Asbestos Litigation Pusey Trial Group v. Owens-Corning Fiberglas Corp.
| Decision Date | 12 September 1995 |
| Docket Number | OWENS-CORNING,Nos. 405,1994 and 411,410,1994,s. 405 |
| Citation | 669 A.2d 108 |
| Parties | Prod.Liab.Rep. (CCH) P 14,394 In re ASBESTOS LITIGATION PUSEY TRIAL GROUP; Ann M. North, Individually and as Administratrix of the Estate of William P. North, Sr., deceased; Patricia Piorko, as Administrator of the Estate of Frank Piorko, Sr., deceased; Nancy B. Pusey, Individually and as Executrix of the Estate of Marquis Pusey, deceased; Plaintiffs Below, Appellants, Cross-Appellees, v.FIBERGLAS CORPORATION, Defendant Below, Appellee, Cross-Appellant.FIBERGLAS CORPORATION, Defendant Below, Appellant, v. Ann M. NORTH, Individually, and as Administratrix of the Estate of William P. North, Sr., deceased, Plaintiff Below, Appellee.FIBERGLAS CORPORATION, Defendant Below, Appellant, v. Patricia PIORKO, Individually and as widow of Frank Piorko, Sr., as Administrator of the Estate of Frank Piorko, Sr., deceased, Plaintiff Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Court Below--Superior Court of the State of Delaware, in and for New Castle County C.A. No. 90C-03-18.
Court Below--Superior Court of the State of Delaware, in and for New Castle County C.A. No. 90C-JL-173.
Court Below--Superior Court of the State of Delaware, in and for New Castle County C.A. No. 86C-SE-57.
Upon appeal from the Superior Court. REVERSED.
Thomas C. Crumplar (argued), Mary Ann Matuszewski and Marla Rossoff Eskin, Jacobs & Crumplar, P.A., Wilmington, for Appellants/Cross-Appellees.
Armand J. Della Porta, Jr. and Kelly J. Sasso, Kelley, Jasons, McGuire & Spinelli, Wilmington, and William G. Ballaine (argued), Stephen Jacobs and Michael J. Schwab, Siff Rosen P.C., New York City, for Appellee/Cross-Appellant, Owens-Corning Fiberglas Corporation.
Before VEASEY, C.J., WALSH and HOLLAND, JJ.
These proceedings are appeals and cross-appeals arising from judgments entered in the Superior Court against the defendant, Owens-Corning Fiberglas Corporation ("OCF"). The judgments were in favor of Nancy B. Pusey, individually and as Executrix of the Estate of Marquis Pusey, Ann M. North, individually and as Administratrix of the estate of William P. North, Sr., and Patricia Piorko, individually and as Administrator of the Estate of Frank Piorko. The complaints alleged that the decedents died as a result of lung cancer resulting from exposure to asbestos-containing insulation products ("ACPs"). The answer of OCF asserted that the lung cancer was caused by the decedents' contributory negligence in smoking cigarettes.
The jury found that OCF's negligence proximately caused the deaths of Messrs. Pusey, North, and Piorko. It awarded compensatory damages in the form of survival action damages, damages for loss of consortium, and wrongful death damages. With regard to the compensatory damages, the jury apportioned fault between OCF and some of the settling defendants. 1 The jury also determined that a substantial percentage of the decedents' lung cancer damages were attributable to cigarette smoking. The Superior Court reduced the compensatory damage awards by the percentage the jury attributed to cigarette smoking. The jury also concluded that OCF had been recklessly indifferent to Mr. Pusey's rights and awarded punitive damages. The Superior Court vacated the punitive damage award on public policy grounds.
In this appeal, the plaintiffs seek: (1) to set aside the reduction of damages based on the decedents' cigarette smoking; (2) to set aside the jury's apportionment of fault to the settling defendants; and (3) to reinstate the jury's punitive damage award. In its cross-appeals, OCF challenges: (1) the Superior Court's failure to allow the jury to consider the decedents' cigarette smoking as contributory negligence; (2) the magnitude of all awards for certain marital and household services; and (3) the jury's apportionment of certain compensatory damages in each case without regard to the decedents' cigarette smoking.
