Lincenberg v. Issen

• Decision Date: 30 July 1975
• Docket Number: No. 45696,45696
• Citation: 318 So.2d 386
• Parties: Harry LINCENBERG, Petitioner, v. Minnie ISSEN et al., Respondents.
• Court: Florida Supreme Court

Page 386

318 So.2d 386

Harry LINCENBERG, Petitioner, v. Minnie ISSEN et al., Respondents.

No. 45696.

Supreme Court of Florida.

July 30, 1975.

Rehearing Denied Oct. 8, 1975.

Arthur J. Morburger, Alvin N. Weinstein and Harry D. Bavly of Weinstein & Bavly, Miami, for petitioner.

Mark Pollack of Whitman & Wolfe, P.A., Miami, for Minnie Issen, and R. Fred Lewis of Kuvin, Klingensmith & Coon, Miami, for Angelo and Eleanor Rhodes, respondents.

Robert Orseck of Podhurst, Orseck & Parks, and J. B. Spence, Miami, for Academy of Florida Trial Lawyers, amicus curiae.

Kenneth L. Ryskamp of Bolles, Goodwin, Ryskamp & Welcher, Miami, for Florida Defense Lawyers Assn., amicus curiae.

Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Luke Rader, M.D. and The Employers Fire Ins. Co., amicus curiae.

Anne C. Booth of Hall & Booth, Tallahassee, for amicus curiae.

ROBERTS, Judge.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, in Issen v. Lincenberg, Rhodes and Rhodes, reported at 293 So.2d 777 (Fla.App.1974), which conflicts with this Court's decision in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Succinctly, the facts are as follows:

Minnie Issen sued Eleanor and Ronald Rhodes and Harry Lincenberg alleging that on July 16, 1972, she was a passenger in an automobile owned and driven by the defendant, Harry Lincenberg, which collided with a vehicle owned by Eleanor Rhodes and driven by Ronald Rhodes. Plaintiff was not guilty of negligence, and it was established at the trial that the negligence of each of the defendant drivers was a contributing legal cause of the plaintiff's injuries. In response to special interrogatories submitted by the trial court, the jury found that as to the negligence of the two drivers, Lincenberg's represented 15% And Rhodes' represented 85%, and the jury fixed $20,000 as the amount of damages which plaintiff was entitled to recover. The following special interrogatory verdict form was submitted to the jury:

'1. Was there negligence on the part of the Defendant, HARRY LINCENBERG, which was the legal cause of the accident?

YES / NO

------- ------- If so, state the percentage (%) of the negligence attributable to Defendant HARRY LINCENBERG.

15%

2. Was there negligence on the part of Defendants, ELEANOR RHODES and RONALD ANGELO RHODES, which was the legal cause of the accident?

YES / NO

------- -------

If so, state the percentage (%) of negligence attributable to these Defendants.

85%

3. What is the total amount of damages, if any, you find that the Plaintiff MINNIE ISSEN has sustained as a legal result of the accident?

$20,000.00 (twenty thousand 00/100)

DATE 10--24--73

/s/ William J. Eckerth

FOREMAN'

Being uncertain as to whether the judgment to be entered in favor of the plaintiff should be charged against the defendants in the percentages above-stated or charged in full against the several defendants, the trial judge certified the following question to the District Court of Appeal, Third District:

'Where the plaintiff, in an automobile injury accident case sues two defendants, alleging both to be negligent resulting in injuries to the plaintiff, is it proper for the trial judge to allow the jury to apportion fault as it sees fit between the negligent defendants, therefore, was it proper in a case wherein the plaintiff sued two defendants, alleging each negligently operated to instruct the jury to apportion fault and submit the foregoing special interrogatories to the jury?'

The District Court answered this question in the negative and opined:

'The doctrine of comparative negligence (Hoffman v. Jones, Fla.1973, 280 So.2d 431) is not applicable between defendant joint tort-feasors. The doctrine is one which is applied between a damage claimant and a defendant (or defendants), that is, in an action where negligence of a plaintiff, on the one hand, and negligence of a defendant (or defendants) on the other hand, have contributed to constitute legal cause of the plaintiff's injury or loss.

