Alan B. Handler

“ However, if it seems unfair to allow a plaintiff to recover from a less faulty defendant, which is permitted under the aggregate approach, the Joint Tortfeasors Contribution Act would operate to mitigate this apparent wrong. If all defendants are responsible for a plaintiff's recovery, at least all will share the burden among themselves in proportion to their individual fault. ”

“ We observe that the basic purpose of [the comparative negligence statute] is to distribute the total damages among those who cause them. Furthermore, the legislature did not mean to go any further than to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injury or danger. In other words, if the plaintiff's negligence [A560] is less than 50% of all the co-defendants, he is entitled to recover from each or all of them as joint tortfeasors even though the plaintiff's negligence equals or exceeds that of a particular co-defendant. ”

“ The majority of the court has become convinced that comparing the negligence of the individual plaintiff to that of each individual tortfeasor -- rather than comparing the negligence of the individual plaintiff to that of the combined negligence of the several tortfeasors who have collectively contributed to plaintiff's injuries -- leads to harsh and unfair results . ”

“ The class of persons potentially excluded from liability is sufficiently large that we need not resort to "less negligent" defendants to swell its numbers. [1]
In sum, the aggregate approach does not empty the legislation of reasonable meaning. The majority has, I submit, failed in its [NJ103] attempt to rely upon the plain language rule as demonstrating the clear meaning and basic intent of the Comparative Negligence Act. The Court cannot, therefore, avoid a deeper probe for the underlying legislative intent. ”

“ The salutary policy of allocating responsibility among all negligent parties in proportion to their relative fault is more fully achieved as to both plaintiffs and defendants under the aggregate approach. In a sense, the damages award to an injured plaintiff and the contribution award to a joint tortfeasor share a common strain. ”

“ If there is some doubt that the adopting legislature fully intended to embrace the particular interpretations or applications by the courts of the source state, the courts of the adopting jurisdiction do not have to give greater weight to the originating state's judicial decisions than their intrinsic persuasiveness demands ”

“ Since the Legislature necessarily intended the recovery allocation provisions of N.J.S.A. 2A:15-5.3 to apply to a much larger class than tort-immune defendants, this larger class, the majority contends, must include negligent but "less faulty" defendants.
It is difficult to follow this forensic flight. Wherever else it leads, it clearly demonstrates that the legislative intent to use the individual or the aggregate approach cannot be fairly resolved solely from the language of the enactment. ”

“ Moreover, there is not the slightest suggestion that construing the term "person," as it appears in N.J.S.A. 2A:15-5.1, to include the plural meaning is "repugnant to the subject of the enactment." N.J.S.A. 1:1-2. ”