Larry Coben’s recent article in the Law Weekly, published on Aug. 15, asks the question, “Should Vehicle Manufacturers Be Entitled to Apportionment of Liability?” We contend that Pennsylvania’s tort law should be applied to vehicle manufacturers in just the same way it is applied to any other litigant.
Allocating liability between a negligent driver and an automobile maker liable for a crashworthiness defect requires the use of straightforward, universally applicable, principles of tort law. The common law provides that each tortfeasor is responsible for all injuries proximately caused by a tort, and therefore it frequently occurs that more than one defendant is liable for a particular injury. “It is axiomatic that, in a common law tort action, the tortfeasor is liable for all injury caused by his negligence or other unlawful conduct,” as in Better v. Forbes, 519 Pa. 422, 426, 548 A.2d 1215, 1217 (1988), and Wallace v. Pennsylvania Railroad, 222 Pa. 556, 564, 71 A. 1086, 1089 (1909) (negligent medical treatment of accident-induced injury did not relieve the original tortfeasor of liability because “the consequences following the operation and resulting directly therefrom are in a legal sense the sequence and result of the original accident”). Common law jurisdictions have rules for which tortfeasor pays how much under these circumstances. In Pennsylvania the Comparative Negligence Act and the Uniform Contribution Among Tort-feasors Act control the question, as in Kemper National P&C Companies v. Smith, 419 Pa. Super. 295, 309, 615 A.2d 372, 379 (1992) (“the rights of contribution and apportionment of liability among multiple defendants is a matter which is governed exclusively by statute in Pennsylvania”).
Pennsylvania law defines “joint tortfeasors” as “two or more persons jointly or severally liable for the same injury.” When it has been determined that two tortfeasors are liable for the same injury, the statutes are applied to determine how much each defendant is obliged to pay. There are not different rules applicable to different torts.
What Damages Is a Negligent Driver Liable For?
A negligent driver is liable for all injury proximately caused by the driver’s negligence. This is true whether medical malpractice follows the accident, as in Lamont v. Adams Express, 264 Pa. 17, 22, 107 A. 373, 375 (1919), the plaintiff is especially susceptible to injury, as in Gustison v. Ted Smith Floor Products, 679 A.2d 1304, 1311 (Pa. Super. 1996), or the plaintiff’s injuries are made more serious by a crashworthiness defect in the plaintiff’s car, as in Harsh v. Petroll, 584 Pa. 606, 623, 887 A.2d 209, 219 (2005). The negligent driver in Harsh argued that as between a negligent driver and a crashworthiness defendant, when “the injuries attributable to each are capable of division on a rational basis, the negligent driver and the manufacturer cannot be subject to joint and several liability,” so that the car’s manufacturer could not proceed on a claim under the Uniform Contribution Among Joint Tort-feasors Act. To “support the claim that the … injuries were capable of rational division, the negligent driver relied on the plaintiffs’]evidence as demonstrating that defendants survived the initial impact with moderate physical injuries and would not have died absent the fire caused by the car’s defective fuel system.” Despite the driver’s vigorous argument that the injuries were “divisible,” not “indivisible,” the Supreme Court held that the negligent driver was jointly liable with the manufacturer for all the injuries caused by the defect in the car. “Although crashworthiness theory establishes a basis to support manufacturer liability for enhanced injury, it does not require that a manufacturer be the exclusive cause of such injury, nor does it diminish the causal link that exists between an initial collision and all resultant harm.”
What Damages Is a Crashworthiness Defendant Liable For?
A crashworthiness defendant is liable for all injury proximately caused by a defect in the vehicle. In other words, an automobile maker may be “civilly liable to an injured plaintiff for increased or enhanced injuries over and above those which would have been sustained as a result of the initial impact.” Like the negligent driver, the manufacturer is liable for all the injuries caused by its tort, but, in some accidents, some injuries are inevitable from the accident itself, and some are enhanced or caused by the defect. Only the injuries “over and above” those which would have occurred anyway are the responsibility of the manufacturer.
In Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), the Commonwealth Court explained the limited nature of a manufacturer’s liability, quoting Oddi v. Ford Motor, 234 F.3d 136, 142 (3d Cir. 2000): “The crashworthiness doctrine permits a plaintiff to recover for enhanced injuries, i.e., only for those injuries he can prove he would not have sustained if he had been riding in a crashworthy vehicle. If enhanced injuries cannot be shown, then no liability exists as to the manufacturer.”
