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  Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

April 2011     Vol. 34, No. 2


MCLE Article: Sharing the Blame

Noneconimic damages can be apportioned to a party even if it is absent from the suit

By Michael M. Walsh

Michael M. Walsh is an associate at Sedgwick, Detert, Moran & Arnold in Los Angeles, where he focuses on appellate law and complex litigation, including products liability and insurance.

By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.

Even though California voters enacted Proposition 51 more than 20 years ago, Civil Code Section 1431.2--codified as part of the initiative known as the Fair Responsibility Act of 1986--continues to create controversy. Parties seek to avoid the potentially harsh consequences of the section, which mandates the several apportionment of general damages between joint tortfeasors. Both plaintiffs and defendants are particularly concerned about entities involved in the dispute but not party to the litigation or otherwise immune from suit.

Proposition 51 governs the apportionment of noneconomic damages in most tort cases.1 It amended the pre-existing common law rule that all tortfeasors were jointly and severally liable to the plaintiff for all damages resulting from an indivisible injury proximately caused by the tortfeasors collectively.2 The common law rule had come under increasing criticism for allowing substantial verdicts against relatively less blameworthy defendants, including public entities, that seemingly had deep pockets but were often financially burdened.3 Proposition 51 left the common law rule in place regarding joint and several liability for economic damages, but for general damages, Section 1431.2 states, "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint."

Proposition 51 thus contains pitfalls for plaintiffs and defendants. Regarding economic damages, defendants still must contemplate the prospect that other joint tortfeasors will not be able to contribute their apportioned share--and those with deep pockets may find themselves paying disproportionately. Conversely, under Section 1431.2, plaintiffs face the risk that each tortfeasor will not be able to pay its proportionate share of general damages, perhaps leaving some portion of a judgment uncollectible.4 Section 1431.2 applies to "fault" in a general sense and thus can include intentional tortfeasors5 as well as strictly liable defendants6 in its calculation of apportionment.

Section 1431.2 does not explicitly include procedures for addressing absent parties for purposes of apportionment. Indeed, this failure was the impetus for an unsuccessful constitutional challenge to the validity of Proposition 51 on the grounds of vagueness7 in DaFonte v. Up-Right--the first California Supreme Court case to specifically address Section 1431.2. The court held that the only reasonable construction of Section 1431.2 was that "a defendant['s] liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of 'defendant[s]' present in the lawsuit."8 The DaFonte court further held that the statute "neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability...."9 DaFonte lays the foundation for determining how plaintiffs and defendants can deal with absent entities or individuals who are potentially at fault for purposes of apportionment as well as the significance, if any, of immunity for those nonparties.10

Immunity versus Blamelessness

The basis of potential liability in negligence is duty. If a defendant had no duty toward the plaintiff, then for the purpose of liability, it does not matter whether or not the defendant's actions caused the plaintiff's harm. A classic, although extreme, example of the lack of duty is the ancient doctrine that "the king can do no wrong." Since all law flowed from the king, any action by the king, by definition, could not be a violation of the law.11 Anyone injured by an action of the king could at best petition the king for relief at his discretion. In effect, the king could voluntarily grant permission for suit or otherwise voluntarily provide a remedy, but the king had committed no legal wrong and was therefore not at fault in the legal sense. Under Civil Code Section 1431.2, the king would not be considered for purposes of apportionment, since he would not be at fault for the injury as a matter of law. This monarchical rule has morphed into government sovereignty, although modern governments generally consent to a wide range of tort liability. For other nonroyal defendants, either a judicial finding (such as summary judgment) or a legislative enactment (for example, a statute defining the potential scope of liability) can remove a party from any consideration of fault.

Immunity from suit--a principle that is sometimes applied loosely--refers in its more common application to protection from liability for a legal wrong that would otherwise be actionable.12 It is not the same as blamelessness. Indeed, immunity involves the recognition that the person or entity in question has committed a wrong for which liability could attach but, for public policy reasons, is not subject to suit despite being legally at fault.13 A common example is the immunity from prosecution sometimes granted to a criminal suspect who agrees to a plea bargain.14 While shielding the person entering the plea from further criminal liability, the immunity agreement generally does not pretend that the criminal suspect is not at fault or that no crime was committed.

