REST 3d TORTS-AL s 29E
Restatement (Third) of Torts: Apportionment Liab. s 29E (P.F.D. Rev., 1999)
Restatement of the Law Third
Torts: Apportionment of Liability
Proposed Final Draft (Revised) [FNa]
(March 22, 1999)
Topic 2. Liability of Multiple Tortfeasors for Indivisible Harm
Track E: Hybrid Liability Based on Type of Damages
Copyright (c) 1999 The American Law Institute
s 29E. ASSIGNMENT OF RESPONSIBILITY: JOINT AND SEVERAL LIABILITY FOR ECONOMIC DAMAGES AND SEVERAL LIABILITY FOR NONECONOMIC DAMAGES
TEXT
(a) When plaintiff seeks or is permitted by law to recover only economic damages for an indivisible injury and at least one defendant and another defendant, plaintiff, or settling tortfeasor may be found responsible by the factfinder for the plaintiff's indivisible injury, each party and each settling tortfeasor whose tortious conduct was a legal cause of plaintiff's indivisible injury are submitted to the factfinder for assignment of a percentage of comparative responsibility.
(b) When plaintiff seeks and is permitted by law to recover noneconomic damages, whether or not economic damages are also sought and recoverable for the same indivisible injury, each party and each identified person whose tortious conduct was a legal cause of the plaintiff's indivisible injury are submitted to the factfinder for assignment of a percentage of comparative responsibility.
COMMENTS
Comment:
a. Cross-reference. Responsibility is assigned to parties, settling tortfeasors, and other persons pursuant to ss 3-9 of this Restatement.
b. Party. The term "party" is used in its technical sense to refer only to those who have been joined as a party in the lawsuit. It includes plaintiffs, defendants, third-party defendants, and anyone else, who, because of participation in the lawsuit, will be bound by the judgment entered.
c. Settling tortfeasor. The term "settling tortfeasor" is defined in s 40, Comment c. It includes those who have settled with the plaintiff on a basis that releases less than all persons who may be liable to the plaintiff. For purposes of the rule stated in this section, it includes those against whom the plaintiff may not recover pursuant to s 2 of this Restatement. The effect of any responsibility assigned to a settling tortfeasor on the form of the judgment is addressed in s 26, s 29B, Comment l, and s 29E, Comment o.
d. Person. The term "person" is used to distinguish certain nonparties from those who are parties in a suit and those who have entered into a settlement with the plaintiff. A person is someone who is not a party to the suit and has not entered into a settlement with the plaintiff but whose tortious actions (even if protected by an immunity) allegedly were a legal cause of plaintiff's indivisible injury. An "identified person" is a person who has been sufficiently identified to permit service of process or discovery from that person.
e. Persons to whom responsibility can be assigned. The rule stated in this section distinguishes between cases in which the only type of damages that the plaintiff may recover is economic damages and cases in which at least some of the damages recoverable are noneconomic. Pursuant to the rule stated in s 28E, liability of independent tortfeasors is joint and several for economic damages.Consequently, when the only damages recoverable are economic damages, responsibility should only be assigned to the parties and any settling tortfeasors, including those against whom the plaintiff may not recover pursuant to s 2 of this Restatement. See s 29A, Comment d. However, in the vast majority of personal-injury cases, in which the plaintiff seeks recovery of both economic and noneconomic damages, the rule stated in this section recognizes that defendants will be jointly and severally liable for a portion of the damages and severally liable for the remainder. Accordingly, in those cases, the rule stated in this section permits other identified persons to be submitted to the factfinder for assignment of a percentage of comparative responsibility for the plaintiff's injury. Unidentified nonparties may not be assigned a percentage of comparative responsibility as explained in Comment l.
Because defendants are only severally liable for a portion of the plaintiff's damages, s 29E permits the factfinder to assign responsibility to identified nonparties whose tortious conduct was a legal cause of the plaintiff's indivisible injury. Those persons do not have to be joined in the case as parties, although it is desirable that, when jurisdictional rules permit, nonparties who are alleged to be legally responsible be joined as parties in the case. See Comment i.
Although the nonparty will not be a party and therefore will not be bound by the judgment, the requirements that there be notice about submission of the nonparty (Comment k) and that the nonparty be identified (Comment l) permit the parties to obtain discovery from the nonparty. If a trial is necessary, the plaintiff and defendants have conflicting interests in the responsibility assigned to the nonparty, thereby ensuring an adversarial presentation of the role and responsibility of the nonparty in causing the plaintiff's injury.
Any nonparty that a party proposes should be assigned some portion of comparative responsibility could be the subject of a motion and ruling by the court on whether there is sufficient evidence to permit the factfinder to assign a percentage of comparative responsibility to that nonparty. The inquiry would be the same as that on a motion for a directed verdict or for judgment as a matter of law, except that the motion would not be made by a party seeking dismissal, but by another party seeking a determination that the evidence of a nonparty's conduct is insufficient to permit the factfinder to assign responsibility to that nonparty.
COMMENTS
Illustration:
1. A private airplane piloted by B crashes and destroys A's home. A sues B, C, the manufacturer of the airplane, and D, a flight instructor who was instructing B while B was piloting the plane. A seeks recovery of the cost of rebuilding A's home. D alleges that E, who refueled the plane, was negligent in providing contaminated fuel when refueling the airplane, but E cannot be joined in the suit because of a lack of personal jurisdiction over E. Because A only seeks recovery of economic damages (the cost of rebuilding the house) all defendants are jointly and severally liable for any recovery A may obtain. Pursuant to the rule stated in s 29E(a), the factfinder may not assign responsibility to E, and therefore E should not be submitted to the factfinder for assignment of any responsibility.