The “divisible injury” concept, so emphasized by the driver in Harsh, and by Coben in the Law Weekly, is only relevant in a case where a plaintiff seeks recovery for all injuries, and there is a dispute as to whether a particular injury is an enhanced injury. If it is not, the manufacturer has no liability. If it is, and there is another defendant liable for causing the crash, they share the liability. If the injury was inevitable in the accident, in some form, but aggravated to an unknown extent by the defect, then it is an “indivisible” injury, for which both defendants share liability.
Appeal to Florida Law
Coben asks “if the damages are divisible between the collision-causing tortfeasor and the noncrashworthy manufacturer, why is apportionment warranted?” An allocation of liability is appropriate only as to enhanced injuries, but if two defendants are liable for those injuries, an allocation of liability so not only appropriate, but required, just as it is with any other tort, when two defendants are liable for the same injury.
Coben proposes a Florida Supreme Court opinion as providing an alternative to joint liability for enhanced injuries. The opinion does not provide support for the position. In Gross v. Lyons, 763 S.2d 276 (Fla. 2000), the plaintiff had been involved in two automobile accidents. The plaintiff alleged that her back was injured in the first accident, and denied the second accident caused her any injury. She brought suit against a driver of a car involved in the first accident, but no one was sued for the second. The defendant alleged that the plaintiff’s medical problems resulted from the second accident. The trial court instructed the jury that plaintiff could not “recover any loss, injury or damage caused by the second accident.”
Florida’s intermediate appellate court found the instruction misleading, as possibly causing the jury to believe that if it found the second accident aggravated injuries from the first, and there was no basis for distinguishing the original injury from the aggravation, there should be no recovery. The Florida Supreme Court affirmed, holding that when only one defendant is sued, and it is proved that the defendant caused an injury, “the first tortfeasor will be liable for the entire injury,” even if the injury may have been aggravated by a second accident, caused by a second tortfeasor. The ruling in Gross is consistent with prior Florida law, and is consistent with the joint liability of negligent drivers and car makers for enhanced injuries. The Gross opinion explained the limited nature of its holding: “prior tortfeasors will be liable for whole injuries just as subsequent tortfeasors have been liable for entire unapportionable injuries.” The opinion calls this the “indivisible injury rule,” because it only applies when the same indivisible injury is involved in both accidents. If the injuries caused by the two accidents were “divisible,” the rule would not apply because tortfeasors are not liable for injuries they did not cause. A separate “divisible” injury caused only by the second accident could not be the responsibility of the first tortfeasor.
The Florida court, then, held that a prior tortfeasor, or a subsequent tortfeasor, may be liable for an entire injury, and if only one defendant is before the court, that one defendant would have to pay the judgment. If both were before the court, though, there would have to be a mechanism for determining which would pay how much, since both were legally responsible for the whole thing. Gross has nothing to do with crashworthiness litigation, and nothing to say about how to allocate actual payment when two defendants have been found liable for the same injury. The Gross court stated: “Application of the indivisible injury rule is not inconsistent with Florida statutory law concerning the apportionment of damages amongst tortfeasors based on fault.” Where only one defendant is found liable for an injury “statutory law concerning the apportionment of damages amongst tortfeasors based on fault” is not implicated. If the only defendant before the court is a negligent driver, a plaintiff can recover from that driver, damages for all the injuries, enhanced and not enhanced. Similarly, where no party is found liable for causing the crash, a crashworthiness defendant has no one to share liability with, and must pay the entire judgment. Gross said nothing at all about how liability is allocated when both a prior and subsequent tortfeasor are before the court and found liable.
Coben’s concern seems to be that under the Comparative Negligence Act, unless a defendant is found more that 60 percent responsible, that defendant ordinarily only pays the percentage assigned by the jury, even if the other defendant is unable to pay its share of the judgment. There are no policy reasons why the statute should continue to be applicable to other defendants, but not to automobile manufacturers. We are unaware of any case where the percentage of liability assigned by a jury resulted in an injustice.
The statute applies to all litigants. Any change in Pennsylvania law on this issue should come from the Legislature. In the absence of evidence that jurors are misusing their power to assign liability to the parties before them, there is no reason for the Legislature to change the law. •