|Volume 76||Number 1||Spring 1998|
Cite as 76 Wash. U. L.Q. 407
party [pär' té] n. 1: a person or group taking one side of a question; 2: a person or group concerned in an action or affair: participant; 3: a group of persons detailed for a common task.
The adoption of comparative negligence statutes in a majority of jurisdictions has prompted the legal definition of the word "party" to grow in importance. This definition of "party" determines the parties to whom a jury may allocate fault.
State negligence statutes define party in three different ways:
1. all litigants in the lawsuit; or
2. persons involved in the tort; or
3. defendants involved in the lawsuit.
When a narrow definition of party is used, the jury is limited in determining who should share the blame for the tort, with defendants possibly shouldering the blame for non-party tortfeasors. On the other hand, a broad definition allows the jury to consider more parties, but may limit the plaintiff's recovery. Because of the inequities to the defendant that come from a narrow definition of "party", this Note proposes that states adopt a new comparative negligence statute that allows the jury to consider the fault of everyone who may have contributed to the plaintiff's injury.
This Note focuses on the definition of "party" and analyzes the merits of definitions one and two. This Note will not examine definition three because it refers back to contributory negligence, where any fault of the plaintiff bars recovery, and is used only by a few states. Part II of this Note will briefly examine the history of comparative and contributory negligence. Part III will examine how different states have defined "party" and the results that these various definitions have achieved. Finally, Part IV proposes that a new statute, which comports with traditional principles of efficiency and fairness, should be adopted in lieu of the current state comparative negligence statutes.
In common law tort cases, any fault by the plaintiff served as a complete bar to recovery. In 1809, this rule was established in England in Butterfield v. Forrester, and recognized in the United States in 1824, in Smith v. Smith. For a plaintiff to lose a suit in a contributory negligence jurisdiction, his or her conduct must fall below the standard of reasonable care and must contribute as a legal cause to the harm that the plaintiff suffered. Under this rule, a plaintiff who was responsible for any negligence whatsoever would not recover any damages, while a fault-free plaintiff could recover all of his damages. Hence, this rule was known as the "all or nothing rule." Professors Prosser and Keeton advance three possible explanations for the harshness of this rule. First, the contributory negligence doctrine had a penalty element, so that a negligent plaintiff was denied recovery as punishment for his wrongful conduct. Second, the "clean hands" doctrine justified the denial of recovery to a negligent plaintiff. Third, contributory negligence was based on the belief that courts could not properly apportion fault between two parties for a single injury.
The contributory negligence doctrine began to dissipate as state legislatures and courts realized that it was unreasonable to place the entire risk of loss on the plaintiff's shoulders. The courts recognized that the defendant was in a better position than the plaintiff to bear the financial burden of the loss.
The doctrine of comparative negligence developed from this rationale. The basis for this doctrine is that courts should apportion fault among the plaintiffs and the defendants. In addition to the policy of allocating losses among negligent parties, several courts also reasoned that because there was no longer a need to protect industry from "legal fetters," the rule of contributory negligence had no justification. Other courts noted that the contributory negligence bar did not deter defendants, however, comparative negligence would increase deterrence.
States have arrived at different conclusions on how to treat this doctrine. Some states only allow courts to apportion certain damages (i.e., only non-economic damages) to non-party tort-feasors. Other states have a percentage of fault ceiling for plaintiff recovery whereby he will not recover if the jury finds that his contribution was more than a legislatively determined percentage of fault. Finally, some states also have different types of contribution laws, where a plaintiff can recover from one defendant who can then obtain contribution from other defendants. Furthermore, there are different variations of comparative fault doctrines, including both pure and modified comparative fault.
Regardless of these permutations and combinations of comparative negligence law, the problem that this Note addresses remains constant: to whom does the jury apportion negligence? It is this determination that is affected by the state legislature's definition and the court's interpretation of the word "party" in the language of the comparative negligence statute.
Resolution of this question is important for both plaintiffs and defendants. A plaintiff can only recover if the party in the suit is found liable. A narrow reading of "party" means that the jury will only consider parties to the suit. This means that a plaintiff will recover all damages from those parties, and the court will apportion fault only to the plaintiff and to those parties. Therefore, the jury will not consider parties who contributed to the accident, but are not defendants, and the present parties will assume the non-parties' share of fault. If "party" is interpreted broadly, then parties not involved in the suit but involved in the accident will also be apportioned fault. In this scenario, a plaintiff may not recover all of the damages awarded, if the jury places some fault on an immune party or a party who the plaintiff has otherwise chosen not to sue. The defendants, however, will pay damages only in proportion to their percentage of fault.