If A had sought recovery for the anguish of observing the destruction of the house (and such damages were legally permissible), defendants would be severally liable for that item of damages. Pursuant to the rule stated in s 29E(b), the factfinder should be instructed to assign responsibility to E, in addition to the defendants, and E should be submitted to the factfinder for assignment of E's comparative responsibility.
f. Persons immune from liability. A wide variety of immunities or limitations may exist that bar the plaintiff from recovering damages from a person who would otherwise be legally responsible for the plaintiff's injury. These include traditional immunities such as sovereign immunity, intrafamily immunities, and charitable immunities, to the extent the applicable law recognizes those immunities. It also includes those persons for whom the statute of limitations bars suit. In addition, the liability of certain tortfeasors may be limited to less than the amount that they would otherwise be required to pay based on the factfinder's determinations of their responsibility. In cases in which those limitations exist, the difference between the partially immune tortfeasor's share of the plaintiff's injuries and the maximum amount for which the partially immune tortfeasor is liable pursuant to the limitations imposed by applicable law should be treated the same as if an immune person were liable for that amount. All such immune persons should be submitted to the factfinder for assignment of a percentage of comparative responsibility whenever other nonparties are submitted to the factfinder pursuant to Subsection (b) of s 29E.
However, in some cases immunities may be an alternative way of stating that the person has no legal duty or has not breached any duty that exists. Thus,for example, a municipality may be "immune" from suit for failing to provide police protection to an individual who was assaulted. This "immunity" may obscure that a municipality has no duty of care in tort law to the general public to prevent assaults and/or that there was no reasonable means of precaution by which to prevent any such assault, such that any duty that might have existed was not breached as a matter of law. Identifying those immune persons who are truly immune despite tortious conduct that would be actionable and those whose immunity is an alternative way of stating that there is no duty or no breach of duty may be uncertain and difficult. Courts should, nevertheless, attempt to identify the latter class of persons, who should not be submitted to the factfinder for assignment of responsibility. Plaintiffs should be permitted to seek, pursuant to the procedure identified in Comment e, this outcome. Immune employers are not covered by this Comment, but are addressed in Comment g.
COMMENTS
Illustration:
2. A was attacked by B, a disturbed and violent student, with an electric stun gun while attending a parent-teacher conference at A's child's public school. A sues B, C, the governmental entity responsible for the school, for providing inadequate security, and D, the retail establishment that sold the stun gun to B. Pursuant to the applicable jurisdiction's law, a governmental entity's liability in a tort claim is limited to $10,000. The factfinder assigns B 60 percent responsibility, C 30 percent responsibility, and D 10 percent responsibility. The factfinder determines that A suffered $100,000 in economic damages and $100,000 in noneconomic damages. Judgment should entered against B jointly and severally in the amount of $200,000 (because B committed an intentional tort (see s 22)), against C severally in the amount of $10,000 (because of the statute limiting a governmental entity's liability), and against D jointly and severally in the amount of $100,000 and severally in the amount of $10,000 (because D is jointly and severally liable for the economic damages and severally liable for D's 10percent of responsibility of the noneconomic damages). If D is negligent because of its failure to protect against the risk of the stun gun being used for an intentional tort, D is jointly and severally liable for $200,000 (see s 24).
g. Immune employers. The meshing of the no-fault workers' compensation system and the tort system presents a difficult problem and a variety of less than entirely satisfactory solutions. A predicate of virtually all workers' compensation systems is that the benefits available to an injured employee are the exclusive remedy for the employee. Thus, a tort action against the employer is not available to the employee. Yet, the employee may assert a tort action against a "third party" who is alleged to be liable for the employee's injury. Third-party actions are most commonly, although not exclusively, product- liability claims.
In addition to a claim by an injured employee against a third party, virtually all state workers' compensation systems provide the employer with a subrogation right for the workers' compensation benefits paid to an employee. The employer is entitled to recover its subrogation claim from any recovery by the employee in a third-party action. Nothing provided in this section affects the subrogation claim. However, some jurisdictions provide a defendant in a third- party action with a credit against the judgment for any employer responsibility up to the amount of the workers' compensation benefits.
A variety of methods exists in different jurisdictions as to how to handle any responsibility of the employer in causing the plaintiff's injury. See s 30C, Comment c. With a hybrid scheme of joint and several liability for economic damages and several liability for noneconomic damages, treating the employer as an immune person for purposes of the economic damages and as a nonparty tortfeasor for the noneconomic portion of the damages is the most logical resolution of this question. Thus, in the case of economic damages, the immune employer and its responsibility would be irrelevant, and all liable defendants would be jointly and severally liable to the plaintiff for all recoverable damages. However, when the plaintiff seeks to recover noneconomic damages, the factfinder would, subject to the qualification noted in Comment f, assign responsibility to the nonparty employer, and each defendant would only be responsible for the comparative share assigned to that defendant of the noneconomic damages. The immune employer would be treated in the same fashion as other immune parties.
