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Recent decision on application of Proposition 51 apportionment of
damages to “primary” versus “secondary” tortfeasors
Bayer-Bel v. Litovsky (January 29, 2008) |
Memo to: Attorneys
From: Renee A. Richards
Date: January 29, 2008
RE: Recent decision on application of Proposition 51 apportionment
of damages to “primary” versus “secondary” tortfeasors
Division One of the Second Appellate District recently held that the
allocation of noneconomic damages in direct proportion to fault
pursuant to Proposition 51 is available to primary but not secondary
tortfeasors. In Bayer-Bel v. Litovsky (Jan. 25, 2008) 07
C.D.O.S. 1249, the appellate court reversed the judgment of the
trial court and held that in a case involving questions of
comparative fault (multiple tortfeasors as well as a plaintiff who
was partially at fault herself) the primary—but not the secondary—tortfeasors
may avail themselves of the damages allocations provided for by
Proposition 51 and should not be held jointly and severally liable
for the entire judgment.
The underlying action involved a car accident. The driver of the
car, Litovsky, was a teenager who did not have a license; she was
asked to drive the car by a friend who was in the car with her but
was intoxicated and did not want to drive. The car belonged to a
third friend who loaned the car to them because he was also
intoxicated and did not want to drive. Predictably, Litovsky ended
up driving on the wrong side of the road and crashing into Bayer-Bel
and injuring her. Bayer-Bel sued all three teenagers—Litovsky, the
friend who asked her to drive and the owner of the car who entrusted
the vehicle to the other two defendants—and tried the case to a
jury. The court entered partial directed verdicts against Litovsky
on the issues of negligence and causation, against the intoxicated
passenger for negligent entrustment and against the owner of the
vehicle for negligent entrustment or as an owner (the record was
apparently unclear). The question of relative fault was then given
to the jury.
The jury found all three defendants liable to the plaintiff, but
also found the plaintiff was 60% liable because she was not wearing
a seat belt. Of the remaining 40%, the jury found Litovsky 40%
liable, the owner of the car 20% liable and the intoxicated
passenger 40% liable. The trial court, however, declined to apply
Proposition 51, on the theory that all three defendants’ liability
was based on a type of vicarious liability rather than comparative
fault. It then entered it a judgment making all three defendants
jointly and severally liable for the entire amount of the judgment.
Litovsky appealed.
In reversing, the appellate court agreed with Litovsky who argued
that her liability for plaintiff’s damages should be several, not
joint, and limited to her proportional share of fault under
Proposition 51. The court found that she and her intoxicated
passenger were primarily—not secondarily or vicariously—liable. The
court discussed the history of Proposition 51 (Civil Code section
1431.2(a)) and pointed out that the exception to the rule of
apportionment the trial court used in this case (vicarious liability
of some sort) did not apply. Apportionment based on comparative
fault under Proposition 51 is not available to defendants who are
liable “only by reason of a derivative nondelegable duty arising
from [the] status as an employer, or landlord, or vehicle owner, or
co-conspirator, or from [a] role in the chain of distribution of a
single product in a products liability action” because those
defendants have liability that is “secondary” (or vicarious) to that
of the actor. (Cites omitted, emphasis in original). Here, both
Litovsky and the passenger who gave her the keys to drive were
“independently acting tortfeasors” who had some liability to
compare. Therefore, the appellate court found, Proposition 51 should
have been applied in this case, and “Litovsky’s liability for Bayer-Bel’s
noneconomic damages is several, not joint, and that she is liable
only for the amount of noneconomic damages allocated to her by the
jury.”
This decision makes clear that there are only a handful of
exceptions to the application of Proposition 51 and that in the
absence of one of these exceptions the allocation of damages based
on comparative fault should be made. This decision contains a nice
summary of decisions that describe those exceptions and is worth
reading if you have a case that involves vicarious or secondary
liability and may preclude the application of Proposition 51.
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