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Applications of Joint & Several Liability in CA Personal Injury Lawsuits Involving Intentional Torts

This article illustrates how joint and several liability operates in a personal injury matter involving negligence causes of action and an intentional tort asserted in a single lawsuit against multiple defendants. We use three different scenarios to show how a finding that a defendant is liable for an intentional tort reduces that defendant’s ability to benefit from apportionment of fault principles under Proposition 51.

The Purpose of Proposition 51

Proposition 51, which was adopted in California 1986, provides: “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. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” California Code of Civil Procedure§ 1431.2(a). Proposition 51 has been described as a “compromise measure” that “sought to balance the interests of injured parties who have sustained considerable damages caused by several tortfeasors, one or more of which is insolvent, against unfairness” of the old rule, which often resulted in “a minimally culpable tortfeasor being held liable for the entirety of a plaintiff's damages.” Thomas v. Duggins Construction Co., Inc., 139 Cal. App. 4th 1105, 1110 (Cal. Ct. App. 2006).

Well-established California law provides a tortfeasor who intentionally injures another is not entitled to contribution from any other tortfeasors. See California Code of Civil Procedure§ 875(d). Proposition 51 did not alter these principles governing an intentional tortfeasor’s liability to an injured plaintiff. Thomas v. Duggins Construction Co., Inc., 139 Cal. App. 4th 1105 (Cal. Ct. App. 2006). Whereas Proposition 51 generally operates to reduce a defendant’s liability to an amount proportionate to that defendant’s percentage of fault, such a reduction is generally not available when a defendant is found liable for an intentional tort. Additionally, if a defendant is found to have committed an intentional tort against a plaintiff, that defendant is not entitled to a reduction of the judgment because the plaintiff’s injuries also resulted from his own negligence or the negligence of a third party.

Notwithstanding the foregoing, intentional tortfeasors are permitted to seek contribution and indemnity from other intentional tortfeasors in the action. See Baird v. Jones, 21 Cal. App. 4th 684, 686 (Cal. App. 4th Dist. 1993) (holding the comparative equitable indemnity doctrine permits an intentional tortfeasor to obtain indemnity from a concurrent intentional tortfeasor).

Hypothetical Fact Pattern For Use In The Analysis

For purposes of this analysis, we assume the following facts. Plaintiff, a patron at a sports bar (hereinafter, “Sports Bar”), was intoxicated and harassed one of the bartenders in Sports Bar. A Bouncer grabbed Plaintiff and attempted to remove Plaintiff from the Sports Bar. Plaintiff was escorted out of the Sports Bar by Bouncer. Plaintiff was intoxicated and turned to take a swing at Bouncer but immediately fell to the ground outside. Before Plaintiff was able to stand up, Bart, who was riding his bicycle on the sidewalk in violation of a local municipal code, ran into Plaintiff, causing Plaintiff serious personal injury. Plaintiff sued Bart, Sports Bar, and the Bouncer. Sports Bar, Bouncer, and Bart asserted as affirmative defenses the fact that Plaintiff’s own negligence contributed to his injury.

The Three Scenarios Showing Intentional Tort Liability For Different Defendants

In our first scenario, we are assuming Bart was a long-time enemy of Plaintiff and, when he saw Plaintiff on the ground, steered his bicycle to strike Plaintiff. In our hypothetical lawsuit, Plaintiff asserted Negligence Causes of Action against Bouncer and Sports Bar. Against Bart, Plaintiff asserted a Negligence Cause of Action and a Battery Cause of Action.

In our second scenario, we assume Bouncer struck and pushed Plaintiff out of Sports Bar, causing Plaintiff to fall to the ground. Bart, a stranger to Plaintiff, was simply not paying attention to where he was riding on the sidewalk and ran into Plaintiff. In our second scenario, Plaintiff asserted a Battery Cause of Action against Bouncer, and a Negligence Cause of Action against Bouncer, Sports Bar, and Bart.

