Figuring out who’s liable under law
By Ken Gorman
Lombardo and Gilles
In most lawsuits involving claims for property damage or
personal injury where liability is contested, there is a potential
issue as to who is responsible for the injuries.
Figuring out who’s liable under law
By Ken Gorman
Lombardo and Gilles
In most lawsuits involving claims for property damage or personal injury where liability is contested, there is a potential issue as to who is responsible for the injuries.
The old law was that regardless of the conduct of the defendants, if the plaintiff’s negligence contributed at all (even just 1 percent) to the plaintiff’s injuries, then the plaintiff received nothing.
The law then changed to state that if the plaintiff was more than 50 percent responsible for the plaintiff’s injuries, then the plaintiff received nothing.
While at first glance that may seem fair, it frequently resulted in people with limited financial means being unable to afford medical care and be compensated for wage loss if a jury found that they were 51 percent responsible for their own injuries.
In response, the California Supreme Court actually declared that instead of the 50 percent all or nothing rule, California instead would follow “pure” comparative fault and joint and several liability.
“Pure” comparative fault means that the jury determines the percentage of fault for everyone, and the injured plaintiff recovers accordingly. It does not eliminate the plaintiff’s responsibility for his or her own negligence; it just reduces their recovery by that percentage of fault.
For example, in a case with a three-car accident, if the jury decided the plaintiff had $100,000 damage, defendant A was 50 percent responsible, defendant B was 30 percent responsible, and plaintiff was 20 percent at fault, the plaintiff would only recovery $80,000. However, if the plaintiff was 80 percent responsible, then the plaintiff would only recover $20,000.
“Joint and several” liability is more complex. This principal states that all defendants are fully responsible to pay all of the plaintiff’s damages, except those offset by plaintiff’s comparative fault. This arose because some defendants did not have the financial ability to pay for their share of damages (such as lack of adequate insurance), while others had more than they needed.
As a result, some defendants have to pay more than their proportionate liability if another defendant(s) cannot pay their share.
For example, in the three-car accident case above, if the defendant who was 50 percent at fault had no insurance or was bankrupt, the other defendant, who was only 30 percent responsible, would have to pay all of the $80,000 in damages.
While that result is somewhat unfair, state policy is that it would be more unfair for the injured plaintiff not to get enough money to cover his or her own damages than to disproportionately burden a defendant. This sometimes resulted in extreme cases, where a defendant who was 1 percent responsible (but wealthy) had to pay 100 percent of the plaintiff’s damages.
To balance the equities between these factors, California voters passed Proposition 51 about 15 years ago. That law stated that joint and several liability remains the law for plaintiff’s “special damages” (medical bills and wage loss), but for “general damages” (pain and suffering) each defendant would only be responsible for their share of fault.
This protected plaintiffs from going into debt when somebody else’s negligence caused them to incur medical bills and wage loss, but could decrease what they could recover for pain and suffering.
Using another three-car accident example, let’s assume that a jury assessed plaintiff’s damages at $20,000 in medical bills, $30,000 in wage loss and $50,000 in pain and suffering. The jury assessed liability at 60 percent for defendant A, 40 percent for defendant B and 0 percent for plaintiff. If defendant B had no money, then defendant A would have to pay (i) all of the medical and wage loss ($50,000), but (ii) only 60 percent of the $50,000 in pain and suffering (or $30,000). Let’s change the facts to assume that the jury found defendant A liable 60 percent, defendant B liable 20 percent, and plaintiff 20 percent at fault. If defendant B was insolvent, then defendant A would be liable for 80 percent of plaintiff’s medical bills and wage loss (its 60 percent and defendant B’s 20 percent) and still for 60 percent for plaintiff’s pain and suffering. This rule applies even if plaintiff does not have enough money to pay their own bills.
There are a few exceptions to joint and several liability, the most common being punitive damages and “non-delegable” duties.
Punitive damages are solely the responsibility of the defendant whose conduct warranted them. Using the three-car accident as an example, if one of the defendants deliberately crashed into the plaintiff, and in addition to the $100,000 in damages, the jury awarded the plaintiff $20,000 in punitive damages against that defendant, the other defendant could not be required to pay any amount of that.
The policy here is that it would be wrong to punish a defendant whose conduct was merely negligent for the deliberate misconduct of another. (Punitive damages are also not covered by insurance.)
Certain duties are “non-delegable,” meaning that liability for them cannot be put off to another person or entity.
When a duty is “non-delegable,” Proposition 51 is inapplicable.
Common examples of non-delegable duties are the obligations of both landlords and tenants to keep the premises safe for customers, and the obligation of “common carriers” to provide safe transit, including taxis, buses, trains, airplanes and even elevators.
The non-delegable duty for common carriers applies only to their customers, not third parties.
Thus, payments would differ in the three-car accident case if plaintiff was a passenger in a taxi, or if plaintiff’s car was hit by a taxi.
If plaintiff was a passenger in a taxi that was in a two-car accident, and the jury found the taxi driver 50 percent at fault and the other driver 50 percent at fault, if the other driver was insolvent, then the taxi company would be liable for all plaintiff’s medical bills, lost wages and all of his/her pain or suffering.
The landlord-tenant scenario presents the other side of the spectrum.
Suppose a building owner leases space to a grocery store and the store’s cleaning crew accidentally left a puddle of clear soap on the tile floor, causing a patron to be injured in a slip-and-fall.
Typically leases require the tenant to indemnify the landlord, meaning the tenants pays for any damages assessed against the landlord as a result of the tenant’s negligence.
However, while the law does not prohibit those provisions, it holds that the landlord and the tenant have a non-delegable duty to provide safe premises to the patrons, and the patrons’ right to safe premises trumps any agreement between the landlord and the tenant.
Thus, if the tenant was insolvent, the landlord could not refuse to pay all of the plaintiff’s damages because of the indemnity provisions in the lease.
In conclusion, California law varies significantly in apportioning liability among different parties depending upon the facts and circumstances of the case.
A person needs to clearly understand these differences if they have been in an accident or if someone is trying to hold the person liable for their injuries.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas. Ken Gorman is an attorney with Lombardo & Gilles, LLP. You may contact the author at (888) 757-2444 or ke*@lo****.com. Mail your questions to Ken Gorman, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister, CA 95023.