When a jury considers only the litigants in the lawsuit, parties who contributed to the accident but are immune from liability will not be considered. Because a jury's total fault allocation must equal 100%, the parties to the suit are assigned a percentage of fault that may be higher than it would have been if all the responsible parties were present in the courtroom. This frees the plaintiff from worrying about damages being allocated to a party from whom he or she cannot recover. New Jersey and Pennsylvania are two of the states whose legislatures have promulgated this result.
The trier of fact shall make the following findings of fact . . . (2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to the suit shall be 100%.
The New Jersey legislature defines "party" to include only the named entities to the suit. The results of this can be seen in the treatment of non-parties, who are not allocated fault by the jury. However, settling co-defendants, although they are no longer parties to the suit, are still allocated a percentage of fault.
In Straley v. United States, the United States District Court for the District of New Jersey, interpreting New Jersey law, denied the defendant's motion to consider the fault of the plaintiff's non-party co-employee when apportioning the liability among the parties. The co-worker was driving the vehicle on which the plaintiff was riding when he was injured. The court, holding that the jury may not consider the non-party's negligence when apportioning fault, was constrained by the holding in Ramos v. Browning Ferris Industries. Because neither the co-worker nor his employer were parties to the suit, they could not be considered joint tort-feasors, and therefore could not be considered by the jury on the issue of comparative negligence.
The seminal New Jersey case that affirmed this point of law is Jarrett v. Duncan Thecker Associates. The plaintiff was injured while on the job, and the defendant asked to have the non-party employer's negligence allocated by the jury. The court found that New Jersey's comparative negligence statute clearly limited the jury's deliberations to parties to the suit, rather than parties to the transaction, and thus did not allow the jury to consider the employer's fault.
The New Jersey courts are less strict in their interpretation of "party" when the situation involves a settling co-defendant. In Young v. Latta, the court held that a non-settling defendant is entitled to have the settling defendant's negligence apportioned by the jury. Then, regardless of the actual settlement, the non-settling defendant is entitled to a credit reflecting the settler's fair share of the verdict amount. Thus, a plaintiff may recover more or less than the jury's award of damages, depending on how good or bad the settlement is in comparison to the settling defendant's percentage of fault. Furthermore, the settling defendant shall have no additional liability to any party beyond that provided for in the settlement terms. The court's rationale indicated that the purpose of the comparative negligence statute is to limit a defendant's liability to the percentage of negligence found against him. However, this reasoning seems inconsistent with the above discussion, whereby the jury allocates fault only to parties in the suit. These inconsistencies demonstrate the flaws in the New Jersey comparative negligence statute and show why New Jersey should adopt the statute proposed in Part IV.
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 Pennsylvania legislature has provided for apportionment of liability only among those defendants against whom recovery is allowed, not among all persons responsible for a tortious injury.
The leading Pennsylvania case in this area is Ryden v. Johns-Manville Products. In Ryden, the court held that an employer who was immune from liability because of the workers' compensation bar could not be joined in a negligence action. The court further ruled that the focus of this inquiry should not be on the inequities that may result from the exclusion of immune parties from the jury. The court cited the clear language of the Pennsylvania statute in holding that only defendants who may be found liable can have negligence apportioned by the jury. Because the employers at issue were protected by the workers' compensation bar, they could not be found liable, and therefore could not be joined in the suit or assigned a percentage of fault by the jury.
Pennsylvania's treatment of settling co-defendants is similar to that of New Jersey. The leading case in this area is Thompson v. City of Philadelphia, in which the court held that the defendants' "settlements with plaintiff did not render the dispute as to the apportionment of liability moot, since the ultimate apportionment of liability . . . will govern the defendants' rights of contribution amongst each other in a pending contribution action." However, unlike New Jersey, Pennsylvania does not necessarily give the remaining defendants a credit equal to the settling defendants' pro rata share. Despite this distinction, the result for purposes of this Note is the same as in New Jersey; settling co-defendants still have their fault allocated by the jury in a negligence action. However, Pennsylvania's treatment of settling co-defendants is inconsistent with its treatment of immune parties. Therefore, Pennsylvania's legislature needs to consider amending the comparative negligence statute.
When the jury considers all of the entities that contributed to the tort, regardless of their presence in the suit, a defendant is assured to pay only a percentage of damages that is equal to their percentage of fault. This results in greater efficiency because the plaintiff is forced to join all the parties who may be liable. However, a plaintiff may not recover all damages if some fault is assigned to a party who cannot be liable to the plaintiff. Wisconsin, Minnesota, and Florida are examples of states that choose this method of fault allocation.
The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.
The Wisconsin legislature structured the comparative negligence statute to result in the allocation of fault among all the parties involved in the tortious activity. Recently, however, a lower court created an exception to this general rule.
