F.2d 493, 496-97 (3d
Cir. 1978); Henry v. Richardson-Merrell, Inc.,
508 F.2d 28, 33
(3d Cir. 1975); Deemer v. Silk City Textile Mach. Co.,
193 N.J.
Super. 643, 649 (App. Div. 1984). Thus, the fact that
Pennsylvania law might afford plaintiffs a greater recovery than
the law of New Jersey is "irrelevant" in resolving the choice of
law issue before us. Fu v. Fu,
309 N.J. Super. 435, 441 (App.
Div.), appeal granted,
155 N.J. 585 (1998); Haggerty v. Cedeno,
279 N.J. Super. 607, 612 (App. Div.), certif. denied,
141 N.J. 98
(1995). "It would indeed be anomalous to apply foreign law
solely to gain access to a deep pocket when local law denies that
access." Haggerty, supra, 279 N.J. Super. at 612. Pennsylvania
simply does not have an interest in making its resident, Ford,
who was found only 10" responsible, liable for the entire award
for the accident which occurred in New Jersey, thereby injuring a
resident of this state.
Accordingly, we hold that New Jersey has a greater interest
in guarding against injury here and in protecting its innocent
victims. We further hold that the New Jersey law of damages,
even though it gives less protection to its resident in these
circumstances, is to be applied.
Plaintiff argues, however:
important in the determination of which
recovery of damages law applies is to
consider what substantive law the court
applied in determining choice-of-law as to
liability. Busik v. Levine,
63 N.J. 351
(1973). In the present matter, both the
trial judge and the appellate division
concluded that Pennsylvania substantive law
applied as to all issues of liability. In
short, during the trial phase, the sale of
the gun to a minor constituted negligence per
se (
18 Pa.C.S. 6304) rather than just
evidence of negligence (New Jersey law). The
Third Circuit Court of Appeals has recognized
that "New Jersey [courts] would apply the
damages law of the state whose substantive
law is applied." Draper v. Airco, Inc.,
580 F.2d 91, 98 (3rd Cir. 1978) (emphasis added).
With Pennsylvania's substantive law applying,
it follows that it should be Pennsylvania's
damages law which should also be applied.
We disagree.
In Draper, the Third Circuit recognized that in Busik v.
Levine:
the Supreme Court of New Jersey determined
that, by the majority view, damages generally
and prejudgment interest specifically are a
matter of substance insofar as conflict of
laws principles are concerned. The court
gave no indication that New Jersey's law was
otherwise and, indeed, implied that New
Jersey would follow this rule. We have found
no subsequent cases that indicate a change of
view.
Since ... Busik is a relatively clear
indication of New Jersey law directly from
the New Jersey Supreme Court, we believe that
New Jersey would apply the damages law of the
state whose substantive law is applied.
[Draper v. Airco, Inc.,
580 F.2d 91, 98 (3d
Cir. 1978) (footnote omitted.)]
See Busik v. Levine,
63 N.J. 351, 368-70 (Weintraub, C.J., joined
by Jacobs and Proctor, JJ.), appeal dismissed,
414 U.S. 1106,
94 S. Ct. 831,
38 L. Ed.2d 733 (1973). See also W.A. Wright, Inc.
v. KDI Sylvan Pools, Inc.,
569 F. Supp. 589, 593-94 (D.N.J. 1983)
(awarding prejudgment interest), modified on other grounds,
746 F.2d 215 (3d Cir. 1984); A-S Development, Inc. v. W.R. Grace Land
Corp.,
537 F. Supp. 549, 556 n.6 (D.N.J. 1982), aff'd,
707 F.2d 1388 (3d Cir. 1983), and
707 F.2d 1398 (3d Cir. 1983). But see
Pollock v. Barrickman,
610 F. Supp. 878, 879-81 (D.N.J. 1985)
(applying New Jersey law of negligence and Pennsylvania law of
damages in diversity action employing New Jersey choice of law
principles).
The Busik plurality written by Chief Justice Weintraub
follows the majority rule that "in the context of conflict of
laws, ... `damages' go to the substance," Busik, supra, 63 N.J.
at 368, and thus the State whose substantive law controls also
governs the question of damages. See also Restatement (Second)
Conflict of Laws §§ 145, 164, 171. We, therefore, hold that New
Jersey law controls the issue of contribution. This flows from
our holding on the original appeal that the New Jersey law of
comparative negligence governs this matter and that the
"governmental interest" test points to New Jersey substantive law
except with respect to the instructions regarding K-Mart's
liability for its sale of the pellet gun to Ford and his
subsequent transfer of the weapon to Sean in Pennsylvania.
Accordingly, plaintiffs cannot collect the entire judgment
(whatever it turns out to be after the retrial on damages) from
Ford who was found to be only 10" responsible. Under New Jersey
law plaintiffs may recover only 10" of the award from Ford. We
find no basis for applying the law of contribution of different
states to different defendants, and the parties do not suggest
otherwise in contending that either Pennsylvania or New Jersey
law controls. Thus, we cannot conclude that Ford can be jointly
and severally liable because he is a Pennsylvania resident whose
conduct occurred in Pennsylvania, while the McDonoughs are
responsible only for their own percentage of responsibility
because they live here and the accident occurred in this state.
Rather, comparative negligence having been determined under New
Jersey law, N.J.S.A. 2A:15-5.3 shall control the recovery of
damages to be awarded at the retrial.
We adhere to our original opinion as supplemented herein, and remand for further proceedings consistent with this opinion.
Footnote: 1We also noted that
Sean testified during his deposition that Ford was eighteen at the time of the purchase. The judge instructed the jury that this deposition testimony could be used against Sean, but not K-Mart or Ford. Ford testified during his initial deposition that he was "probably 16 or 17" at the time of the purchase. However, in a later deposition, Ford stated: "I think I was 17 or 18. I'm not sure how old I was." The judge instructed the jury that the first deposition could be used against Ford, but not K-Mart. Footnote: 2N.J.S.A. 2A:15-5.3 was amended by L. 1995, c. 140, § 2. The amendment deleted subsection b and changed the wording in subsection c which now states: "Only that percentage of the damages directly attributable to that party's negligence or fault from any party determined by the trier of fact to be less than 60" responsible for the total damages." The amendment also altered the language of subsection d concerning environmental tort actions. The amendment applies to causes of action filed on or after June 29, 1995. See L. 1995, c. 140, § 3. Where there are multiple causes of injury, New Jersey generally permits apportionment "[w]here a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm of which that defendant's conduct has been a cause in fact ...." "Where no such basis can be found, the courts generally hold the defendant for the entire loss, notwithstanding the fact that other causes have contributed to it." Dafler v. Raymark Industries Co., 259 N.J. Super. 17, 28 (App. Div. 1992), aff'd o.b., 132 N.J. 96 (1993) (quoting Prosser and Keeton, Law of Torts, § 52, at 345 (5th ed. 1984)). The burden of showing an ability to apportion the damages is on the party seeking it. Id. at 33.