State and Federal Governmental Immunity

In California, the Tort Claims Act is the primary authority defining the scope of governmental immunity.15 This act, codified at Government Code Sections 815 et seq., abolishes "all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g. inverse condemnation."16 Thus, with exceptions for certain constitutional or statutory claims, a public entity in California17 does not commit a legal wrong through its actions, regardless of who is hurt, and cannot be sued in tort in state court.18

These standards apply for purposes of apportionment under Civil Code Section 1431.2 when the public entity is an alleged joint tortfeasor. Apportionment is based on fault, so a public entity will only face apportionment when a showing is made that the entity is potentially liable under the applicable provisions of the Government Code or as required by either the state or federal constitutions.19 Otherwise, there is no fault to apportion to the public entity because it has not committed any legal wrong as a matter of law--and therefore it cannot be at fault for the claimed damages, regardless of whether any action of the public entity resulted in damage to the plaintiff.

For example, in Munoz v. City and County of San Francisco, the court dismissed a claim that the city had negligently selected and trained its police officers. It did so because the claim did not fall within the statutory language of Sections 815 et seq. that permit exceptions to the prohibition against liability for governmental entity.20 Moreover, the city could not be assessed for apportionment since the only claim against it was outside the Tort Claims Act (although it was still vicariously liable for the actions of a police officer).21

The Tort Claims Act also provides public entities with various immunities--for example, for discretionary acts (Government Code Section 820.2) and prosecuting actions (Section 821.6). These provisions protect public employees from suit under circumstances that might otherwise support a basis for liability. However, immunity is not even an issue until the plaintiff makes a showing that the government agent was at fault and would otherwise be liable for the injury in the absence of immunity.22 Therefore, the immunity derived from the Tort Claims Act does not remove the government agent from apportionment consideration under Civil Code Section 1431.2, even though the agent is protected from suit by statute.23

The federal concept of governmental immunity is similar to that of California, with similar results for the application of Section 1431.2. As a sovereign, the United States remains immune from tort liability except as it provides express statutory consent for suit.24 The broadest example of this type of statutory consent is the Federal Tort Claims Act, which permits tort claims against the federal government "to the same extent as a private individual under like circumstances," with specified exceptions.25 As in California, various immunities then apply to protect federal agents from suit for actions that are otherwise wrongful and would be subject to liability under the FTCA. The application of these immunities is the same as in California: The government agent, while protected from suit and a damages award, is still at fault under the FTCA and therefore still considered for the purpose of apportioning fault under Section 1431.2.26

In Collins v. Plant Insulation Company, the California Court of Appeal reversed a decision by the trial court that the U.S. Navy could not be subject to apportionment in an asbestos exposure case.27 There was no dispute that the decedent had been exposed to asbestos while working at a Navy shipyard, or that the Navy itself was immune from suit, but the trial court concluded that the Navy's sovereign immunity removed it from apportionment consideration entirely.28 The appellate court noted that the Navy's immunity was based on the discretionary function exception to the FTCA, which expressly applies even if that discretion is abused by actions or conduct recognized as wrongful or negligent.29 As a result, the Navy was at fault for purposes of apportionment, even if it was protected from suit.

Legal Absolution

States also can grant legal absolution to private parties, thereby removing them from any consideration based on fault. Distinguished from mere immunity, which protects the beneficiary from suit despite his or her fault, this type of absolution declares that no legal wrong was committed in the first place. As a result, there are no potential legal consequences from which the absolved party must be protected.

For example, Civil Code Section 1714.45 declares that manufacturers or sellers of inherently dangerous products are not liable if the products are known to be unsafe to ordinary consumers and are common consumer products--such as sugar, castor oil, and alcohol.30 Section 1714.45 expresses "a legislative judgment that to the extent of the immunity afforded, such companies have no 'fault' or responsibility, in the legal sense, for harm caused by their products."31 In 1987, tobacco was expressly added to Section 1714.45, only to be removed in 1998.32 During this 10-year period of protection for tobacco companies, their conduct, by legislative decree, simply was not wrongful: "[T]he companies did not owe, and therefore could not breach, any duty of care in connection with the sale of cigarettes."33

During the time that tobacco was covered by Section 1714.45, manufacturers and sellers of tobacco products did not commit any legal wrong by selling those products and could not be tortfeasors subject to an assessment of comparative fault under Proposition 51.34 Any apportionment attributed to the use of tobacco products would potentially fall on the plaintiff in the form of comparative negligence, since it is arguably negligent to use or misuse products that are commonly known to be inherently dangerous.