The seminal case in Wisconsin and the leading case cited nationwide by courts on allocation of fault to non-parties is Connar v. West Shore Equipment of Milwaukee, Inc. In this case, the Supreme Court of Wisconsin held that when apportioning negligence the jury must be given the opportunity to consider the fault of all parties to the transaction, regardless of whether they are parties to the lawsuit, and regardless of whether they can be liable to the plaintiff or other tortfeasors, either by operation of law or because of a prior settlement agreement. There is only one prerequisite to sending the negligence of a non-party to the jury: the trial judge must determine as a matter of law that there is "evidence of conduct, which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about." Subsequently, the court held that whether the party or entity is not a party or is immune from further liability is immaterial.
Since this landmark decision, several lower courts have distinguished cases and held opposite to the Connar principle. In Hauboldt v. Union Carbide Corp., the court held that where a plaintiff is entirely fault-free, and a change in apportionment among the defendants would not affect his amount of recovery, the defendant is not entitled to present complete evidence of a partially immune co-defendant's negligence. The court stated that the sole reason the jury should be given an opportunity to "consider the negligence of all persons involved is that adding in the causal negligence of the omitted tort-feasor(s) may affect the amount of recovery by the injured party." In this case, where one defendant could not be liable to the plaintiff because of an immunity, and the other defendant was strictly liable, the liable defendant was not entitled to present evidence of the third party's negligence because that information was protected under the immunity.
Recently, however, the Connar decision has been reaffirmed. In Martz v. Trecker, the Wisconsin Court of Appeals held that in circumstances similar to Hauboldt, the lower court was correct to include in the jury instructions the negligence of a non-party tortfeasor, even though it had no bearing on the amount of the plaintiff's recovery. The inclusion of non-parties in jury deliberations was also affirmed in Zintek v. Perchik. The court restated that a jury must have the opportunity to consider anyone who may have contributed to the tortious act. However, under the facts of the case, the defendants failed to meet the threshold evidentiary standard of law because, according to the court, they did not produce sufficient evidence to warrant submission of the matter to the jury.
As noted above, Wisconsin also includes settling co-defendants in jury instructions when apportioning fault among several defendants. One type of settlement procedure is known as a "Pierringer release" and is used in several states other than Wisconsin. For example, Minnesota also uses this same system for the treatment of settling defendants. In the case of Rambaum v. Swisher, the Minnesota Supreme Court stated some of the characteristics of the Pierringer settlement. Generally, in this type of settlement, the tort-feasor settles for a specified percentage of the damage award as determined by the jury. So, in actuality, the settlement is for a fixed percentage of the jury's yet-to-be-determined damage award. The court held that when this settlement method is used, the amount of the settlement is not used to reduce the remaining defendants' liability pro tanto. According to the court, this would be contrary to the intentions of the settling parties, who had previously agreed to deduct from the verdict the portion of damages equal to the agreed upon percentage of the settling defendant's fault. The result of this type of settlement is similar to the result found in New Jersey when dealing with a settling co-defendant. Both the plaintiff and the settling co-defendant take the risk of a bad settlement, and of either paying too much or accepting too little for the release. However, in either case, the remaining non-settling defendants are liable for only their proportion of fault as allocated by the jury.
[T]he court shall enter judgment against each party liable on the basis of such party's percentage of fault. . . .
Florida's statutory language indicates that, similar to New Jersey and Pennsylvania, juries can only consider parties who may be liable. The recent case of Fabre v. Marin, however, has altered the comparative negligence landscape in Florida.
The Fabre decision resolved a conflict between two lower court decisions, Fabre v. Marin and Messmer v. Teacher's Insurance Co. In the Fabre case, the lower court held that in creating the comparative fault statute, the legislature did not intend to stop a fault-free plaintiff from recovering full damages; rather, it intended to apportion liability only among tort-feasors who were defendants in the lawsuit. In Messmer, the lower court reached the opposite conclusion on a similar set of facts. The court reasoned:
The use of the word "party" [in the statute] simply describes an entity against whom judgment is to be entered and is not intended as a word of limitation. Had the legislature intended the apportionment computation to be limited to the combined negligence of those who happened to be parties to the proceeding, it would have so stated. The plain meaning of the word percentage is a proportionate share of the whole, and this meaning should apply in the absence of any language altering or limiting the plain meaning.
In 1993, the Supreme Court of Florida resolved this conflict in Fabre v. Marin, by upholding the decision of the Messmer court. The court concluded that the comparative negligence statute was unambiguous, and that "judgment should be entered against each party liable on the basis of that party's percentage of fault." Furthermore, the court noted that the only way to determine a party's percentage of fault is to compare that party's actions to all of the other parties who contributed to the accident, regardless of whether they have been or could have been liable to the plaintiff and joined as defendants.
