Bartlett v. New Mexico Welding Supply, Inc.

• Decision Date: 02 March 1982
• Docket Number: No. 5361,5361
• Citation: 98 N.M. 152,1982 NMCA 48,646 P.2d 579
• Parties: Jane BARTLETT and Floyd Bartlett, her husband, Plaintiffs-Appellees, v. NEW MEXICO WELDING SUPPLY, INC., a New Mexico corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 579

646 P.2d 579

98 N.M. 152

Jane BARTLETT and Floyd Bartlett, her husband, Plaintiffs-Appellees, v. NEW MEXICO WELDING SUPPLY, INC., a New Mexico corporation Defendant-Appellant.

No. 5361.

Court of Appeals of New Mexico.

March 2, 1982.

Certiorari Denied June 17, 1982.

Lowell Stout, Stout & Stout, Hobbs, and Sarah M. Singleton, Singleton & Roberts-Hohl, Santa Fe, for defendant-appellant

B. G. Davis, Dick A. Blenden, Paine, Blenden, Diamond & Davis, Carlsbad, for plaintiffs-appellees.

OPINION

WOOD, Judge.

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 non-party 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.

Joint and Several Liability

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. See, Salazar v. Murphy, 66 N.M. 25, 340 P.2d 1075 (1959); Trefzer v. Stiles, 56 N.M. 296, 243 P.2d 605 (1952). It is not disputed that this is a common law rule which existed in New Mexico prior to Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), 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. See, Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Beal v. Southern Union Gas Company, 62 N.M. 38, 304 P.2d 566 (1956); Downing v. Dillard, 55 N.M. 267, 232 P.2d 140 (1951); Compare, City of Artesia v. Carter, 94 N.M. 311, 610 P.2d 198 (Ct.App.1980); Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (Ct.App.1977). 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. As an example, compare Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis.2d 321, 227 N.W.2d 444 (1975), and Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), with Stannard v. Harris, 135 Vt. 544, 380 A.2d 101 (1977). See also, Simonsen v. Barlo Plastics Co., Inc., 551 F.2d 469 (1st Cir. 1977). As to the variety in results reached, see generally, Schwartz, Comparative Negligence, ch. 16 on Multiple Parties.

Claymore, supra, footnote 11, cites four states which have adopted pure comparative negligence. Each of those states has considered whether joint and several liability should continue to apply. We examine their decisions.

(a) Florida

Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), held that the Uniform Contribution Among Joint Tortfeasors Act, enacted during the pendency of the appeal, "retains the full, joint, and several liability of joint tortfeasors to the plaintiff, and provides for contribution between" the joint tortfeasors. Such reasoning cannot be applied to the New Mexico statute.

The Commissioners' Prefatory Note to the 1955 revision of the Uniform Act, 12 Uniform Laws Annotated (Master ed. 1975), p. 59, points out that New Mexico adopted the Act in 1947, and that the Act applied to persons whose liability was established. The Act does not purport to determine whether a person is jointly and severally liable to a plaintiff. The prefatory note states: "This uniform act establishes the right of a person liable for damages for an unintentional wrong to compel others, who are liable with him for the same damages, to share in discharging the common liability * * *. This act would distribute the burden of responsibility equitably among those who are jointly liable(.)" (Our emphasis.)

Section 41-3-1, N.M.S.A.1978, defines joint tortfeasors to mean "persons jointly or severally liable in tort for the same injury"; Section 41-3-1 does not state when a person is jointly or severally liable. New Mexico's statute involves the relationship among joint tortfeasor defendants and not the relationship between defendants and plaintiffs. Commercial U. Assur. v. Western Farm Bur. Ins., 93 N.M. 507, 601 P.2d 1203 (1979). The goal of New Mexico's statute is equity among tortfeasors. Aalco Mfg. Co. v. City of Espanola, 95 N.M. 66, 618 P.2d 1230 (1980).

The issue is whether defendant, responsible for 30% of the damage, must pay 100% of the damage. The right to contribution between defendant and the unknown driver does not answer that issue.

(b) Michigan

Weeks v. Feltner, 99 Mich.App. 392, 297 N.W.2d 678 (1980), held that the doctrine of comparative negligence did not mandate the abandonment of joint and several liability. Defendants contended "that comparative negligence requires that a defendant only be liable to the extent of his own wrongdoing, not only in relation to the plaintiff, but in relation to other defendants as well." The response, in Weeks, supra, was:

This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the fault of his codefendants, this is equally true of cases where the plaintiff is not at fault.

The Weeks, supra, decision, in favoring a plaintiff, seems to disregard statements in the Michigan opinion adopting comparative negligence, Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). Those statements are (1) that pure comparative negligence most nearly accomplishes the goal of a fair system of apportioning damages, and (2) "(w)hat pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice." (Our emphasis.) To hold a person liable for an amount greater than the extent that person caused injury is contrary to the statements in Placek, supra.

Discussing the Kansas comparative negligence statute, Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), states:

The legislature intended to equate recovery and duty to pay to degree of fault. Of necessity, this involved a change of both the doctrine of contributory negligence and of joint and several liability. There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or...