A similar result occurs with a judicial finding that a party had no duty to the plaintiff. In these cases, courts have made legal findings that the defendant bears no fault for the injury at issue because the defendant had no duty to the plaintiff relating to the injury. For example, in Ford v. Polaris Industries, Inc., the court granted summary judgment in favor of the owner/operator of a two-person watercraft, finding that she owed no duty of care to the plaintiff, a passenger in the watercraft, under the doctrine of primary assumption of the risk. Since the operator had no duty to the plaintiff, she could not have breached any duty or committed a tort and therefore had no legal fault regarding the plaintiff's injuries, which resulted from the plaintiff falling off the craft. This legal conclusion precluded any consideration of the operator for purposes of apportioning fault in the subsequent products liability action against the manufacturer.35


Vicarious Liability

Vicarious liability makes one party responsible for the actions of another by operation of law, regardless of whether the party made vicariously liable is otherwise without fault.36 Vicarious liability is not based on personal fault but on policy considerations imposed by legislative action or judicial doctrine. Therefore, vicarious liability is outside of the application of Section 1431.2, which apportions liability on the basis of fault. For example, a person with a nondelegable duty may be held vicariously liable for the negligence of a contractor hired for a particular task, even though the hiring person was innocent of any personal wrongdoing.37 While Section 1431.2 would apply in apportioning fault to a vehicle owner regarding his or her personal liability for negligent entrustment, the section cannot be used to reduce the statutory liability of the vehicle owner under Vehicle Code Section 17150, since that liability is based not on fault but rather on the status of being an owner of the vehicle.38

A common example of vicarious liability is respondeat superior--a doctrine that holds an employer liable for the actions of its employees within the scope of employment. Civil Code Section 1431.2 is applicable to employees under these circumstances, but an employer vicariously liable under respondeat superior cannot use Section 1431.2 to reduce its liability for noneconomic damages based on the argument that the employer bears no personal fault for the injury.39 Of course, if the employer was itself a joint tortfeasor based on its own actions, it could invoke Section 1431.2 regarding its own direct liability while separately still being vicariously liable for its employee's liability.

A potential exception regarding the separate liability of employers is currently pending before the California Supreme Court. In Diaz v. Carcamo, the supreme court will address an apparent division among the courts of appeal regarding when a separate theory against the employer loses its viability once the employer has conceded that it was vicariously liable for its employee.40 For example, in 1954 the supreme court held in Armenta v. Churchill that a claim of negligent entrustment was no longer viable against the employer once it admitted to vicarious liability, since the result in either case was to hold the employer liable for the damages caused by the employee.41 In Diaz, the employer seeks to extend this ruling to claims of negligent hiring and retention--a position rejected by the trial court and court of appeal, in part because Armenta predates Proposition 51.42

Strict Products Liability, Workers' Compensation, and Absent Parties

In a strict products liability case in which an allegedly defective product was the only cause of the injury, Civil Code Section 1431.2 does not apply among the defendants in the chain of distribution for that product. The imposition of strict liability upward in the chain of distribution for a defective product is a deliberate allocation of responsibility based on the social cost of distributing a potentially defective product--and independent from a finding of fault.43 Similar to vicarious liability, strict products liability is an obligation imposed as a matter of policy.

However, if multiple products caused an injury, then comparative fault principles come into play. These principles apply to apportion liability between the different products, thus invoking the application of Section 1431.2.44 Similarly, if negligence defendants are named in the action, apportionment under Section 1431.2 applies between the defendant

manufacturers and distributors of the products and the defendants facing claims of negligence.45 For considerations of apportionment, each product at issue is a party in itself, subject to an allocation of fault in the same manner as a negligent defendant. Once a product is assigned with its portion of fault, then strict products liability principles are employed to determine which entities are responsible for that portion of the judgment.

The DaFonte court addressed another common scenario in determining apportionment under Section 1431.2--the interaction of workers' compensation law and claims of employer liability.46 In DaFonte, the plaintiff was injured by a mechanical grape harvester that he was trying to clean, and he sued the manufacturer for product liability. The manufacturer argued that the negligence of the plaintiff's employer was the cause of the accident.