COMMENTS
Illustrations:
3. A, who suffers from asbestosis as a result of occupational exposure to asbestos fibers, sues B and C, sellers of asbestos to A's employer, D. A seeks recovery of economic and noneconomic damages for the asbestosis. B alleges that D is solely or partially responsible for A's injury. Pursuant to the rule stated in this section, D, although a nonparty in the case, should be submitted to the factfinder for apportionment of responsibility.
4. Same facts as in Illustration 3. The factfinder assigns responsibility to B, C, and D in the amounts of 25, 25, and 50 percent respectively and finds that A is entitled to recover $100,000 in economic damages and $200,000 in noneconomic damages. The judgment against B and C should be in the amount of $100,000 jointly and severally and in the amount of $50,000 severally against each of B and C.
The question of whether the employer (or the employer's insurer) should have any subrogation lien reduced when responsibility is assigned to the employer in connection with the noneconomic damages with the third-party defendant receiving a corresponding credit against the jury's determination of economic damages is a matter on which the Institute and this Restatement take no position. See s 30C, Comment b.
The rationale behind this treatment of immune employers in this "E" series rests on the critical predicate for the "E" series: full compensation of economic damages is sufficiently important to allocate the risk of insolvency to defendants; to prevent unfairness by imposing all of the risk of insolvency on defendants, the risk of insolvency remains with the plaintiff for noneconomic damages. The resolution of this issue and the rationale are not perfect and might be criticized on at least two fronts: requiring a defendant to bear the portion of economic damages attributable to the responsibility of the employer requires that defendant pay a share of the damages that, pursuant to the workers' compensation tradeoff, is allocated to the plaintiff when no other tortfeasor (and consequently a third-party action) is available. See s 30C, Reporters' Note to Comment d. Second, most jurisdictions have statutory provisions that address the matter of how to allocate liability among a plaintiff, employer, and third-party tortfeasor and the rule stated in this section is unhelpful for and unreflective of the statutory provisions in those jurisdictions. Nevertheless, treating employers the same as other immune parties is most consistent with the premises and policies reflected in this "E" series.
h. Rationale. The principal purpose of several liability is to limit the liability of any tortfeasor to the plaintiff's damages discounted by the comparative responsibility of that tortfeasor. To ensure that defendants are not held liable for more than their share of noneconomic damages, this section permits the factfinder to assign responsibility not only to all parties and settling tortfeasors, but also to any other identified person for which there is sufficient evidence introduced at trial to permit the factfinder to determine that the person's tortious conduct was a legal cause of the plaintiff's indivisible injury. This enables the factfinder's assignment of responsibility to reflect the percentage share of the plaintiff's noneconomic damages for which each defendant is liable. Since several liability is limited to noneconomic damages in this "E" series, this section only permits assignment of comparative responsibility to nonparties when the plaintiff may recover at least some noneconomic damages.
Although this section provides otherwise, it is possible to have a hybrid-damages several-liability system and exclude nonparties from consideration by the factfinder in assigning comparative responsibility. Indeed, the case for excluding nonparties from consideration is stronger in hybrid-damages several-liability jurisdictions than in jurisdictions with pure several-liability. See s 29B, Comment d. When defendants are jointly and severally liable for a portion of the damages, both plaintiffs and defendants share the obligation (and incentive)to join all persons who may be liable for the plaintiff's injuries. By contrast pure several liability imposes the joinder obligation on plaintiffs. Moreover, defendants who are jointly and severally liable for a portion of the plaintiff's injuries may be required to pursue contribution claims against tortfeasors who cannot be joined. Again, this is inconsistent with pure several liability, which imposes this obligation on plaintiffs. Nevertheless, excluding nonparties would be inconsistent with the limited several liability provided in this "E" series in several respects: 1) It would impose insolvent nonparties' share of noneconomic damages on defendants; and 2) it would impose some portion of the share of noneconomic damages of immune parties on defendants. Jurisdictions with several liability that do not permit the factfinder to assign comparative responsibility to nonparties have tempered its harsh effects by shifting some of the burdens and risks back to the defendant, even though that shift is inconsistent with the basic principle underlying several liability -- each defendant's liability is limited to its comparative share of the plaintiff's harm. Nevertheless, with a hybrid system like this "E" series, the harshness of pure several liability is already ameliorated. Thus, this section permits submission of nonparties to the factfinder when plaintiff may recover noneconomic damages for which defendants are severally liable.
i. Joinder of nonparties by defendants. When a defendant is jointly and severally liable for any portion of the plaintiff's damages, the defendant has a contribution claim and can employ a third-party complaint to join any nonparty alleged to also be legally responsible for the plaintiff's injury. Ordinarily, any defendant with potential joint and several liability who claims that a nonparty is legally responsible for the economic damages attributable to the plaintiff's injury should join that nonparty, unless personal jurisdiction cannot be obtained over the nonparty, the person is immune, the person has settled with the plaintiff, or all of the parties stipulate that the nonparty should not be joined.In those situations and when a defendant could only be held severally liable, the defendant should be entitled to have responsibility assigned to nonparties, as provided in Comment g.