In our third scenario, we assume both that Bart intentionally ran his bicycle into Plaintiff and that Bouncer struck and pushed Plaintiff out of Sports Bar, causing Plaintiff to fall to the ground. In our third scenario, Plaintiff asserted a Battery Cause of Action against both Bouncer and Bart, and a Negligence Cause of Action against Bouncer, Sports Bar, and Bart.

To succeed on the intentional tort of Battery (CACI 1300), Plaintiff had to prove:

1. that Bart (or Bouncer) touched Plaintiff with the intent to harm or offend him;
2. that Plaintiff did not consent to the touching; and
3. that Plaintiff was harmed by Bart’s (or Bouncer’s) conduct.

To succeed on his claim of Negligence (CACI 400) against each of the defendants, Plaintiff was required to prove:

1. that each of the Defendants was negligent;
2. that Plaintiff was harmed; and
3. that each of the Defendants’ negligence was a substantial factor in causing Plaintiff’s harm.

The jury was instructed that Negligence (CACI 401) is “the failure to use reasonable care to prevent harm to oneself or to others.”

In all three scenarios, Plaintiff asserted Sports Bar was responsible for the harm caused by Bouncer because Sports Bar negligently supervised Bouncer. To establish this claim, Plaintiff was required to prove:

1. that Bouncer was unfit or incompetent to perform the work for which he was hired;
2. that Sports Bar knew or should have known that Bouncer was unfit or incompetent and that this unfitness or incompetence created a particular risk to others;
3. that Bouncer’s unfitness or incompetence harmed Plaintiff; and
4. that Sports Bar’s negligence in supervising Bouncer was a substantial factor in causing Plaintiff’s harm.

In our second and third scenarios, Plaintiff also asserted that Sports Bar was vicariously liable for the harm caused by Bouncer’s intentional tort because Bouncer was an employee of Sports Bar acting within the course and scope of his employment when he struck and pushed Plaintiff out the door (CACI 3700).

After the parties each put on their evidence at trial, the jury received a Special Verdict Form, which included the following findings:

In the First Scenario and Third Scenario, as to the Battery Cause of Action, the jury found as follows:

1. Did Bart touch Plaintiff with the intent to harm or offend him?     X Yes       No
2. Did Plaintiff consent to being touched?        Yes   X No
3. Was Plaintiff harmed by Bart’s conduct?     X Yes       No

In our First Scenario, as to the Negligence Causes of Action, the jury made the following findings:

1. Was Bouncer negligent?    X Yes       No
2. Was Bouncer’s negligence a substantial factor in causing harm to Plaintiff?    X Yes        No
3. Was Sports Bar negligent?     X Yes     No
4. Was Sports Bar’s negligence a substantial factor in causing harm to Plaintiff?    X Yes       No
5. Was Bart negligent?    X Yes        No
6. Was Bart’s negligence a substantial factor in causing harm to Plaintiff?    X Yes        No

In the Second Scenario and Third Scenario, as to the Battery Cause of Action, the jury found as follows:

1. Did Bouncer touch Plaintiff with the intent to harm or offend him?    X Yes        No
2. Did Plaintiff consent to being touched?       Yes    X No
3. Was Plaintiff harmed by Bouncer’s conduct?    X Yes        No

As to the Negligence Causes of Action and Vicarious Liability in our Second and Third Scenarios, the jury made the following findings:

1. Was Bouncer negligent?     X Yes        No
2. Was Bouncer’s negligence a substantial factor in causing harm to Plaintiff?    X Yes      No
3. Was Bouncer Sports Bar’s employee?    X Yes       No
4. Was Bouncer acting within the scope of his employment when he harmed Plaintiff?    X Yes       No
5. Was Sports Bar negligent?    X Yes       No
6. Was Sports Bar’s negligence a substantial factor in causing harm to Plaintiff?    X Yes       No
7. Was Bart negligent?     X Yes       No
8. Was Bart’s negligence a substantial factor in causing harm to Plaintiff?     X Yes       No

For all three scenarios, we assume the jury made the following findings with regard to Plaintiff’s damages.