While the employer was protected under workers' compensation law from a suit in tort,47 the jury apportioned 45 percent of the fault to the employer's negligence. Although the product defendant remained jointly and severally liable for the economic damages, DaFonte held that the immunity of the employer to civil suits did not remove it from consideration in apportioning fault for general damages.48

According to the DaFonte court, the employer still had "legal fault" and therefore remained a tortfeasor for purposes of apportionment--even if the extent of the employer's obligation to pay was defined solely under workers' compensation law.49 This result follows the practical reality that an employer, although immune from most civil suits, is legally responsible for employee injuries. As a result, an employee still has a remedy against an employer--albeit one controlled by the workers' compensation laws. This result is similar to what can be achieved in a civil suit against third parties by an employee receiving benefits under the federal Longshore Act.50

Insofar as an employer is found to be at fault for an employee's injuries, and the workers' compensation payments are attributed

to economic damages, a third-party defendant is entitled to a credit in the amount of the workers' compensation payments.51 Of course, this works both ways, with an employer also entitled to recover from the tort defendants if any of the employer's workers' compensation payments exceed its designated share of liability.52

The fact that a party has settled does not stop the trier of fact from considering that party in apportioning liability for a plaintiff's injuries. This is true even if the settlement was approved as a good faith settlement under Code of Civil Procedure Section 877(a).53 Insofar as the settlement proceeds are attributed to general damages, the remaining parties are not entitled to any offset, as these damages are only several under Civil Code Section 1431.2 and therefore are specific to each defendant.54 As a result, how settlement proceeds are allocated between economic and general damages will determine the amount of any offset in favor of the remaining defendants.55 This allocation can be addressed by the settling parties as part of the settlement agreement and can even be approved as part of the determination that a good faith settlement was reached. The division can also be accomplished after the verdict is returned and the applicable offsets are being determined.

Similarly, a party who is simply missing from the proceedings because no one chose to name and serve that party can still be considered for purposes of apportionment. For example, in a slip and fall claim against property owners, the owners were permitted to admit evidence regarding the alleged medical malpractice of the healthcare providers who treated the plaintiff, even though neither the plaintiff nor the defendants had named the providers as a party to the suit.56 As with all such attempts, however, the defendant bears the burden to establish the potential liability of the absent party to support the apportionment.

While the application of Civil Code Section 1431.2 may seem inconsistent to plaintiffs who are attempting to recover their damages, the basic principles governing apportionment of fault and the application of several liability for general damages have remained consistent since DaFonte. Any nuance in application hinges on what it means to be legally at fault--a concept that predates Proposition 51 but dominates the outcome of any attempt to apply it. Once that issue is resolved, and a jury verdict reached, the application of Section 1431.2 is largely a question of arithmetic.