In rare instances, the only harm for which plaintiff may be able to recover is noneconomic. In those situations, the procedural device of a third-party complaint by any defendant who claims that a nonparty is also responsible for the plaintiff's damages may not be available to join the nonparty. Although it would seem desirable for some alternative procedural device to be developed that would permit joinder of a nonparty by a defendant who is only severally liable, the defendant should, at a minimum, provide notice of the nonparty and its possible responsibility consistent with Comment k.
j. Legally relevant comparative responsibility. The comparative responsibility of a party or other person is legally relevant when, pursuant to applicable law, it affects the apportionment of liability among the parties to the case.The comparative fault of a party always affects the apportionment of liability,both in terms of reducing the plaintiff's recovery as provided in s 7 and for purposes of contribution among defendants, pursuant to s 33. In addition, a settling tortfeasor's comparative responsibility determines the credit provided, pursuant to s 26, to a nonsettling defendant who is jointly and severally liable for economic damages, pursuant to Subsection (a) of this section. When the comparative responsibility of nonparty, identified persons is submitted to the factfinder pursuant to Subsection (b) of this section, they affect the apportionment of liability among parties because assignment of a share of comparative responsibility to a nonparty will reduce the share of comparative responsibility that can be assigned to the parties.
k. Notice. Any party who proposes that a nonparty be submitted to the factfinder pursuant to s 29E(b) should provide sufficient notice to all other parties to permit adequate discovery about the role of that nonparty and, where feasible, to permit the plaintiff to join the nonparty before the statute of limitations runs.
When a defendant is or may be jointly and severally liable, a defendant who believes that a nonparty was also responsible for the plaintiff's injury may join the nonparty through a third-party complaint. Joining the nonparty as a third-party defendant serves the notice function identified above. Because responsibility may be imposed on nonparties who cannot be joined, some other procedural device will be required to effectuate the notice required by this Comment. Although not strictly a "defense," providing notice in the affirmative defenses asserted in the answer to the complaint is one method consistent with contemporary practice that could be employed. Alternatively, some jurisdictions may create a new procedural mechanism for providing this notice. As with all factual issues, the question of whether notice is timely depends on a variety of circumstances that are relegated to the discretion of the trial judge.
l. Persons who remain unidentified. A nonparty who is not sufficiently identified to be subject to service of process or discovery should not be submitted to the factfinder for assignment of responsibility. A minimum condition for an assignment of responsibility to nonparties is that the nonparties be sufficiently identified that they could be joined in the suit (regardless of whether personal jurisdiction or subject-matter jurisdiction would exist), or that discovery could be obtained from the nonparty.
m. Verdict form. If a jury is serving as the factfinder, the court should submit a verdict form to the jury that seeks a determination of the total damages suffered by the plaintiff, the portion of the damages that consists of economic damages and the portion that consists of noneconomic damages, and the responsibility assigned to each party, settling tortfeasor, and other person, if nonparties are submitted to the factfinder pursuant to the rule stated in Subsection (b) of this section. If nonparties are not submitted to the jury for assignment of responsibility pursuant to Subsection (a) of the rule stated in this section,then the court should submit a verdict form to the jury that requires it to identify the total damages suffered by the plaintiff and the responsibility assigned to each party and settling tortfeasor.
COMMENTS
Illustration:
5. A sues B and C, alleging B's negligence and C's defective product caused an indivisible injury to A who suffered both economic and noneconomic damages. B and C assert that D, A's employer, was negligent in causing the injury to A. The verdict form should require the factfinder to identify the economic and noneconomic damages of the plaintiff and assign responsibility to each of B, C, and D.
n. Form of judgment. The court should prepare the judgment in accord with the jury responses and the provisions of ss 20-26 and ss 28E-29E. If any defendant is held jointly and severally liable pursuant to s 22 (intentional tortfeasors), s 24 (tortfeasors liable for failure to protect the plaintiff from the specific risk of an intentional tort), or s 25 (concerted action), or for some or all of the plaintiff's damages pursuant to the rule stated in s 28E, the judgment should identify the defendants who are held jointly and severally liable for the entirety of plaintiff's damages pursuant to s 22 or s 25, the comparative shares of the defendant who failed to protect the plaintiff from the risk of an intentional tortfeasor pursuant to s 24, the amount of plaintiff's economic damages for which all defendants are jointly and severally liable pursuant to s 28E, the amount of plaintiff's noneconomic damages for which each defendant is severally liable, and also state the comparative share of responsibility assigned to each defendant, in the event contribution is sought pursuant to s 33. Any responsibility assigned to nonparties should be ignored in determining the liability of those who are held jointly and severally liable for the entirety of plaintiff's damages pursuant to s 22 or s 25 and in determining joint and several liability for plaintiff's economic damages pursuant to the rule stated in s 28E.
COMMENTS
Illustrations:
6. Same facts as in Illustration 5. The jury finds that plaintiff suffered $100,000 in economic damages and $200,000 in noneconomic damages. The jury apportions responsibility to B, C, and D in the amounts of 25, 25, and 50 percent,respectively. The judgment should provide for joint and several liability of B and C in the amount of $100,000 (because joint and several liability is imposed for economic damages (see s 28E)) and several liability for each of B and C in the amount of $50,000 (because several liability is imposed for noneconomic damages (s 28E)). Each of B and C would be entitled to contribution from the other in the amount of up to $50,000, if one of them pays more than $100,000 ($50,000 several liability plus $50,000 share of the joint and several liability) to the plaintiff and the other has paid less than $100,000.
