- Who Are Joint Tortfeasors, and Why an Understanding of the Complexities of That Question Is Now Essential
- August 20, 2013
- Law Firm: Feldstein Grinberg Lang McKee P.C. - Pittsburgh Office
Consider the following fact scenarios:
1. A man is killed when his vehicle is struck head-on by a drunk driver. The drunk driver has
followed a sign which has been improperly placed by a municipality, and which arguably
directed him into the wrong traffic lane; and
2. A person suffers relatively minor injuries in a rear-end motor vehicle accident, is transported
to the hospital and is negligently given an overdose of a powerful narcotic pain medication,
which ultimately kills him.
These illustrations highlight the necessity of fully comprehending the often misunderstood notion of whether separate individuals or entities are actually joint tortfeasors. The first illustration, the wrong-way drunk driver, is the case of Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992).
In Crowell, the Supreme Court stresses that the test regarding establishing the status of two parties as joint tortfeasors is, in part, whether causation is concurrent. The Court concluded in Crowell that the death of the Plaintiff's Decedent was, indeed, the result of the concurrent negligence of the City of Philadelphia and the intoxicated driver of the other vehicle. Therefore, both the City and Crowell were joint tortfeasors.
Of course, the Supreme Court's analysis in Crowell assumes even greater significance in light of amendments to the Joint and Several Liability Statute. Previously, the allocation of even minimal negligence to the City of Philadelphia would have assured a full recovery for the Plaintiff's Estate; now, however, full recovery in a similar case is unlikely unless the Defendant-Driver's policy limits are substantial. Indeed, in the underlying action in Crowell, the jury found the Defendant-Driver to be 80% negligent, and the City of Philadelphia 20% responsible.
The second illustration, that of the subsequent negligence of a health care provider after an initial motor vehicle -induced injury, requires an analysis related to that of supervening, intervening cause. For many years, the approach of Plaintiff's attorneys to a situation similar to that outlined has been consistent with the reasoning of the Superior Court in the case of Lebesco v. Southeastern Pennsylvania Transportation Authority.
In Lebesco, 251 Pa. Super, 415, 380 A.2d 848 (1977) Judge Hoffman, writing for the Court, succinctly summarized what has been the settled law in Pennsylvania regarding the subsequent malpractice of a physician after a negligently-inflicted injury or condition:
It is well-established in Pennsylvania that a tort-feasor whose negligence is the legal cause for injury to a plaintiff is also liable for additional injury caused by the unskillful treatment that the plaintiff receives from a physician whom the plaintiff, exercising ordinary care, has selected. Nathan v. McGinley, 342 Pa. 12, 19 A.2d 917 (1941); Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); Restatement (Second) of Torts §457 (1965). 380 A.2d at 852 (Emphasis provided).
However, if the hypothetical Defendant-Driver is responsible to remunerate the Plaintiff for the full panoply of the Plaintiff's injuries, despite subsequent medical negligence, are the Defendant-Driver and the later-malpracticing physician joint tortfeasors? This issue confronted the Superior Court in Lasprogata v. Qualls, 397 A.2d 803 (1979). There, the Court commented:
Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. Bandle v. Vernick, 66 Pa. D.&C. 2d 457 (1974); Gertz v. Campbell, 4 Ill. App. 3d 806, 282 N.E. 2d 28, aff'd in part and rev'd in part on other grounds, 55 Ill. 2d 84, 302 N.E. 2d 40 (1973); Annot. 8 A.L.R. 3d 639 (1966). The acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other's acts, and each breaching a different duty owed to the injured plaintiff. While they are two active tortfeasors, they are not actually acting "jointly." Embrey v. Borough of West Mifflin et al., 257 Pa. Super. 168, 390 A.2d 765 (1978). To the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly. This apportionment does not necessarily follow the statutory rules for contribution among tortfeasors applicable in situations where such tortfeasors are characterized as joint. Instead, where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable.
Read with the assumption of consistency, Lebesco and Lasprogata result in this formulation: While the original tortfeasor in the negligent motor vehicle operator/negligent physician scenario is typically responsible for the damages associated with the later-occurring malpractice, if both the driver and physician are parties in one suit, and the injuries of the driver and physician are capable of "separation", damages will be "apportioned" between the driver and physician. This means that the total amount of damages must be ascertained by the jury, and thereafter apportioned based not upon a negligence percentage, but rather with reference to the damages attributable to each party based upon the specific injuries associated with their acts.