1 Richards v. Owens-Illinois, Inc., 14 Cal. 4th 985, 987 (1997); Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 527-28 (1997).
2 DaFonte v. Up-Right, 2 Cal. 4th 593, 597-98 (1992).
3 Civ. Code §1431.1; see also Buttram, 16 Cal. 4th at 528.
4 Since Civil Code §1431.2 does not apply to all tort actions--just those alleging "personal injury, property damage, or wrongful death"--§1431.2 does not apply to an action for legal malpractice. Brandon G. v. Gray, 111 Cal. App. 4th 29, 39 (2003).
5 See Weidenfeller v. Star & Garter, 1 Cal. App. 4th 1, 5 (1991). The Weidenfeller court addressed the right of a negligent defendant to apportionment when a codefendant is found liable under an intentional tort. It ruled that a defendant found liable for an intentional tort does not have a corresponding right to apportionment. See also Thomas v. Duggins Constr. Co., Inc., 139 Cal. App. 4th 1105, 1108 (2006).
6 Safeway Store, Inc. v. Nest-Kart, 21 Cal. 3d 322, 330-31 (1978).
7 Evangelatos v. Superior Court, 44 Cal. 3d 1188, 1200-02 (1988).
8 DaFonte v. Up-Right, 2 Cal. 4th 593, 603 (1992).
9 Id. at 601.
10 Since apportionment does not apply regarding economic damages, any defendant found liable to any degree can be held accountable for the entire award of economic damages. The issue then becomes one of contribution, as the defendant saddled with the economic damages attempts to collect from the other joint tortfeasors.
11 Madison v. City & County of S.F., 106 Cal. App. 2d 232, 249-50 (1951) (noting the increasing criticism of the doctrine in modern jurisprudence); see also Collins v. Plant Insulation Co., 185 Cal. App. 4th 260, 272-73 (2010); Blackstone's Commentaries on the Laws of England, First Book, ch. 7, Of the King's Prerogative.
12 Ovando v. County of L.A., 159 Cal. App. 4th 42, 72 n.12 (2008) (criticizing dictum in Arena v. Owens-Corning Fiberglas Corp., 63 Cal. App. 4th 1178, 1195, n.10 (1998), which failed to distinguish between a person immune from suit and one who had breached no legal duty or committed no tort).
13 Munoz v. City of Union City, 148 Cal. App. 4th 173, 182 (2007).
14 Richards v. Owens-Illinois, Inc., 14 Cal. 4th 985, 987 (1997); Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 527-28 (1997).
15 Gov't Code §§815 et seq.
16 See Gov't Code §815, Legislative Committee cmts.--Senate. The state remains subject to suit for violations of contract and for specific performance under Government Code §814.
17 Under Government Code §811.2 a public entity includes the state as well as each county, city, and any other political subdivision in the state and is intended to encompass each "independent political or governmental entity." California Law Revision Commission, cmt. to Gov't Code §811.2.
18 Gov't Code §815; see also cases cited in 5 Witkin, Summary of California Law Torts, §223.
19 Munoz v. City of Union City, 148 Cal. App. 4th 173, 182 (2007).
20 Id. at 176-77.
21 Id.
22 Davidson v. City of Westminster, 32 Cal. 3d 197, 202 (1982).
23 See, e.g., Ovando v. County of L.A., 159 Cal. App. 4th 42, 72-73 (2008).
24 Eastern Trans. Co. v. United States, 272 U.S. 675, 47 S. Ct. 289, 291, 71 L. Ed 472, 475 (1927); United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941).
25 Collins v. Plant Insulation Co., 185 Cal. App. 4th 260, 269 (2010).
26 Taylor v. John Crane Inc., 113 Cal. App. 4th 1063, 1068, 1071 (2003); Collins, 185 Cal. App. 4th at 270.
27 Collins, 185 Cal. App. 4th at 276.
28 Id. at 264-65.
29 Id. at 270, 272.
30 Civ. Code §1714.45(a).
31 Richards v. Owens-Illinois, Inc., 14 Cal. 4th 985, 989 (1997).
32 Myers v. Phillip Morris Cos., 28 Cal. 4th 828 (2002).
33 Collins, 185 Cal. App. 4th at 268.
34 Richards, 14 Cal. 4th at 989.
35 Ford v. Polaris Indus., Inc., 139 Cal. App. 4th 755, 778-79 (2006).
36 Far West Fin. Corp. v. D & S Co., 46 Cal. 3d 796, 819 (1988).
37 Srithong v. Total Inv. Co., 23 Cal. App. 4th 721, 726-27 (1994).
38 Rashtian v. BRAC-BH, Inc., 9 Cal. App. 4th 1847, 1849 (1992).
39 Miller v. Stouffer, 9 Cal. App. 4th 70, 85 (1992).
40 Diaz v. Carcamo, 182 Cal. App. 4th 339 (2010), rev. granted.
41 Armenta v. Churchill, 42 Cal. 2d 448, 457-58 (1954).
42 Diaz, 182 Cal. App. 4th at 343, 346.
43 Wimberly v. Derby Cycle Corp., 56 Cal. App. 4th 618, 628-34 (1997) (citing Far West Fin. Corp. v. D & S Co., 46 Cal. 3d 796, 813 n.13 (1988)).
44 Arena v. Owens-Corning Fiberglas Corp., 63 Cal. App. 4th 1178, 1192 (1998); Wilson v. John Crane, Inc., 81 Cal. App. 4th 847, 852 (2000).
45 Safeway Store, Inc. v. Nest-Kart, 21 Cal. 3d 322, 330-31 (1978).
46 DaFonte v. Up-Right, 2 Cal. 4th 593 (1992).
47 Lab. Code §§3602, 3864.
48 DaFonte, 2 Cal. 4th at 604.
49 Id. at 604 n.6.
50 Hernandez v. Badger Constr. Equip. Co., 28 Cal. App. 4th 1791, 1798 (1994). However, under the Longshore Act, the employer is allowed to recover all benefits paid from the third parties regardless of employer negligence. Id. at 1809; Schreefel v. Okuly, 143 Cal. App. 3d 818, 825 (1983).
51 DaFonte, 2 Cal. 4th at 604.
52 Aceves v. Regal Pale Brewing Co., 24 Cal. 3d 502, 512 (1979).
53 Regan Roofing Co., Inc. v. Superior Court, 21 Cal. App. 4th 1685, 1706-08 (1994).
54 Hoch v. Allied-Signal, Inc., 24 Cal. App. 4th 48, 63-64 (1994).
55 Regan Roofing, 21 Cal. App. 4th at 1706-08.
56 Henry v. Superior Court (Reinink), 160 Cal. App. 4th 440, 455 (2008).


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