This point of law was confirmed in Allied-Signal, Inc. v. Fox, a case decided the same day as Fabre v. Marin that answered a certified question from the United States Court of Appeals for the Eleventh Circuit, concerning the interpretation of Florida's comparative negligence statute. On the strength of Fabre v. Marin, the Florida Supreme Court answered the United States Court of Appeals that an immune employer should have liability apportioned to it even though it can have no further liability to the plaintiff in order to properly determine the actual defendant's fault.
Florida's treatment of settling co-defendants is similar to that of New Jersey and consistent with their own treatment of non-parties. For example, in DeWitt Excavating, Inc. v. Walters, the court reiterated the doctrine established in Fabre v. Marin: a defendant is responsible for the portion of damages that is equivalent to the percentage of fault attributable to that defendant. However, unlike New Jersey, Wisconsin, and Minnesota, plaintiffs in Florida cannot recover more than the jury awarded damages.
Several other states also define "party" as all persons involved in the transaction. For example, interpreting the Kansas comparative negligence statute, the Kansas Supreme Court in Brown v. Keill, the Supreme Court of Kansas ruled that the purpose of the Kansas comparative negligence statute was to "equate recovery and duty to pay to degree of fault." The court went on to hold that the language in part (d) of the statute, which reads "all parties against whom such recovery is allowed," must be read to impose liability for damages based on the relative fault of all parties to the transaction or occurrence, even when one or more parties cannot be joined as a defendant or held liable to the plaintiff.
For other examples of states using this definition of "party", see California, New Mexico, and Oklahoma cases.
When states determine the best way to set up a system of fault comparison in a tort setting, there are many factors that need to be considered. These include efficiency of the court system, compensation of the plaintiff for their injuries, and proper allocation of the damages to the defendants who are involved in the litigation. The following proposed statute would help to accomplish these goals. This Note proposes that states, especially New Jersey, Pennsylvania, and Oregon, consider the merits of the statute and adopt similar legislation.
State X Comparative Negligence Statute
A) In all suits alleging negligence or wrongful death, the negligence of the plaintiff shall not serve as a bar to recovery. B) The jury or fact finder shall make the following findings of fact: 1) the percentage fault of the defendant(s) in the suit; 2) the percentage fault of the plaintiff(s) in the suit; and 3) the percentage fault of all parties not in the suit who have contributed to the accident or transaction at issue--this shall include the following categories of parties: settling co-defendants, immune parties (including spousal immunity, worker's compensation bar, etc.), parties who have signed a covenant not to sue, and any party involved in the transaction who the plaintiff has chosen not to sue. C) A fact finder shall not consider the fault of any party in Section (B)(3) who is: 1) not identifiable (i.e., a phantom tort-feasor); or 2) any party designated in (B)(3) unless, as a matter of law, there is evidence of conduct, which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about. D) Each party in (B)(1), (2), and (3) shall be assigned a percentage of fault so that the total of all fault assigned is 100%. The fact finder shall make a determination of the total damages awarded to the plaintiff, and each defendant shall be liable for the percentage of that damage award equal to that party's percentage of fault. Under no circumstances shall a party be liable for a dollar amount greater than that which their percentage of fault dictates. E) A jury shall not be made aware of the dollar amount of any previous settlement the plaintiff has made with a defendant(s). That party shall be still assigned a percentage of fault. There is no alteration to any liability of any defendant if the plaintiff receives more or less in the settlement than they would have received from that party had they not settled, based on that party's percentage of fault. This section shall be read to allow a plaintiff to recover more or less than the damages a jury awards based on whether they settled for more or less than a defendant's percentage of the damage award. If a plaintiff settles with a defendant who is later found to have 0% fault, the remaining defendants are not entitled to any reduction in damages.
This proposed statute has several features that help accomplish the above stated goals.
Section A makes clear that the statute eliminates all links to a system of contributory negligence. A plaintiff should not be denied all recovery simply because he has some fault in the transaction at issue.
Sections B(1) and B(2) simply state the obvious, that the plaintiff and defendant(s) are all to receive a percentage of fault from the jury. Subsection (3) mandates that all entities involved in the accident are allocated a percentage of fault, assuming they meet the two conditions of section C: (1) they are identifiable; and (2) they meet the required evidentiary standard.
If juries do not consider immune parties, then a defendant who is partially liable may end up paying more than his true share of fault. For example, consider a hypothetical involving an employer that is immune because of the workers' compensation bar. Plaintiff is employed by ABC Company, which has a solid waste container behind its facilities. The defendant is a solid waste hauler that leased the container to ABC Co., who is immune from liability because of the state's workers' compensation statute. In its operations, the defendant, creates a rut in the ground while hauling the container, and the plaintiff, while rolling a large drum of solid waste, trips on the rut, which was recently covered with snow. Assuming 25% negligence to the plaintiff (as the jury found in the Ramos case), there is no reason why the defendant, the solid waste hauler, should be responsible for 75% of the damages, without a jury contemplating that the employer, ABC Co., may have some fault for failing to clear the lot where the plaintiff was injured. A defendant should not be responsible for damages greater than its fault merely because it has found itself in the unfortunate circumstance of being a joint tort-feasor with an immune party.
