Apportion damages between public and private defendants

How to Apportion Damages Between Public and Private Tortfeasors

You can’t tell your parties without a scorecard

Anna Bolz was a passenger in an automobile operated by her husband, Joseph; which was involved in an accident with a tractor-trailer owned by the City of Engelwood, and operated by a City employee, Favian Herrera.  Bolz stopped his auto and waited while Herrera backed up. Unfortunately, the tractor-trailor stuck the automobile causing injury to Anna Bolz.

Plaintiff, Anna Bolz sued Herrera and the City. Herrera and the City filed a third party complaint against Joseph. Anna Bolz amended her complaint to asset a direct claim against third party defendant, Joseph Bolz.

At trial, Bolz objected to the order of the questions on the proposed jury verdict sheet, which was overruled.

During jury deliberations, the jury asked a question about why the standard for Herrera was substantial permanent injury while the standard for Joseph Bolz was permanent injury. The judge explained the reason for different standards is that a plaintiff must meet different standards of proof against a private defendant; as opposed to a public entity.

The jury found both Herrera and Bolz were negligent; but found plaintiff suffered a permanent injury and not a substantial permanent injury. Because of this finding, the jury skipped the comparative negligence question, and set damages at $75,000.  The judge molded the verdict against Bolz only in the amount of $75,000.

On appeal, Bolz contended that the jury verdict sheet “improperly limited proximate cause to injury.”

The Appellate Division decision

Reversed and remanded on the issue of liability. The damage award was affirmed.  Here is some important information to keep in mind:

  • Both drivers are deemed “tortfeasors” pursuant to the Joint Tortfeasors Contribution Law and the Comparative Negligence Act, if;
  • They are found to be negligent and their negligence was a proximate cause of the accident
  • Allocation or apportionment of each driver’s negligence or fault must be assessed;
  • Even if there is a possibility that the public entity may not be liable for damage
  • When a plaintiff sues both private and public entity defendants, the jury should answer two specific interrogatories as to each defendant:
    • Was this defendant negligent?
    • If so, did that negligence proximately cause plaintiff’s damages?
  • If more than one defendant was negligent and their negligence proximately caused plaintiff’s injuries;
  • The jury must find what percentage of negligence of the total negligence or fault is attributable to each defendant
  • The next step is for the jury to determine whether the plaintiff suffered a substantial permanent injury proximately caused by the negligence of the public entity
  • Then the jury should fix the amount of damages
  • Specific interrogatories regarding categories of damages, i.e., pain and suffering,  property damage, economic damages, etc., would allow the trial judge to fashion an award consistent with the TCA, JTCL and the CNA


What a well reasoned, thoughtful decision in confusing areas of law. Judge Rodrigues, P.J.A.D. writing on behalf of the Panel, delivered helpful, practical advice on how to formulate a jury sheet when there are private and public defendant joint tortfeasors in a negligence case.

This case is a good example of the benefits in allowing a jury to ask questions.


About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community in NYC

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