Draney v. Bachman

• Decision Date: 13 January 1976
• Parties: Mary Roseanne DRANEY, Plaintiff, v. William BACHMAN, Defendant.
• Court: New Jersey Superior Court

Page 503

138 N.J.Super. 503

351 A.2d 409

Mary Roseanne DRANEY, Plaintiff, v. William BACHMAN, Defendant.

Superior Court of New Jersey,

Law Division.

Jan. 13, 1976.

Edwin J. McCreedy, Elizabeth, for plaintiff (Conant & McCreedy, Elizabeth, attorneys).

James D. Bride, Cranford, for defendant (Robert J. Casulli, Cranford, attorney).

DREIER, J.D.C., Temporarily Assigned.

Plaintiff in this auto negligence case has moved simultaneously (1) to amend her complaint to allege 'gross negligence or wanton and willful conduct on the part of the defendant,' and (2) for an order 'granting partial summary judgment declaring that the defendant is guilty of (such) gross negligence and/or wanton conduct as a matter of law and further striking the defense of contributory negligence.' Since this suit arose out of an automobile accident which occurred on October 5, 1974, it is governed by the comparative negligence statute, N.J.S.A. 2A:15--5.1 Et seq., and is the first case discovered by this court to examine the continued viability of the concepts of gross negligence and willful and wanton conduct since the adoption of comparative negligence in New Jersey. ¹

The facts are not in dispute. On October 4, 1974 plaintiff was a passenger in an automobile owned and operated by defendant. Prior to the accident plaintiff had been on a social date with defendant, and while at plaintiff's home defendant consumed all but a small part of a pint bottle of gin over a three-hour period. Thereafter, at about 11:30 p.m., plaintiff and defendant proceeded to a bar where they remained for about three hours, during which defendant consumed an additional three drinks and was noticeably belligerant toward another person. The parties left the bar at about 3 a.m. Another acquaintance solicited a ride from defendant, but while giving travel directions led him on a 'wild goose chase,' further aggravating defendant. He admittedly commenced driving at excessive speeds (in excess of 55 miles an hour in a 35 mile an hour zone), and then lost control of his vehicle while crossing railroad tracks around a curve. Plaintiff was injured when defendant hit a utility pole on the opposite side of the road. Defendant admitted being aware of his intoxication at the time of the mishap, prompting his guilty plea to operating a motor vehicle while impaired, in contravention of N.J.S.A. 39:4--50.1. A blood sample administered at the hospital revealed a blood alcohol content of .28. Defendant concluded his deposition stating that the accident happened 'cause I was angry about a few different things that took place that night and because I was driving at an excessive rate of speed and also because I was drinking. For those three reasons.'

There is no question but that an order amending the pleadings should be granted under circumstances where the new material could reasonably be the basis of a cause of action. Defendant waives his procedural objections to the timing of the accompanying summary judgment motion and agrees that this court should consider the amendment and summary judgment motions on their substantive merits.

The facts of this case are similar to those in Tabor v. O'Grady, 59 N.J.Super. 330, 157 A.2d 701 (App.Div.1960), reh. 61 N.J.Super. 446, 161 A.2d 267 (App.Div.1960). The rule established by Tabor is that a plaintiff who proves defendant's wanton and willful misconduct will not be barred by simple contributory negligence. The defendant must prove plaintiff's own wanton and willful misconduct in order to defeat such a claim.

Considering the nature of defendant's conduct in such a 'wanton and willful' case, the increased burden upon defendant was recognized as equitable in view of the then existing contributory negligence rule. That rule precluded recovery notwithstanding the fact that plaintiff's negligence was substantially less in degree than defendant's negligence, if both proximately contributed to the happening of the accident. Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (App.Div.1956). Although the Supreme Court later, in O'Brien v. Bethlehem Steel Corp., 59 N.J. 114, 279 A.2d 827 (1971), reinterpreted and ameliorated the harshness of this rule by requiring that a plaintiff's negligence must be shown to have been a substantial factor in bringing about the harm complained of, the contributory negligence rule remained in force until the enactment of N.J.S.A. 2A:15--5.1 Et seq. When the Tabor court considered this matter in 1960 it stated specifically that it was not applying rules of comparative negligence. 61 N.J.Super. at 452, 161 A.2d 267. It thus could not then have envisioned the application of its doctrine to our comparative negligence statute. Commentators, however, have viewed cases such as Tabor as a first step towards a crude comparative negligence system. Schwartz, Comparative Negligence, § 5.1 at 100 (1974); Harper & James, The Law of Torts, § 22.6 at 1215 (1956).