A named defendant should not be forced to bear some percentage of negligence or fault that rightfully belongs to someone else, even if that other party is immune [or] nonliable. In some situations, this may mean that the plaintiff cannot obtain satisfaction of a judgment for all of the negligence or fault the jury attributes to the nonparty. However, at least the named defendant is not forced to shoulder blame that belongs elsewhere.
Parties that a plaintiff has simply chosen not to sue, possibly for personal reasons, also should be included in the jury deliberations on the allocation of fault. Plaintiffs control the litigation by deciding the jurisdiction and the venue, as well as deciding when to commence the suit. Plaintiffs should not be able to force a "deep pocket" defendant to pay more than their proportionate share of damages by choosing not to sue a party, possibly because the party is insolvent. Plaintiffs must take defendants as they find them.
For example, take the following hypothetical. The plaintiff steps off a bus at a bus stop, crosses in front of the bus, and as the plaintiff is crossing the street, he is hit by a car traveling in the opposite direction. Assume that the car that hits the plaintiff is driven by a woman who is soon to file for bankruptcy. Learning this before filing suit, the plaintiff quickly settles with the driver for a small sum and signs a covenant not to sue her. Therefore the plaintiff sues only the bus company, knowing that the driver of the car would be unable to satisfy any large judgment. Under the laws of New Jersey and Pennsylvania, the jury would only be able to allocate fault to the plaintiff and to the bus company, the parties to the suit. This result is completely unfair to the defendant bus company. With the control over the litigation that the plaintiff has from a procedural standpoint, the plaintiff should not be allowed to force a defendant to pay more damages by not joining a particular party. The plaintiff, not the bus company, should shoulder the risk of being involved in an accident with a third party who is unable to pay her proportionate share of liability.
There are two criteria that must be met before a jury may consider the fault of an entity that is not a party to the suit.
Allowing a defendant to argue that a party who cannot be identified is at fault takes the concept of fairness to the defendant too far. Parties that are immune and parties that settle should not cause a defendant to pay more than his proportionate share of damages, because these parties are out of the case either by action of the legislature or of the plaintiff. However, a phantom tortfeasor is not present because of his own elusiveness. The plaintiff, who may not recover his full damage award because of fault designated to an immune party or settling defendant, should not be denied recovery because of the fault of an unidentifiable party. An example of this situation is Bencivenga v. J.J.A.M.M., Inc. In this case, the plaintiff brought a personal injury suit against a dance club after an unknown tortfeasor hit him in the face with a bottle. The court denied the defendant's request to apportion fault to the unnamed tort feasor.
The second criteria is that an immune or non-present party must, as a matter of law, meet the threshold evidentiary standard that there is evidence of conduct, which, if believed by the jury, would constitute negligence on the part of the person or of the other legal entity about whom such evidence is introduced. The purpose of this threshold is to place limits on the defendant's right to have fault allocated by the jury. If a non-party does not meet this evidentiary standard, then it would be too distracting for the jury to hear evidence about it. While a defendant should be permitted to display evidence of a party who may be at fault, this right should not extend so far as to bring in evidence of a party who cannot meet this standard, for this will only serve to take the focus away from the parties who are involved in the matter.
Section D clarifies that no party shall be liable for more than their fair share of damages. To calculate each party's liability, simply multiply the total damages award with a particular defendant's percentage of fault. No defendant can be liable for more than that amount.
E. Section E--Settling Parties
The final section of the statute addresses the way a court shall treat parties who have settled with the plaintiff. The text of this section follows the treatment of settling defendants in New Jersey. Under this statute, a settling party is assigned a percentage of fault, and the remaining parties are to pay the proportion of damages equal to their own percentage of fault. This system may allow a plaintiff to recover more or less than the jury awarded damages. However, these results are acceptable in the context of encouraging settlement, which will increase the efficiency of the judicial system.
In a negligence action involving multiple defendants, the fates of the various parties are determined by how the jury allocates fault. When a jury can only allocate fault to the parties in the litigation, then defendants may be forced to pay more than their fair share of the damages if there are parties to the transaction who cannot be liable to the plaintiff, whom the plaintiff has not made a party to the suit, or who have already settled with the plaintiff. However, when a jury allocates fault to all parties in a transaction, then each defendant can be confident that they only will be liable for their share of damages equivalent to their share of fault. Fairness and efficiency dictate that all parties to a transaction should be assigned a percentage of fault. This, in addition to being fair to the defendant, takes some power away from plaintiffs, who in a jurisdiction like New Jersey or Pennsylvania, can choose not to sue insolvent parties, so that "deep-pockets" will be forced to pay the damages, even if they are not entirely at fault. These results can be avoided by the enactment of the statute proposed by this Note.