This Court has concluded that the plaintiffs' first challenge is meritorious. The Superior Court erred, as a matter of law, when the jury was instructed that the damages it awarded would be reduced by the percentage of harm it found attributable to cigarette smoking, in the absence of a prerequisite finding of contributory negligence. This Court has also concluded that OCF correctly asserts that the Superior Court erred by not submitting the issue of contributory negligence to the jury. The judgments of the Superior Court must be reversed. 2 The other issues raised on appeal will be addressed only briefly since new trials will be necessary.
It is well-established that there may be more than one proximate cause of an injury. Culver v. Bennett, Del.Supr., 588 A.2d 1094 (1991). See e.g., McKeon v. Goldstein, Del.Supr., 164 A.2d 260, 262 (1960). Proximate cause is "that direct cause without which the accident would not have occurred." Culver v. Bennett, 588 A.2d at 1097. When the two causes of an injury are alleged to be the defendant's negligence and the plaintiff's contributory negligence, the issues of proximate cause, with respect to both the defendant's negligence and the plaintiff's contributory negligence are examined in terms of the "but for" rule. Id.
[T]he negligence of a defendant standing alone is not sufficient to constitute legal liability, nor is the negligence of a plaintiff standing alone sufficient to deny ... a recovery. In both instances the negligence complained of must be the sole or one of the proximate causes, ... [meaning] that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.
Culver v. Bennett, 588 A.2d at 1097 (quoting James v. Krause, Del.Super., 75 A.2d 237, 241 (1950)) (emphasis added).
In this case, the Superior Court's instructions regarding negligence and proximate cause made reference only to OCF and the settling defendants.
Thus, if you find that the defendant [OCF] and one or more of "the companies" [settling defendants] breached a duty to plaintiffs and that breach proximately caused the plaintiffs' [decedents'] injuries, you will determine the degree of fault of the defendant [OCF] and of each "company" [settling defendant].
The expert witnesses for the plaintiffs and OCF testified that cigarette smoking was one of the proximate causes of the decedents' lung cancer. In fact, OCF's experts testified that cigarette smoking was the sole proximate cause of the decedents' lung cancer. The Superior Court, however, refused to instruct the jury regarding the issue of the contributory negligence of the decedents. In view of the experts' testimony, this Court has concluded that the Superior Court erred by not instructing the jury on the issue of the decedents' contributory negligence, due to cigarette smoking, as a proximate cause of their lung cancer. McNally v. Eckman, Del.Supr., 466 A.2d 363, 370-71 (1983). Cf., Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, Del.Supr., 596 A.2d 1372 (1991). Accord Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118-1122 (1989); Brisboy v. Fibreboard, 429 Mich. 540, 418 N.W.2d 650 (1988).
In 1984, Delaware enacted a modified comparative negligence statute. 10 Del.C. § 8132. That statute provides:
In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
10 Del.C. § 8132 (emphasis added).
Pursuant to Delaware's modified comparative negligence statute, if the plaintiff's contributory negligence is 51% or greater, it is an absolute bar to recovery. Culver v. Bennett, 588 A.2d at 1098. If the plaintiff's contributory negligence is 50% or less, however, the plaintiff is permitted to recover, although the recovery of damages is reduced proportionally. Id. The Delaware comparative negligence statute unequivocally makes an attribution of negligence to the plaintiff a condition precedent to a denial or proportionate reduction in the damages the plaintiff would otherwise receive.
The Superior Court compounded the error of not giving a contributory negligence instruction. Without a predicate finding of each decedent's negligence, the jury was, nevertheless, instructed that the damages it awarded would be reduced by the percentage of "causation" it attributed to each decedent's cigarette smoking:
In this case it is contended by the parties as to Mr. North, Mr. Piorko and Mr. Pusey that their lung cancers have been caused by cigarette smoking and asbestos exposure or one or the other. Damages for harm are to be apportioned among two or more causes where there are distinct harms or there is a reasonable basis for determining the contribution of each cause to the harm.
If you find that both cigarette smoking and asbestos exposure proximately caused the lung cancers in Mr. North, Mr. Piorko, or Mr. Pusey, or all of them, then you must apportion the damages for that lung cancer or cancers.
To do this, you must first determine an amount that would fully compensate that plaintiff for his injury. Then you must determine what percentage of that injury was caused by asbestos exposure and what percentage was caused by cigarette smoking. The plaintiff will not be compensated for the percentage you find to be caused by smoking.
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