'In the law of Florida (subject to certain exceptions not applicable here) there is no contribution between joint tort-feasors. (Footnote: Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316; Kellenberger v. Widener, Fla.App.1963, 159 So.2d 267; Westinghouse Electric Corp. v. J. C. Penney Co., Fla.App.1964, 166 So.2d 211; Aircraft Taxi Co. v. Perkins, Fla.App.1969, 227 So.2d 722; Stembler v. Smith, Fla.App.1971, 242 So.2d 472.). The Supreme Court appears to have recognized the continued existence of that rule notwithstanding adoption of the doctrine of comparative negligence, in Hoffman v. Jones, supra (280 So.2d at 439).

'Moreover, in this case where the plaintiff was not guilty of any negligence contributing to cause her injuries, the doctrine of comparative negligence was not involved. The plaintiff was entitled to judgment against the defendants for the damages awarded to her by the jury verdict.'

This Court granted certiorari to review the instant decision of the District Court because of the direct conflict with Hoffman v. Jones, 280 So.2d 431 (Fla.1973), wherein this Court adopted the doctrine of comparative negligence.

In Hoffman v. Jones, supra, this Court opined that contemporary conditions must be met with contemporary standards which are realistic and better calculated to obtain justice among All the parties involved, based upon the circumstances applying between them at the time in question and explicitly stated:

'Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on (the) fault premise.

'When the negligence of more than one person contributes to the occurrence of an accident, each person should pay the proportion of the total damages he has caused the other party.'

Therein, this Court specifically declared that in the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault. Relative to the argument against judicial derogation of common law, this Court in Hoffman, supra, at 435, explained that 'Even if it be said that the present bar of contributory negligence is a part of our common law by virtue of prior judicial decision, it is also true from Duval (Duval v. Thomas, 114 So.2d 791 (Fla.1959)) that the Court may change the rule where great social upheaval dictates. It has been modified in many instances by judicial decision, such as those establishing the doctrine of 'last clear chance', 'appreciable degree' and others.'

Petitioner urges that in view of the rationale of this Court in Hoffman, supra, social policy and equity dictate that this Court adopt a rule of apportionment among joint tortfeasors whereby the jury would determine the proportional percentage of causal negligence of each of the joint tortfeasors. The principal contention of respondents is that in Florida there can be no contribution between joint tortfeasors and that the judicial adoption of the principles of comparative negligence does not require a change in the law of Florida to permit apportionment or contribution among joint tortfeasors.

Initially, we are compelled to elucidate on the questioned continued viability and compatibility of the principle of no contribution among joint tortfeasors, a doctrine to which the courts in Florida have been committed in negligence suits although significantly we must note that various exceptions have been created to alleviate the harshness of this rule. See: Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Westinghouse Elec. Corp. v. J. C. Penney Co., 166 So.2d 211 (Fla.App.1964); Kellenberger v. Widener, 159 So.2d 267 (Fla.App.1963); Stembler v. Smith, 242 So.2d 472 (Fla.App. 1, 1970); Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.App. 3, 1969); and Stuart v. Hertz, 302 So.2d 187 (Fla.App. 4), Opinion filed September 27, 1974. Pertinent to the exceptions created to the rule against contribution, the Court of Appeals of New York in Dole v. Dow Chemical, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), opined:

'It has been observed that the doctrine of indemnity 'evolved in the unnatural surroundings of an inflexible rule against contribution' and that courts have relied on 'artificial distinctions' such as 'active-passive' and 'misfeasance-nonfeasance' (65 Col.L.Rev. 123, 126, op. cit.).

'One of the first studies made by the New York Law Revision Commission was on this subject (1936 Report, pp. 703--747) followed almost 20 years later by a further study in depth of the problem and of the direction of decisional law (1952 Report, pp. 21--63).

'The earlier study noted the refusal to allow contribution among joint tort-feasors was 'of doubtful validity even in the most extreme case' (p. 720). The 1952 study observed what seems manifest in the willingness of the court to ameliorate an injustice by the 'passive-active' concept, that essentially what had happened is the recognition by the court of a discernible 'difference in the degree of the wrong committed' (p. 54).'

The principle of no contribution had its inception in the English case of Merryweather v. Nixan, 8 Term.Rep. 186, 101 Eng.Rep. 1337 (K.B.1799), and was based on the principle 'in pari delicto potior est conditio defendentis,'--no man can...