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Should Vehicle Manufacturers Be Entitled to Apportionment of Liability?

Friday, September 22, 2017   (0 Comments)
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The Legal Intelligencer

 by Larry E. Coben


Should Vehicle Manufacturers Be Entitled to Apportionment of Liability?


Automobile manufacturers are legally obligated to design, build and sell vehicles that are crashworthy, as in Gaudio v. Ford Motor, 926 A. 2d 524 (Pa. Super. 2009), appeal den., 989 A. 2d 917 (2010). Crashworthiness is the designed protection a vehicle affords occupants against injury or death in a collision, as in Harsh v. Petroll, 840 A.2d 404, 417-418 (Pa. Commwlth 2003). If a motorist or passenger is involved in a collision and she suffers enhanced injuries, the vehicle manufacturer will be liable for those injuries—if the producing harm was caused by a defective design, as in Hutchinson v. Penske Truck Leasing, 876 A. 2d 978 (Pa. Super. 2005), aff'd. 592 Pa. 38 (2007). Before the 2011 amendments to the Pennsylvania Comparative Negligence Act, the tortfeasor causing the accident and the tortfeasor-manufacturer whose product enhanced the injuries were jointly and severally liable. Thus, if a jury found the offending driver 80 percent liable and the vehicle's faulty design 20 percent liable (for the purpose of perfecting a claim for contribution) for the enhanced injury, the victim could recover the full amount of the verdict from either party. However, in 2011, the legislature altered the common law and passed 42 Pa. C. S. 7102 (a.1) and (a.2) to establish several liability based upon jury apportionment of each defendant's liability, 42 Pa. C. S. 7102 (a.3) allows for joint and several status of a defendant found "not less than 60 percent" liable. The question that has not been addressed in connection with the doctrine of crashworthiness is whether apportionment of liability is appropriate when the plaintiff's harm is divisible or indivisible? As set forth below, the most logical answer is: no.

The Divisible Injury Issue
The underlying predicate for the duty to build and sell crashworthy vehicles is the responsibility to protect motorists. If the manufacturer can escape liability by apportioning a large percentage of liability to the motorist causing the collision, then that result will virtually eradicate the legal duty imposed upon the manufacturer. Why build a crashworthy vehicle if the manufacturer can simply blame the tortfeasor who caused the collision? Further, if the damages are divisible between the collision-causing tortfeasor and the noncrashworthy manufacturer, why is apportionment warranted? The Comparative Negligence Act requires apportionment when there is a factual predicate showing that more than one tortfeasor was a proximate cause of the total damages suffered. When, however, the damages are divisible because of successive rather than concurrent fault, the need to apportion liability disappears.

The Indivisible Injury Issue
If an enhanced injury is nondivisible (such as death), then how can a jury apportion liability? Pennsylvania courts have cited Mitchell v. Volkswagen AG, 669 F.2d 1199 (8th Cir. 1982), which held: "If the manufacturer's negligence is found to be a substantial factor in causing an indivisible injury such as paraplegia, death, etc., then absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tortfeasors."

The same conclusion was reached by the Florida appellate court in Gross v. Lyons, 763 So. 2d 276 (Fla. 2000)—despite the existence of a statutory requirement to apportion liability: "Application of the indivisible injury rule is not inconsistent with Florida statutory law concerning the apportionment of damages amongst tortfeasors based on fault ... Florida Statutes (1999), provides that trial courts 'shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.'" In Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), this court observed that the legislature's intention in enacting Section 768.81 was to "replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that the defendant contributed to the accident." The indivisible injury rule and the apportionment of damages based on fault are not mutually exclusive. Here, for example, the petitioner was the sole legal cause for the accident; therefore, if that accident was a substantial factor in causing the respondent to suffer an indivisible injury, then petitioner would be liable for the entire damage. Accordingly, we hereby adopt into Florida law the indivisible injury rule to be applied when a jury cannot apportion injury, as quoted from the Arizona Supreme Court: "When the tortious conduct of more than one defendant contributes to one indivisible injury, the entire amount of damage resulting from all contributing causes is the total amount of damages recoverable by the plaintiff."

Requiring a car company to be fully liable for an enhanced indivisible injury is completely consistent with the Pennsylvania Supreme Court's analysis in Harsh v. Petrol, 887 A.2d at 217. In Harsh, the court agreed that "the normal rules of concurrent causation and joint and several liability operative in product liability cases should also pertain in the crashworthiness context. As the appellees have developed, common law joint and several liability evolved on the theory that, as between an injured, innocent plaintiff and defendants whose breach of some duty is proximately related to the injury, it is preferable to allocate the risk of a default in the payment of due compensation to the defendants. Further, as noted by the trial court, Pennsylvania tort law also maintains that multiple substantial factors may cooperate to produce an injury.

We believe that this principle of concurrent causation should extend to cases involving enhanced injuries. While in fashioning a just and coherent crashworthiness jurisprudence it has been necessary to rely on the concept of enhancement to delineate the basis for and extent of a manufacturer's responsibility to answer in damages for an injury ... the interests of justice do not require that the same line of demarcation operate automatically to relieve from liability a negligent tortfeasor whose concurrent conduct also served as a substantial factor in producing the additional harm."

Undoubtedly, the auto industry will argue that the amendments to Pennsylvania's Comparative Negligence Act, allowing for apportionment between tortfeasors has caused the disintegration of joint and several liability and it precludes joint liability regardless of proof the injury is divisible or indivisible. Yet, that argument makes little sense for these reasons. A divisible injury doesn't require apportionment. If, for example, a car is involved in a frontal collision but the air bag failed to deploy and that caused the motorist to impact her head on the steering wheel and she suffered brain damage—that would not have resulted if the airbag deployed—the damage is divisible and apportionment is illogical. The manufacturer will argue that apportionment is required since the collision would not have occurred but for the driver's negligence. But, that argument eviscerates the duty to market a crashworthy vehicle. On the other hand, if the injury or death is indivisible, then apportionment would seem inappropriate because the act did not mention the elimination of the "principle of recovery for an indivisible injury caused by multiple tortfeasors [which] lies at the heart of the common law of tort." The focus of liability in an enhanced injury case is proof of responsibility for the resulting damages. A vehicle manufacturer is only liable for the enhanced injury or damages.

A reading of the Comparative Negligence Act confirms that crashworthiness cases ordinarily should be exempt from apportionment. The operative language of the act provides that "where liability is attributed to 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 that defendant's liability to the amount of liability attributed to all defendants." Thus, the apportionment statute allows for several liability vis-à-vis the total damage award for the harm caused. It stands to reason then that if the court finds that the damage award is divisible, apportionment is not required; and, likewise, if the damages are indivisible—and therefore not susceptible of apportionment—then this section of the act cannot be applicable. Under either circumstance, the trial court should consider and decide as a matter of law whether or not a plaintiff's harm is divisible or indivisible and, under the appropriate circumstances refuse to allow a jury to consider apportionment.

While Pennsylvania has struggled to fashion a "just and coherent crashworthiness jurisprudence," and the legislature has contributed to the evolution of legal responsibility of multiple tortfeasors causing harm, logic dictates that in most crashworthiness cases the Comparative Negligence Act should not apply. s.

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