7. Same facts as in Illustrations 5 and 6, except that A also sues E, the retailer of the defective product, alleging that the retailer is strictly liable as a seller of the defective product. Pursuant to the rule stated in s 7, Comment j, the verdict form submitted to the jury should provide for a single apportionment of responsibility to C, the manufacturer, and E, the retailer. The jury apportions responsibility to B, C and E, and D in the amounts of 25, 25, and 50 percent, respectively. The judgment should provide for joint and several liability of B, C, and E in the amount of $100,000 and several liability for each of B and of C and E (together) in the amount of $50,000. B would be entitled to contribution from C or E in the amount of up to $50,000 if B pays more than $100,000 ($50,000 several liability plus $50,000 share of the joint and several liability) to the plaintiff and C and E have paid less than $100,000. Similarly, C or E would be entitled to contribution from B in the amount of up to $50,000 if together they pay more than $100,000 to the plaintiff and B has paid less than $100,000. E would be entitled to indemnification from C pursuant to the provisions of s 32.
o. Partial settlements. In the event of a settlement with one or more, but less than all, tortfeasors, the settling tortfeasors are submitted to the factfinder for an assignment of a percentage of comparative responsibility under this section. Consistent with the principles provided in s 26, the plaintiff's recoverable economic damages are reduced by the comparative share of economic damages attributable to the settling tortfeasor. The plaintiff's economic damages are reduced only in the event that the settling tortfeasor otherwise would have been liable to the nonsettling defendants for contribution. The settling tortfeasor's comparative share of economic damages is calculated by multiplying the percentage of comparative responsibility assigned to the settling tortfeasor by the total economic damages awarded to the plaintiff. Since nonsettling defendants are only liable for their comparative responsibility percentage share of plaintiff's noneconomic damages, no credit for the noneconomic damages portion of the settlement is provided to those severally liable nonsettling defendants.
COMMENTS
Illustration:
8. A sues B and C and settles with C for $25,000. The factfinder assigns50 percent responsibility to each of B and C and finds A suffered a total of $100,000 in damages, with $30,000 as economic damages and $70,000 as noneconomic damages. The judgment against B should be for $50,000, which is calculated by reducing the $30,000 in economic damages by the 50 percent credit for the settlement with C and by adding B's 50 percent several share of the $70,000 in noneconomic damages. Thus, B's credit against the economic damages portion of the judgment is:
B's Credit = Economic Damages x C's Comparative Share / Total Damages
NOTES
REPORTERS' NOTE
Comment b. Party. The term "party" is explicitly defined in Comment b to include only those who are parties to a lawsuit and bound by the judgment in it. Many comparative fault statutes specifying that the factfinder will apportion responsibility to all "parties" have been interpreted by the courts to mean not only parties to the lawsuit but others whose responsibility contributed to the plaintiff's injury. See, e.g., Fabre v. Marin, 623 So.2d 1182 (Fla.1993). Comment b is intended to avoid that interpretation, but the rule stated in this section permits the factfinder to apportion responsibility to nonparties whose tortious conduct was a cause of the plaintiff's injury.
Comment e. Persons to whom responsibility can be assigned. For an argument that both efficiency and fairness require that the defendant bear the burden of production regarding the responsibility of nonparties, see Entman, The Nonparty Tortfeasor, 23 Mem.St.U.L.Rev. 105, 111 (1992).
On the question of the sufficiency of the evidence about nonparties' responsibility and the court's role, see Snoozy v. United States Gypsum Co., 695 So.2d 767 (Fla.Ct.App.1997). On the burden of proof to demonstrate nonparties' negligence, see McGraw v. Sanders Company Plumbing & Heating, Inc., 667 P.2d 289 (Kan. 1983). On the competing interests of the plaintiff and defendant in presenting evidence about nonparties' comparative responsibility, see Hunter v. General Motors Corp., 1999 WL 12908 (Miss. Jan. 14, 1999).
Comment f. Persons immune from liability. For a court that recognized that a person who was "immune" should not be submitted to the factfinder for apportionment of responsibility because the person was not subject to tort liability rather than truly immune, see Richards v. Owens-Illinois, Inc., 928 P.2d 1181 (Cal.1997). For a discussion of the difficulties of making this distinction, see Cardi, Note, Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts, 82 Iowa L.Rev. 1293 (1997).
Comment g. Immune employers. In treating employers as immune parties for purposes of economic damages for which there is joint and several liability and as persons to whom responsibility can be assigned for purposes of noneconomic damages for which there is several liability, the rule stated in this Comment reflects the majority treatment in jurisdictions that impose pure joint and several liability for the economic damages and in jurisdictions that impose several liability for the noneconomic portion of the damages.
The majority of jurisdictions that retain some form of joint and several liability do not permit the factfinder to consider the employer's responsibility in causing the plaintiff's injury. Thus, in Varela v. American Petrofina Co., 658 S.W.2d 561, 562 (Tex.1983), the Texas Supreme Court held that regardless of any employer responsibility, "the employee shall recover the total amount of damages as found by the jury diminished only in proportion to the amount of negligence attributed to the employee." Pursuant to the Longshore and Harbor Workers' Compensation Act, the Supreme Court has held that the same rule should be employed. Edmonds v. Compagnie Generale Transatlantique, 99 S.Ct. 2753 (1979); see also Heckendorn v. Conrail, 465 A.2d 609 (Pa.1983); Rupe v. Durbin Durco, Inc., 557 S.W.2d 742 (Tenn.Ct.App.1976), overruled on other grounds, Crosslin v. Alsup, 594 S.W.2d 379 (Tenn. 1980).