But this softening of the contributory negligence rule is one of two basic reasons for the harsher consequences of the 'willful and wanton' negligence rules. The other, as noted by Professor Schwartz, is:

(D)efendant's negligence, gauged in terms of culpability, is so close to intentional wrong-doing that he should not have the benefit of contributory negligence. * * * Once a state has adopted comparative negligence (the amelioration) reason for the rule is removed, but the (culpability reason) remains. Thus the courts are presented with a very difficult issue if the legislature has given no guidance. (Schwartz, Comparative Negligence, § 5.3 at 105 (1974).)

There are three possible directions this court can take in applying the comparative negligence statute to this case assuming that defendant's conduct should be characterized as either 'gross negligence' or 'wanton and willful.' First, this court could preserve the doctrine in Tabor, but impose upon it the comparative negligence rules, I.e., once willful and wanton conduct is shown by plaintiff, defendant must demonstrate plaintiff's willful and wanton conduct (as opposed to mere gross negligence) before the jury would be requested to apportion relative blame. If, however, the jury were to find that plaintiff's conduct did not rise to the level of 'willful or wanton,' it would be told to disregard plaintiff's conduct entirely, and find defendant 100% Liable.

The second method would be to disregard the comparative negligence statute when dealing with willful and wanton conduct, but to apply it to all 'degrees' of negligence, dropping any distinction between 'gross' and other negligence--a modified Wisconsion rule.

The third method (as adopted in Wisconsin and other states, as will be discussed hereafter) is to discard the concepts of both gross negligence and wanton and willful conduct entirely for the purpose of comparative negligence evaluation, and permit the jury to assess blame by the percentages ascribed to the conduct of each party.

This court chooses to follow the second course of action. ²

The Wisconsin case, Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (Sup.Ct.1962), considers the issue with all of its ramifications. The Wisconsin court determined that gross negligence and willful and wanton actions differed in degree rather than kind from ordinary negligence, and determined that the Wisconsin comparative negligence statute (after which our own was patterned) took into account the more culpable type of conduct when comparing it with ordinary negligence. ³ Much as the court in Bielski, however, this court is concerned with the reasons why the various negligence rules have been established over the years, and why our Legislature instituted the doctrine of comparative negligence.

The aim of all litigation in the negligence field is to apportion the damages flowing from the accident in question in proportion to the fault of the respective parties. Where there is to be a departure from this goal (such as in the workmen's compensation field or compulsory 'nofault' auto insurance), the Legislature has so spoken. There is also a departure in the field of intentional torts so that punitive damages may be rendered against the tortfeasor. But within the area of unintentional torts, where the Legislature has not decreed a separate standard, apportionment based upon the respective fault of the parties is the rule, and this is the background against which the standards of N.J.S.A. 2A:15--5.1 Et seq. should be examined.

Unlike other states adopting comparative negligence rules, New Jersey had already undergone a redefinition of terms. In this State the term 'gross negligence' has often been confused with, yet at other times differentiated from, 'willful, wanton or reckless' conduct. In the first Tabor opinion the defendant was found to be grossly negligent, but upon reconsideration, the court determined specifically that the conduct 'passed entirely beyond mere negligence (of any degree) and that he was guilty of willful and wanton misconduct as a matter of law. * * *' 61 N.J.Super. at 452--453, 161 A.2d at 270. It was only such willful and wanton conduct that is not subject to the defense of contributory negligence. The words 'reckless' and 'willful and wanton' were specifically distinguished from the 'grossly negligent' standard in the earlier opinion, and it is this 'wantonness' that is distinguished from 'negligence in any degree' as being different in Kind. 61 N.J.Super. at 454, 161 A.2d 267. New Jersey has in the past recognized the term 'gross negligence.' See Harber v. Graham, 105 N.J.L. 213, 215, 143 A. 340 (E. & A.1928); Oliver v. Kantor, 122 N.J.L. 528, 532, 6 A.2d 205 (Sup.Ct.1939), aff'd 124 N.J.L. 131, 10 A.2d 732 (E. & A.1940); Crothers v. Caroselli, 125 N.J.L. 403, 406, 16 A.2d 341 (Sup.Ct.1940), aff'd 126 N.J.L. 590, 20 A.2d 77 (E. & A.1941); Cohen v. Press, 31 N.J.Super. 45, 105 A.2d 905 (App.Div.1954), certif. den. 16 N.J. 197, 108 A.2d 36 (1954). A simple definition, set forth in...