- Proposition 51 Meets Intentional Tortfeasors: California Court Holds That an Intentional Tortfeasor is not Entitled to Apportionment of Noneconomic Damages Where the Negligence of Others also Contributed to the Injury
- September 19, 2006
- Law Firm: Clausen Miller PC - Chicago Office
In a case of first impression, a California appellate court has held that an intentional tortfeasor was liable for all of an injured plaintiff’s non-economic damages and was therefore not entitled to a reduction by apportionment of those damages under Proposition 51, a California statute which provides for the apportionment of non-economic damages. Thomas v. Duggins Construction Co., Inc., 44 Cal. Rptr. 3d 66 (2006).
On February 21, 1999 an electrical contractor, Greg Bentley Electric (Bentley) purchased a used scissor lift to use in its electrical business from Duggins Construction Co., Inc. (Duggins). Two days later, the plaintiffs, Bentley employees, were seriously injured when the lift’s platform became uncentered while being raised, causing the lift to tip over and the platform on which they were standing to fall to the concrete floor 20 to 25 feet below.
Plaintiffs sued Duggins for products liability and negligence. They also sued Duggins employees James Duggins, Russel Roben, Scott Dhalliwal and Doug Calhoun for fraud, deceit, willful misconduct and punitive damages. At trial, a jury found in favor of plaintiffs on their claims for breach of implied warranty, negligence and intentional misrepresentation. Specifically, it found that defendants Roben and Dhalliwal were employees and agents of Duggins acting within the scope of their employment or agency in selling the lift to Bentley and that they were negligent in maintaining or repairing the lift and in failing to advise Bentley of problems with it. The jury further found that Dhalliwal intentionally made false representations or failed to disclose important facts about the lift to Bentley and Bentley relied on those misrepresentations, which contributed to plaintiffs’ injuries. The jury awarded $1,156,000 in economic damages and $740,000 in non-economic damages to plaintiffs, allocating 40% of fault each to Duggins and Bentley, and 10% each to Duggins employees Roben and Dhalliwal.
Duggins, which was vicariously liable for the intentional conduct of its employees through the doctrine of respondeat superior, moved for a new trial on the grounds that the plaintiffs’ damages were subject to apportionment under Proposition 51, which provides in pertinent part:
In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against the defendant for that amount. California Civil Code § 1431.2(a).
The trial court denied the motion and ruled that Proposition 51 does not apply to a fraud cause of action because fraud is an intentional act.
In affirming the trial court’s decision that Proposition 51 does not apply to an intentional tort, the appellate court reasoned that the same policy considerations of deterrence and punishment that bar reduction of an intentional tortfeasor’s liability to reflect a plaintiff’s contributory negligence also preclude an intentional tortfeasor from apportioning or reducing its liability to a plaintiff where the negligence of one or more third party tortfeasors contributed to the injuries.
The appellate court relied primarily upon two cases in reaching its decision. First, in Weidenfeller v. Star and Garter, 1 Cal.App.4th 1 (1991), the court held that a negligent tortfeasor’s liability for the plaintiff’s noneconomic damages was subject to the limitation of Proposition 51 despite the fact that the plaintiff’s injuries were caused in part by a third party’s intentional tort. In Weidenfeller, the plaintiff argued that Proposition 51 was inapplicable and the negligent tortfeasor’s liability should not be reduced because at least one tortfeasor was found to have committed an intentional tort. The court rejected plaintiff’s attempt to transfer the intentional actor’s responsibility to the negligent tortfeasor, noting that penalizing the negligent tortfeasor would frustrate the purpose of the statute and defy “the commonsense notion that a more culpable party should bear the financial burden caused by its intentional act.”
And second, in Heiner v. Kmart Corp, 84 Cal.App.4th 335 (2000), the court stated (in dicta) that an intentional tortfeasor’s liability is not subject to apportionment where the plaintiff’s injuries resulted in part from the plaintiff’s own contributory negligence. The Heiner court stated “…it would likewise appear contrary to sound policy to reduce a plaintiff’s damages under comparative fault for his negligence in encountering the defendant’s deliberately inflicted harm.” Id. at 349.
Thus, according to the appellate court, even though Duggins’ liability for negligence would have otherwise entitled it a reduction, its vicarious liability for the intentional torts of one of its employees is not subject to reduction under Proposition 51 based on the jury’s finding that Bentley’s negligence also contributed to the injuries:
Here, the jury found that the only party whose liability for the plaintiffs’ injuries was based on intentional tort rather than negligence was [Duggins’ employee] Dhalliwal. By virtue of the jury’s finding and the parties’ stipulation that Dhalliwal was acting at all relevant times within the course and scope of his agency or employment for Duggins, Duggins was liable for that intentionally tortious conduct. Applying the foregoing principles, Duggins’ vicarious liability for the intentional torts of one of its employees is not subject to reduction under Proposition 51 based on the jury’s finding that Bentley’s negligence also contributed to plaintiffs’ injuries. Thus, although Duggins’ liability in negligence would have otherwise entitled it to an apportionment of the plaintiffs’ noneconomic damages, its vicarious liability for intentional tort was not subject to such a reduction even though the jury concluded that Dhalliwal’s intentional misconduct constituted only a 10 percent contributing factor to the plaintiffs’ injuries. (citations omitted).
This decision comports with California’s public policy of prohibiting an intentional actor from relying on someone else’s negligence to shift responsibility for his or her own conduct. The fact that the employee was acting within the course and scope of his employment when he committed the intentional tort meant that the employer remained “on the hook” for the full amount of non-economic damages and was not entitled to apportionment under Proposition 51.