In jurisdictions that have adopted a hybrid scheme of joint and several and several liability based on the type of damages suffered by the plaintiff, the majority of the courts that have addressed the question have made third-party defendants jointly and severally liable for all of the plaintiff's economic damages and permitted assignment of responsibility to the employer (and, thereby, a reduction in the third-party defendant's liability) for the noneconomic portion of the plaintiff's damages. See DaFonte v. Up-Right, Inc., 828 P.2d 140 (Cal.1992) (providing in addition for a credit for the third- party tortfeasor of the comparative share of economic damages attributable to the employer up to the amount of workers' compensation benefits received by the plaintiff, which thereby reduces the employer's subrogation claim); Allied- Signal, Inc. v. Fox, 623 So.2d 1180 (Fla.1993) (employer should be submitted to factfinder for allocation of responsibility so that third-party defendant's share of responsibility can be determined; prior cases had held that employer's responsibility could not be considered when defendant is jointly and severally liable (Clement v. Rousselle Corp., 372 So.2d 1156 (Fla.Dist.Ct.App. (1979), cert. denied, 388 So.2d 1191 (Fla.1980)); Rezucha v. Garlock Mechanical Packing Co., Inc., 606 N.Y.S.2d 969 (Sup.Ct.1993) (employer's culpability should be assessed so as to use its comparative share of responsibility to reduce third-party defendant's liability for noneconomic damages). But see Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638 (Ohio 1991) (immune employer may not be assigned responsibility on the rationale that statute governing comparative fault and providing for hybrid scheme of several and joint and several liability does not permit submission of nonparties).
Comment h. Rationale. When all defendants can only be held jointly and severally liable under the rule stated in s 28E, nonparties (other than settling tortfeasors) should not be submitted to the factfinder for allocation of a percentage of comparative responsibility. Joint and several liability allocates to defendants the burden of seeking out and joining other persons whose legally culpable conduct also caused the plaintiff's indivisible injury. On the other hand,when defendants may be held severally liable for a portion of damages that the plaintiff may recover, pursuant to s 28E, then nonparties should be submitted to the factfinder for an allocation of responsibility. This provision is required by the concept of several liability, which limits a party's liability to the percentage of comparative responsibility assigned to the party. See s 28B, Comment d.
As one commentator, remarking on the debate about whether nonparties should be submitted to the factfinder for assignment of responsibility, observed: "Fundamentally ... the nonparty issue has become inextricably bound to the question of joint and several liability. Those who believe defendants should be liable only for their proportionate share of fault insist that the negligence of absent tortfeasors must be subtracted." Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 267-268 (1990).
Refusing to permit consideration of nonparties could result in strategic behavior by plaintiffs that is inefficient. If nonparty responsibility is not considered, plaintiffs might choose to sue multiple defendants serially rather than in the same action, in the hope that with multiple opportunities to recover the overall result will be better than joining all potentially responsible parties in a single action. Hickman, Note, Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage of Fault in Comparative Negligence Jurisdictions that Have Abolished or Modified Joint and Several Liability, 48 Vand.L.Rev. 739, 750 (1995). Permitting defendants to join nonparties, even though they may not have a contribution claim, could ameliorate this concern, but some defendants may be content not to join other responsible persons for strategic reasons,especially in a modified comparative responsibility jurisdiction.
As one leading treatise explains: "[T]he failure to consider the negligence of all tortfeasors, whether parties or not, prejudices the joined defendants who are thus required to bear a greater portion of the plaintiff's loss than attributable to their fault." W. Page Keeton et al., Prosser and Keeton on Torts 475-76 (5th ed. 1984); see also Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind.L.Rev. 903, 903 (1984) ("To the extent that a given legal system ignores the fault of any tortfeasor, and shifts the financial burden from one culpable person to another, the fundamental principle of comparative fault is compromised.").
Refusing to submit nonparties to the factfinder in several liability jurisdictions also creates difficult problems of coordinating the outcome of multiple suits over the same indivisible injury. Consider a suit in which plaintiff sues D1. The jury finds plaintiff 25 percent responsible and finds the plaintiff suffered $100,000 in damages. Plaintiff thus recovers $75,000 from D1. Plaintiff then sues D2. Based on issue preclusion, plaintiff would not be entitled to a determination of damages in excess of $100,000. Yet the determination of plaintiff's comparative responsibility as 25 percent in the first suit would not be binding, as the issue in the second suit is different -- entailing a comparison of plaintiff's negligence with D2's legally culpable conduct. In the second suit, if the factfinder determines that D2 is comparatively responsible in some degree, plaintiff's recovery from D2 is problematical based on rules of issue preclusion and satisfaction of claim. See s 42 and Comment b. On the other hand, when nonparties are permitted to be submitted to the factfinder, the plaintiff's allocation of comparative responsibility in the first suit against D1 would be binding on the plaintiff in a second suit against D2. Plaintiff could not recover any more money by failing to join D2 in the first action.
Comment i. Joinder of nonparties by defendants. Because s 28E imposes joint and several liability for any economic damages, cases in which all defendants are only severally liable should be rare. Nevertheless, when the plaintiff'sonly injury is emotional distress or in which a plaintiff is suing for loss of consortium, all defendants will only be severally liable for the plaintiff's damages. When defendants are only severally liable, there is no contribution claim available between or among defendants. Many third-party joinder rules only permit the third-party plaintiff to join third-party defendants against whom the third-party plaintiff asserts a claim for contribution or indemnity rather than a claim that the third-party defendant is liable to the plaintiff. See Fed.R.Civ.P. 14(a); Target Stores v. Automated Maintenance Services, Inc., 492 N.W.2d 899 (N.D.1992) (holding that defendant was only severally liable for its negligence, therefore did not have a contribution claim against another person alleged to have contributed to the injury, and thus could not assert a claim against that other person). Having other persons whose acts or omissions are alleged to have contributed to the plaintiff's injuries participate as parties should facilitate discovery and assist the factfinder in providing a more accurate apportionment of responsibility among all of those who contributed to the plaintiff's injuries.
