Bartlett v. New Mexico Welding Supply, Inc.

OPINION BY: WOOD

This comparative negligence case presents two issues: (1) whether a tortfeasor is liable for all of the damages caused by concurrent tortfeasors under a theory of joint and several liability; and (2) whether the percentage of fault of a nonparty concurrent tortfeasor is to be determined by the fact finder.

The automobile accident involved three vehicles. The car in front of plaintiffs' car signaled a right hand turn. This lead car turned into and then pulled out of a service station in a very fast motion. Plaintiff Jane Bartlett slammed on her brakes to avoid hitting the lead car. Defendant's truck was behind plaintiffs' car. Defendant's driver applied his brakes; however, the truck skidded into the rear of plaintiffs' car.

The driver of the lead car is unknown. Plaintiffs sued defendant on a theory of negligence. Defendant contended that the negligence of the unknown driver "caused or contributed to cause" the accident and resulting damages.

The trial court instructed the jury: If you find for the plaintiff but also find that the negligence of the plaintiff and/or the unknown third party contributed to cause the accident and resulting damages, then you must decide how much each party was at fault. The defendant is liable only for defendant's percentage of fault in causing the accident and any resulting damages and the total amount of damages to which plaintiff would otherwise be entitled shall be reduced in proportion to the percentage of plaintiff's negligence and/or the negligence of the unknown third party.

The jury answered "special questions." It determined that plaintiffs' damages were $ 100,000.00, that plaintiffs were not negligent, that defendant was negligent, that defendant's negligence contributed to the accident and plaintiffs' damages to the extent of 30%, that the unknown driver was negligent and this negligence contributed to the accident and plaintiffs' damages to the extent of 70%.

Plaintiffs moved that judgment be entered in their favor in the amount of $ 100,000.00. This motion was not granted. Instead, the trial court ordered a new trial. The trial court was of the view that: (a) the above quoted instruction should not have been given; (b) that the case should not have been tried between plaintiffs, defendant, and the unknown driver; (c) that defendant is jointly and severally liable for the damages to plaintiffs caused by defendant and the unknown driver; and (d) "that a different result would have occurred had the jury known that this Defendant would have been responsible for the total damages under joint and several liability."

We granted defendant's application for an interlocutory appeal.

In this case, in using the term "joint and several liability," we mean that either of two persons whose concurrent negligence contributed to cause plaintiffs' injury and damage may be held liable for the entire amount of the damage caused by them. It is not disputed that this is a common law rule which existed in New Mexico prior to Scott v. Rizzo, which adopted the opinion of the Court of Appeals in Claymore v. City of Albuquerque. In Claymore, this Court adopted pure comparative negligence. Claymore is reported immediately following the Supreme Court opinion in Scott and without a separate citation. Our references to Scott and Claymore are to be found in the opinion reported under the above citation. It is not disputed that defendant and the unknown driver were concurrent tortfeasors.

The question is whether, in a comparative negligence case, a concurrent tortfeasor is liable for the entire damage caused by concurrent tortfeasors. In answering this question, we do not consider situations where one of the tortfeasors would not be subject to any liability; such situations might arise under either statutory or common law provisions. The premise for the question to be answered is that, under the common law rule, either the defendant or the unknown driver could be held liable for the damage caused by their combined negligence.

The question has been answered in several states; most of these decisions are not helpful because the answer depended upon the contents of a comparative negligence statute.

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The foregoing discussion shows that joint and several liability, for concurrent tortfeasors, has been retained by judicial decision in pure comparative negligence states. . . .

The retention of joint and several liability ultimately rests on two grounds; neither ground is defensible.

The first ground is the concept that a plaintiff's injury is "indivisible." The California Supreme Court, in American Motorcycle Ass'n, supra, followed this ground when it stated: [T]he simple feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury "divisible" for purposes of the joint and several liability. * * * In other words, the mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to another does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury.

Thus, under the California Supreme Court decision, a concurrent tortfeasor, 1% at fault, is liable for 100% of the damage caused by concurrent tortfeasors, on the basis that the tortfeasor, 1% at fault, caused the entire damage. A practical answer, in this case, is that the jury found that defendant was 30% at fault and caused 30% of the damage.

Prosser, Law of Torts, 4th Edition, Sec. 41, p. 241, states: "The law of joint tortfeasors rests very largely upon recognition of the fact that each of two or more causes may be charged with a single result."

Prosser, "Joint Torts and Several Liability," states that the rule holding a concurrent tortfeasor for the entire loss "grew out of the common law concept of the unity of the cause of action; the jury could not be permitted to apportion the damages, since there was but one wrong." The "unity" concept, in turn was based on common law rules of pleading and joinder. . . .

Joint and several liability is not to be retained in our pure comparative negligence system on a theory of one indivisible wrong. The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New Mexico. . . .

Joint and several liability is not to be retained in our pure comparative negligence system on the basis that a plaintiff must be favored.

We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver. Defendant, as a concurrent tortfeasor, is not liable on a theory of joint and several liability. . . .

The trial court properly instructed the jury to consider the negligence and damage resulting from the negligence of the unknown driver.

The order granting a new trial is reversed. The cause is remanded with instructions to enter judgment in favor of plaintiffs, against defendant, for the 30% of plaintiffs' damages caused by defendant.

IT IS SO ORDERED.