[1.] The importance of this topic is demonstrated by the number of tort suits filed each year. According to the Administrative Office of the United States Courts' Federal Court Management Statistics, tort suits comprised 21.7% of all civil suits filed in Federal Courts in 1995:
NATURE AND NUMBER OF CIVIL SUITS FILED IN THE FEDERAL COURTS IN 1995 Prisoner Petitions 63,550 Torts 53,986 Civil Rights 36,600 Contracts 29,360 Labor Suits 14,954 Social Security 9354 Real Property 6869 Copyright, Patent and Trademark 6866 Government-Initiated Forfeitures, Penalties and Tax Suits 4719 Government-Initiated Recovery of Overpayments and Enforcement of Judgments 1822 Antitrust 781 All Other Civil 19,474 Total 248,335
Nature and Number of Civil Suits Filed in the Federal Courts in 1995; Busy Prisons, NAT'L L.J., Aug. 26, 1996, at A1, A5.
[2.] THE MERRIAM-WEBSTER DICTIONARY 509 (3d ed. 1974).
[3.] Presently, only Alabama, Maryland, North Carolina and Virginia have retained contributory negligence. The other 46 states have rejected contributory negligence and adopted some form of comparative negligence. See Kathleen M. O'Connor & Gregory P. Sreenan, Apportionment of Damages: Evolution of a Fault-Based System of Liability for Negligence, 61 J. AIR L. & COM. 365, 369-70, nn. 20-21 (1996).
[4.] Under the theory of contributory negligence, if there is any fault on the part of the plaintiff, the claim is dismissed; therefore, once that threshold question has been answered, the jury can focus on apportioning fault among the defendants. Alabama, Maryland, North Carolina and Virginia have retained contributory negligence. See O'Connor & Sreenan, supra note 3.
[5.] 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). See Timothy Bettenga, Instructing the Jury on Comparative Fault Issues: A Current Guide to Understanding the Nature of Comparison in Comparative Fault, 14 WM. MITCHELL L. REV. 807 (1988).
[6.] See O'Connor & Sreenan, supra note 3, at 367 & n.9 (citing 19 Mass. (2 Pick.) 621, 624 (1824)).
[7.] See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 65, at 451 (5th ed. 1984) [hereinafter PROSSER AND KEETON]; RESTATEMENT (SECOND) OF TORTS §§ 463, 464 (1965).
[8.] O'Connor & Sreenan, supra note 3, at 367-68 (citing Smith v. Dep't of Ins., 507 So. 2d 1080, 1090 (Fla. 1987)).
[9.] See PROSSER AND KEETON, supra note 7, § 65, at 452.
[10.] One explanation of this doctrine is as follows:
Under this doctrine, equity will not grant relief to a party, who, as actor, seeks to set judicial machinery in motion and obtain some remedy, if such party in prior conduct has violated conscience or good faith or other equitable principle. One seeking equitable relief cannot take advantage of one's own wrong.
The Negligence Act does not . . . provide for apportionment among all persons responsible for a tortious injury. It merely provides for apportionment among those defendants against whom recovery is allowed. There is no suggestion in that statute that all possible tortfeasors be brought into court, and certainly no requirement that this be done to achieve the purposes of the act. The trier of fact is simply to apportion liability on a percentage basis among those defendants on the record against whom recovery is allowed.Id.
The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party; and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering.
In submitting the comparative fault question, the court must submit the names of all persons whose conduct could be found to be negligent and contributing as a cause to the plaintiff's injury or to the accident. If the total combined negligence is to equal 100%, then the percentage contribution [of fault] by all persons whose conduct potentially contributed to the accident or the injury, whether or not a party to the proceeding, must be submitted.Lines, 272 N.W.2d at 903 (quoting 4 MINNESOTA PRACTICE, JURY INSTRUCTION GUIDES, JIG II, 148 S, Comment, at 128 (2d ed. 1974)).
Step 1) Multiply each nonsettling defendant's percentage of liability by the noneconomic damages awarded by the jury to determine the amount each nonsettling defendant owes the plaintiff.
Step 2) If there has been a settlement, apply the same formula to determine the amount the settling defendant would have owed pursuant to the jury verdict.
A) If the amount settled for is less than the amount the settling would have owed, the remaining defendants pay their amount owed without regard to the settlement.
B) If the amount settled for is greater than the amount the settling defendant would have owed, the remaining defendant(s) are entitled to have the amount they owe reduced proportionately. DeWitt, 642 So. 2d at 834.
[98.] KAN. STAT. ANN. § 60-258a (1995) reads as follows:(b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants. . . . (c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to such death, personal injury, property damage or economic loss, shall be joined as an additional party to the action. (d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such party's causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.Id.