However, immune parties and settling tortfeasors are entitled not to be joined and not to be required to participate in the lawsuit. Persons for whom personal jurisdiction does not exist or whose joinder would destroy subject-matter jurisdiction cannot be joined. (Ordinarily, supplemental jurisdiction should be available to permit a defendant to join a nondiverse nonparty in a federal action based on diversity of citizenship.) Also, it may be pointless to join insolvent nonparties who would only default if served with original process. Thus, immune persons, settling tortfeasors, persons for whom personal jurisdiction is lacking, persons whose joinder would divest the court of subject-matter jurisdiction, and those persons who the parties agree should not be joined can nevertheless be submitted to the factfinder for an allocation of responsibility, when any defendant may be held severally liable based on the factfinder's apportionment of responsibility.
Comment k. Notice. Virtually all jurisdictions permit the joinder of a nonparty by a defendant who claims that the nonparty is jointly and severally liable for the harm for which the plaintiff is suing the defendant, provided there is a contribution or indemnity claim available to the defendant to assert against the nonparty. See, e.g., Fed.R.Civ.P. 14(a). Some jurisdictions are even more liberal, permitting the joinder of any nonparty that the defendant alleges is liable to the plaintiff for the injuries for which the plaintiff has sued. See, e.g., Pa.R.Civ.Pro. 2252(a); Fed.P.Civ.P. 14(c) (limited to admiralty and maritime claims). Employment of third-party joinder devices provide the notice contemplated by Comment g. Nevertheless, the third-party joinder device is unavailable when responsibility is to be imposed on a nonparty who cannot be joined because of immunity, lack of personal jurisdiction, or similar impediment. Also unavailable as a notice mechanism is pleading the responsibility of a nonparty as an affirmative defense in the answer, at least under the existing Federal Rules of Civil Procedure. See Amelio v. Yazoo Mfg. Co., 98 F.R.D. 691 (N.D.Ill.1983) (comparative responsibility of plaintiff is not an affirmative defense); Johnson v. Jack B. Kelley, Inc., 1988 U.S. Dist. LEXIS 13286 (N.D.Ill. Nov. 18, 1988). But cf. McKinnie v. Lundell Mfg. Co., Inc., 825 F.Supp. 834 (W.D.Tenn. 1993) (concluding that under Tennessee law comparative responsibility is available for strict products-liability claims and therefore declining to strike defendant's affirmative defense based on comparative responsibility).
In jurisdictions with statutes that permit the allocation of responsibility to nonparties (often as an ancillary provision to the adoption of several liability), provision is made for providing timely notice to the other parties in the event of an allegation of nonparty responsibility. See, e.g., Colo.Rev.Stat. s 13-21-111.5(3)(b) (1989):
Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstance, together with a brief statement of the basis for believing such nonparty to be at fault ....
See also Ariz.Rev.Stat.Ann. s 12-2506B (Supp.1994) ("Negligence or fault of a nonparty may be considered ... if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault."); Ind.Code s 34-4-33- 10(c) (1993) (defendant must plead as an affirmative defense that a nonparty is solely or partially responsible for claimant's damages); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 81 (Tenn. 1996) (defendants must plead as an affirmative defense the responsibility of a nonparty as a condition for submission of the nonparty to the factfinder for apportionment of responsibility); Henderson v. Tyrrell, 910 P.2d 522 (Wash.Ct.App.1996) (affirming trial court refusal to submit nonparty to factfinder for apportionment of responsibility because of failure of party claiming nonparty responsibility to plead matter as required by court rules). In the absence of a statutory provision, modification of the jurisdiction's rules of civil procedure to provide a mechanism for notice of an allegation that nonparties contributed to the injury provides another alternative. See Ariz.R.Civ.P. 26(b)(5) (providing defendants opportunity to give notice that a nonparty is comparatively responsible for plaintiff's injury). For a discussion of whether a defendant has provided notice in timely fashion, see Rosenblum v. Warner & Sons, Inc., 819 F.Supp. 767 (N.D.Ind.1993).
One court has found unconstitutional a comparative fault statute that permitted assigning responsibility to a nonparty because the statute contained no requirement of notice to the plaintiff that a defendant intended to have responsibility apportioned to a nonparty. See Newville v. State Dept. of Family Servs., 883 P.2d 793, 802 (Mont.1994).
Comment l. Persons who remain unidentified. Several liability requires that nonparties be submitted to the factfinder for assignment of responsibility. See Comment h. While trial of an absent person's responsibility is less than desirable, at least with discovery available, the parties to the suit can obtain relevant information about the nonparty's role in the plaintiff's injury. Moreover, the plaintiff can join the nonparty in the suit, which is likely to occur unless the nonparty is insolvent.
Logically, submitting unidentified nonparties to the factfinder might follow from this reasoning. However, the incentives to identify unknown persons whose actions are far-removed from the relevant events, but whose actions might be part of the causal chain that led to plaintiff's injuries or to manufacture the existence of an unidentified person who are implicated in the plaintiff's injury, along with the unavailability of discovery and the impossibility of joinder require that unidentified nonparties not be submitted to the factfinder.