1. What are Plaintiff’s total damages?

a. Past Economic Loss (lost earnings, profits, medical expenses): $50,000
b. Future economic loss(lost earnings, profits, medical expenses): $50,000
c. Past non-economic loss (pain and suffering): $100,000
d. Future non-economic loss (pain and suffering): $100,000

For all three scenarios, we assume the jury responded as follows regarding the plaintiff’s comparative negligence:

1. Was Plaintiff negligent?    X Yes       No
2. Was Plaintiff’s negligence a substantial factor in causing his harm?    X Yes       No

For all three scenarios, we assume the jury assigned responsibility for Plaintiff’s harm based on its findings as follows:

1. What percentage of responsibility for Plaintiff’s harm do you assign to the following?

Bart: 75%
Bouncer: 15%
Sports Bar: 5%
Plaintiff: 5%
TOTAL: 100 %

In summary, Plaintiff’s economic damages in our hypothetical were found to be $100,000. His non-economic damages were found to be $200,000.

Based on these facts and the application of Proposition 51, the parties’ liability for Plaintiff’s damages would be reduced and apportioned as follows in each of our hypothetical scenarios.

Application of Proposition 51 In Our First Scenario

In our first scenario, Bart was found liable for an intentional tort of Battery as well as Negligence. Sports Bar and Bouncer were found liable for Negligence. Pursuant to California Code of Civil Procedure§ 875(d), Bart would not be entitled to any contribution from Bouncer or Sports Bar. Additionally, Bart would not be entitled to a 5% reduction in the judgment entered against him for Plaintiff’s economic damages. Bart would not be entitled to a reduction of any kind relating to Plaintiff’s non-economic damages. Accordingly, Bart would be liable for 100% of plaintiff’s economic damages ($100,000) and 100% of plaintiff’s non-economic damages ($200,000).

Bouncer and Sports Bar, on the other hand, would each be jointly liable for 95% of Plaintiff’s economic damages, or $95,000. Regarding Plaintiff’s non-economic damages, the judgment against Bouncer would be reduced to $30,000 (i.e., 15% of Plaintiff’s non-economic damages). Sports Bar’s judgment for Plaintiff’s non-economic damages would be reduced to $10,000 (i.e., 5% of Plaintiff’s non-economic damages).

Application of Proposition 51 In Our Second Scenario

In our second scenario, Bouncer was found liable for an intentional tort of Battery. Sports Bar was found to be vicariously liable for the harm caused to Plaintiff by Bouncer’s Battery. Bart, Sports Bar, and Bouncer were found liable for Negligence.

Pursuant to California Code of Civil Procedure§ 875(d), Bouncer would not be entitled to any contribution from Bart for his liability for economic or non-economic damages. Additionally, Bouncer would not be entitled to a 5% reduction of any judgment against him for Plaintiff’s economic damages. Sports Bar was found to be vicariously liable for all of the damages for which Bouncer was liable. Accordingly, Bouncer and Sports Bar would be liable for 100% of plaintiff’s economic damages ($100,000) and 100% of plaintiff’s non-economic damages ($200,000).

Bart, on the other hand, would be liable for 95% of Plaintiff’s economic damages, or $95,000. Regarding Plaintiff’s non-economic damages, the judgment against Bart would be reduced to $150,000 (i.e., 75% of Plaintiff’s non-economic damages). Sports Bar’s judgment for Plaintiff’s non-economic damages would not be reduced because it was found vicariously liable for Bouncer’s intentional tort.

Application of Proposition 51 In Our Third Scenario

If Bart and Bouncer were both found liable for intentional torts, each would be liable for 100% of Plaintiff’s economic and non-economic damages. Sports Bar would also be liable for 100% of Plaintiff’s economic and non-economic damages, as it was found to be vicariously liable for Bouncer’s intentional conduct. Bouncer, however, would be permitted to seek contribution and indemnity from Bart for any amount over 15% of the judgment that Bouncer paid to Plaintiff. Sports Bar would also be permitted to seek contribution and indemnity from Bart for any amount over its 5% responsibility for the judgment.

Related Practices

• General Liability