[99.] 580 P.2d 867 (Kan. 1978). The plaintiff, Britt Brown, was a car owner who was involved in an accident while his son was driving his car. The jury found the defendant driver 10% negligent and entered judgment against her for 10% of the total damage award. The son was not made a defendant of the suit. See id.
[100.] Id. at 873-74. The court also stated thatthere is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some compelling social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the codefendant to pay more than his fair share of the loss. The same is true if one of the defendants is wealthy and the other is not.Id.
[101.] KAN. STAT. ANN. § 60-258a (1995).
[102.] See Brown v. Keill, 580 P.2d 867 (Kan. 1978). In resolving this issue, the court answered several other questions. First, the court held that the comparative negligence statute "permit[s] a defendant in a comparative negligence case to bring in other joint tort-feasors so their percentage of fault can be determined and their liability, if any, adjudged." Id. at 875. Second, the court held that if this party has a valid defense such as interspousal immunity or a covenant not to sue, this will not defeat the intention of the statute of assigning that party a percentage of fault even though they cannot be liable to the plaintiff. See id. at 876.It appears after considering the intent and purposes of the entire statute that such a party's fault should be considered in each case to determine the other defendant's percentage of fault and liability, if any. The proportionate liability . . . under K.S.A. § 60-258a(d) should not be increased merely because a party joined under subsection (c) has a valid defense to plaintiff's claim, other than lack of negligence. Id.
For other Kansas cases on this point of law, see Cerretti v. Flint Hills Rural Elec. Cooperative Ass'n, 837 P.2d 330, 347 (Kan. 1992) ("The [comparative negligence] statute was enacted to impose individual liability for damages based on the proportionate fault of all the parties to the occurrence which gave rise to the injuries and damages in a single action whenever possible.").
[103.] See DaFonte v. Up-Right, Inc., 828 P.2d 140 (Cal. 1992) (stating that § 1431.2 requires a determination of the percentage of fault of all entities who contributed to the accident rather than only those who had been joined as defendants).
[104.] See Bartlett v. New Mexico Welding Supply, Inc., 646 P.2d 579 (N.M. 1982) (stating that the defendant should not be held liable for the negligence of an unknown driver who contributed to the accident).
[105.] See Paul v. N.L. Indus., Inc., 624 P.2d 68, 70 (Okla. 1980) ("To limit the jury to viewing the negligence of only one tortfeasor and then ask it to apportion that negligence to the overall wrong is to ask it to judge a forest by observing just one tree. It cannot, and more important should not, be done.").
[106.] According to O'Connor & Sreenan, Alabama, Maryland, North Carolina and Virginia have retained systems of contributory negligence. See O'Connor & Sreenan, supra note 3, at 381.
[107.] See supra notes 5-21 and accompanying text (discussing contributory versus comparative negligence).
[108.] See STEVEN L. WILLBORN ET AL., EMPLOYMENT LAW: CASES AND MATERIALS 729-49 (1993). Employers are barred from further liability to an employee because of the exclusivity of the workers' compensation remedy. "Exclusivity is one of the founding principles of workers' compensation. In exchange for a no-fault system (which benefited workers), workers' compensation became the exclusive remedy against the employer for a worker injured on the job (which benefited employers)." Id. at 729.
[109.] This hypothetical is based on Ramos v. Browning Ferris Industries of South Jersey, Inc., 476 A.2d 304 (N.J. Super. Ct. App. Div. 1984).
[110.] In Ramos, the court refused to allow the jury to allocate negligence to the employer, who was not liable to the plaintiff because of the workers' compensation bar. The court held that "[a] truer verdict is more likely to be returned where the fact finder's attention is ultimately fixed on the conduct of the parties who will be affected by the verdict." Ramos, 476 A.2d at 309.
[111.] See id. at 306.
[112.] The Wisconsin cases of Hauboldt v. Union Carbide Corp., 467 N.W.2d 508 (Wis. 1991), see supra notes 61-64, and York v. National Continental Insurance Co., 463 N.W.2d 364 (Wis. Ct. App. 1990), held that where there is no causal negligence on the part of the plaintiff, there is no prejudice from failure to include the immune or non-party from the jury's consideration. However, these courts have missed the point of including non-parties in the jury's allocation of fault. In negligence cases, the point of such a distribution of fault is so the defendants who are in the case do not end up paying more than their own proportion of fault. By only allowing this to occur when there is fault on the part of the plaintiff, the court creates a situation of uncertainty. For instance, when the issue of plaintiff's negligence is disputed, should the court allow evidence of non-parties' fault, but allow the jury to consider that evidence if it assigns any fault to the plaintiff?
[113.] Kurt G. Stiegelmeier, Designation of Immune, Nonliable, and Unknown Nonparties, 22 COLO. LAW. 31, 31 (1993).