This is an issue about which there is little clear precedent. A few courts have reached the conclusion that unidentified parties should not be submitted to the factfinder. See Cornell Harbison Excavating Inc. v. May, 546 N.E.2d 1186, 1187 (Ind.1989); Bass v. Williams, 839 S.W.2d 559, 564 (Ky.Ct.App.1992) (in course of deciding that nonparties could not be submitted to factfinder for apportionment of responsibility, court observed, "If [defendant's] argument is tenable, conceivably the courtroom could have many empty chairs belonging to tortfeasors unnamed, and possibly unknown until trial"); Ripka v. Mehus, 390N.W.2d 878 (Ct.App.Minn. 1986) (unconfirmed allegation by defendant of the existence of an unidentified person who contributed to the accident held insufficient to permit submitting the unidentified person to the factfinder for apportionment of responsibility); see also Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind.L.Rev. 903, 920 (1984); cf. Bencivenga v. J.J.A.M.M., Inc., 609 A.2d 1299, 1304-05 (N.J.Super.App.Div.1992) (unidentified nonparty likely known by defendant should not be submitted to factfinder for apportionment of responsibility); Donner v. Kearse, 662 A.2d 1269 (Conn. 1995) (interpreting state statute to bar apportionment of responsibility to any nonparty; statute permitted defendants to join any nonparties that were alleged to have contributed to plaintiff's injury); Field v. Boyer Co., 952 P.2d 1078 (Utah 1998) (unidentified nonparty may not be apportioned comparative responsibility; responsibility may only be apportioned to parties and immune nonparties; since nonparty was unknown and could therefore not be joined as a party, no comparative responsibility could be assigned to that unidentified nonparty). The procedural rules in one jurisdiction require identification of any nonparty that a defendant alleges should be submitted to the jury for an assignment of a percentage of comparative responsibility. Ariz.R.Civ.P. 26(b)(5) (party alleging nonparty was partially responsible "shall provide the identity, location, and the facts supporting the claimed liability of such nonparty").
The courts that have reached a contrary conclusion have been quite conclusory and have failed to address the differences between known nonparties and unidentified nonparties. See McKillip v. Smitty's Super Valu, Inc., 945 P.2d 372 (Ariz.Ct.App.1997) (permitting allocation of comparative responsibility to unknown grocery store shopper who dropped waxed-tissue paper on floor of store, observing that the plaintiffs "have not attacked the evidence concerning the existence or identity of a nonparty at fault as too speculative in these or other respects to support an apportionment of fault"); Jensen v. Shank, 585 P.2d 1276 (Idaho 1978) (60% of responsibility assigned to an unidentified nonparty, but propriety of doing so not raised on appeal); Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712 (La.1994) (in course of deciding that intentional and negligent tortfeasors could be apportioned responsibility, court suggested that unidentified intentional tortfeasor may, in some cases, be submitted to factfinder for apportionment of responsibility); Bartlett v. New Mexico Welding Supply,Inc., 646 P.2d 579, 585 (N.M.1982); Stocklin v. Gibson, 1993 Tenn.App. LEXIS 761 (Tenn.Ct.App. Dec. 10, 1993) (addressing the question of whether an unidentified nonparty was negligent so as to have responsibility apportioned to it, without addressing the propriety of submission of unidentified nonparties for assignment of responsibility); Jacobs v. Milwaukee & Suburban Transport Corp., 165 N.W.2d 162 (Wis.1969) (issue of apportionment of responsibility to unidentified nonparty not addressed); see also Wilkins, Indiana Comparative Fault Act at First (Lingering) Glance, 17 Ind.L.Rev. 687, 739 (1984); cf. Brown v. Missouri Highway and Transportation Com'n, 805 S.W.2d 274, 278 (Mo.Ct.App.1991) (suggesting in dicta that responsibility could be apportioned to an unidentified tortfeasor in responding to the state's argument that it could be not be held liable for highway conditions if the direct cause of the accident was another tortfeasor).
Comment n. Form of judgment. If the applicable law imposes joint and several liability on defendants for the economic portion of plaintiff's damages, the allocation of responsibility to any other nonparties, immune persons, or insolvent parties is irrelevant to the liability of the defendant with regard to the joint and several portion of the damages. Thus, in Illustration 2, the jointly and severally liable defendants are liable for the full amount of plaintiff's recoverable economic damages.
Comment o. Partial settlements. Illustration 8 and its methodology for determining the appropriate credit afforded to a nonsettling defendant is similar to and results in the same outcome as that employed by the court in In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 849-50 (2d Cir.1992) (applying New York law which provides for a credit of the larger of the amount of the settlement or the settling tortfeasor's comparative share); see also Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249, 253-54 (Fla.1995) (apportioning settlement amount between economic and noneconomic damages based on the jury's award of each element of damages and rejecting the apportionment contained in the settlement agreement because of the lack of adverse interests between plaintiff and settling tortfeasor).
FNa. As of the date of publication, this Draft has not been considered by the members of The American Law Institute and does not represent the position of the Institute on any of the issues with which it deals. The action, if any, taken by the members with respect to this Draft may be ascertained by consulting the Annual Proceedings of the Institute, which are published following each Annual Meeting.
REST 3d TORTS-AL s 29E
1999 WL 591496
REST 3d TORTS-AL s 29E
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