Unlike the analysis of the Supreme Court in Crowell, where the actions of both the driver and the City of Philadelphia were simultaneous in causing the harm, Lasprogata articulates the method by which damages are to be allocated between independent tortfeasors, rather than the allocation of negligence between concurrent tortfeasors. Clearly, the distinction between allocation of negligence and allocation of damages is crucial under the new Act.
In Crowell, the jury in the underlying action, not unexpectedly, found the drunk driver to be significantly more negligent than the City of Philadelphia. In the driver/physician fact pattern, one could easily anticipate a jury allocating a significant portion of negligence to the driver, who initially caused the need for the Plaintiffs' medical care, if negligence is the issue. Of course, the impact of the new joint and several liability law if negligence is allocated could conceivably significantly negatively affect the Plaintiff's recovery.
Clearly, one approach to avoid what some may believe to be the particularly onerous affect upon Plaintiffs of the "Fair Share Act" is to dispute the status of multiple actors as joint tortfeasors. The Pennsylvania Comparative Negligence Statute defines joint tortfeasors as, "two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." This legislative definition provides little assistance in evaluating the status of multiple parties as joint tortfeasors, with the exception of the words, "liable in tort for the same injury."
In fact, the clear inability to apportion components of an injury is one of the factors which Pennsylvania courts have referenced as critical to the determination of a cognizable joint tortfeasor relationship between parties. In Voyles v. Corwin, 441 A.2d 381 (Pa. Super. 1982), physicians alleged to have committed malpractice in treating an individual injured in a motor vehicle accident sought to join the motorist who allegedly caused injuries to the Plaintiff as a joint tortfeasor. The Superior Court of Pennsylvania set forth the following factors for courts to consider in determining whether entities or individuals are joint tortfeasors:
"[T]he identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential, responsibility of the defendants for the same injuries as distinguished from damnum." Id. at 383.
The divisibility of the injury itself was critical to the analysis of the Voyles Court, and the Court held that if the motor vehicle operator and the physicians, "are liable for distinct injuries to Voyles, they are not joint tortfeasors."
The Restatement (Second) of Torts, §433A, entitled Apportionment of Harm to Causes, which has been cited with approval by the Superior Court of Pennsylvania in Corbett v. Weisband, 380 Pa. Super. 292 (1988), provides a similar formulation of when apportionment, and not division of damages based upon percentage of fault, is appropriate:
(1) Damages for harm are to be apportioned among two or more causes
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of
each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more
The Restatement recognizes that apportionment can be appropriate where a, "reasonable basis" exists for ascertaining the "contribution" of causes to a harm, even if the components of the harm cannot be allocated among the parties.
Comment (i) to subsection (2) clarifies:
Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division. Death is that kind of harm, since it is impossible, except upon a purely arbitrary basis for the purpose of accomplishing the result, to say that one man has caused half of it and another the rest. The same is true of a broken leg, or any single wound, or the destruction of a house by fire, or the sinking of a barge. Such harms can be apportioned, if it (sic) all, only upon the basis of a prior reduction in value of what has been destroyed. By far the greater number of personal injuries, and of harms to tangible property, are thus normally single and indivisible. Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.
Corbett v. Weisband provides a thorough review of the Pennsylvania appellate court decisions regarding apportionment through the date of the decision in 1988. After this thorough review, the Corbett Court outlines the process to be employed in determining whether apportionment of damages is justifiable. Interestingly, in Corbett, the Defendant-Physicians, in an effort to avoid joint tortfeasor liability, posited that the tests for apportionment were satisfied. The Court held that the Defendant seeking apportionment, " should be entitled to present any evidence, if available, from which a jury could reasonably and rationally apportion the damages sustained between the various tortfeasors." The trial court is then to make the "initial determination as to whether apportionment is appropriate" and, after satisfying itself that sufficient evidence has been presented to support apportionment, "the actual apportionment is to be left to the jury...." Corbett, 555 A.2d at 1079.
Prior to the "Fair Share Act", Defendants often attempted to contest their status as joint tortfeasors with other parties, and embraced allocation as viable, in an effort to limit their damage exposure. With the new Act, however, Plaintiffs may wish to consider whether allocation is a possibility in certain cases, since ultimate recovery of damages may actually be enhanced.