[114.] See Julie O'Daniel McClellan, Note, Apportioning Liability to Nonparties in Kentucky Tort Actions: A Natural Extension of Comparative Fault or a Phantom Scapegoat for Negligent Defendants?, 82 KY. L.J. 789, 816 (1994) (under Kentucky law, plaintiff can "no longer avoid apportionment and recover fully from a defendant who is only partially at fault by not bringing an action against a negligent friend, relative, or financially unstable tortfeasor. The defendant can prevent such a result by bringing a third-party claim against the unnamed joint tortfeasor."). Dix & Associate Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24 (Ky. 1990), was the first case in which the Kentucky Supreme Court held in favor of apportionment of liability to a nonparty, and to an employer immune because of the workers' compensation bar.
[115.] See N.J. STAT. ANN. § 2A:15-5.2 (West 1996).
[116.] See 42 PA. CONS. STAT. § 7102 (1996).
[117.] However, according to the court in Straley v. United States, 887 F. Supp. 728 (D.N.J. 1995), the bus company defendant would be able to introduce the negligence of the insolvent car driver as an intervening cause, which means that the defendant would have to show that the intervening cause was 100% liable for the resulting accident.
[118.] See Fabre v. Marin, 623 So. 2d 1182, 1185-86 (Fla. 1993). The court held that:a result where a party involved in the accident but who is not assigned a percentage of fault defies common sense. It would be incongruous that the legislature would have intended that the [defendant's] responsibility be 100% in situations where [plaintiff's] vehicle was operated by her husband and only 50% in situation where by chance she was a passenger in a vehicle operated by [a driver who was not immune].Id.
[119.] See id. at 1186. In Fabre the court concluded that:The legislature decided that . . . a plaintiff should take each defendant as he or she finds them. If a defendant is insolvent, the judgment of liability of another defendant is not increased. The statute requires the same result where a potential defendant is not or cannot be joined as a party to the lawsuit.Id.
[120.] 609 A.2d 1299 (N.J. Super. Ct. App. Div. 1992).
[121.] The court noted that "a fictitious person is not someone against whom recovery can be sought because . . . due process prevent[s] entry of judgment against a person designated by a fictitious name." Id. at 1303.
[122.] This same legal standard is used in both Wisconsin and Minnesota. See MINN. STAT. ANN. § 604.01 (West 1996); Johnson v. Niagra Mach. & Tool Works, 666 F.2d 1223, 1226 (8th Cir. 1981).Under the Minnesota comparative negligence statute . . . , "(if) there is `evidence of conduct which, if believed by the jury would constitute negligence (or fault) on the part of the person . . . inquired about,' the fault or negligence of that person should be submitted to the jury" even though that person is not party to the lawsuit.Frey v. Snelgrove, 269 N.W.2d 918, 923 (Minn. 1978) (citing Connar v. West Shore Equip., Inc., 227 N.W.2d 660, 662 (Wis. 1975)); see also Lines v. Ryan, 272 N.W.2d 896 (Minn. 1978); WIS. STAT. ANN. § 895.045 (West 1996); Connar, 227 N.W.2d at 663.
[123.] See Bryan Aylstock, Phantom Tortfeasors: Parties for the Jury to Consider in its Apportionment of Fault?, 45 FLA. L. REV. 733, 742 (1993) (allowing jury apportionment of fault among all parties to the transaction "places Florida plaintiffs in the unenviable position of having to defend an absent tortfeasor because many of the tortfeasors named in lawsuits will undoubtedly concentrate their defense on blaming the empty chair"). While this is a valid criticism of allowing the jury to allocate fault to immune and non-parties, the evidentiary standard used in this Note's proposed statute, as well as in Wisconsin and Minnesota, alleviates some of these problems by creating a minimum level of proof that must be met before evidence of that party's negligence can be presented to the jury.
[124.] See Young v. Latta, 589 A.2d 1020 (N.J. 1991).
[125.] For example, assume plaintiff (P) sues defendants (D1, D2 and D3) in a suit resulting from a four car collision. Plaintiff settles with D1 for $60,000, and the jury awards $100,000 in damages and allocates negligence as follows: P--25%; D1--25%; D2--25%; D3--25%.
Had there been no settlement, each defendant would be liable for $25,000, and plaintiff would recover a total of $75,000. However, as a result of the settlement, D2 and D3 are still liable for $25,000 each, but plaintiff ends up recovering $110,000, more than the jury award of damages. Had the plaintiff's settlement with D1 been for $10,000, plaintiff would then only recover a total of $60,000; less than the jury award of damages.
[126.] See supra note 28 and accompanying text.
[127.] See supra note 57 and accompanying text. | Washington University School of Law Home Page | Publications Home Page |
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