Clark v. Brooks

• Decision Date: 01 August 1977
• Citation: 377 A.2d 365
• Parties: Elena M. CLARK et al., Plaintiffs, v. Thomas R. BROOKS, M.D., et al., Defendants.
• Court: Delaware Superior Court

Page 365

377 A.2d 365

Elena M. CLARK et al., Plaintiffs, v. Thomas R. BROOKS, M.D., et al., Defendants.

Superior Court of Delaware, New Castle County.

Submitted May 4, 1977.

Decided Aug. 1, 1977.

ON MOTION OF DEFENDANT BLACKSHEAR FOR SUMMARY JUDGMENT.

Gerald Z. Berkowitz, Knecht, Greenstein & Berkowitz, Wilmington, for plaintiffs.

F. Alton Tybout, and Michael F. McGroerty, Tybout & Redfearn, Wilmington, for defendant Blackshear.

Rodney M. Layton, and Jane R. Roth, Richards, Layton & Finger, Wilmington, attorneys for defendant Brooks.

TAYLOR, Judge.

Plaintiff asserted a personal injury claim against the Wilmington Medical Center (Medical Center), Dr. Thomas E. Brooks, a staff surgeon supervisor of surgery, and Dr. Charles Blackshear (defendant), a senior resident, based on surgery performed on plaintiff by Dr. Blackshear. Plaintiff contends that the surgery was negligently performed in that an artery was punctured during the surgery, and that defendants failed to treat plaintiff's condition to reverse and minimize the damage and hazard which followed the alleged negligent surgery.

Prior to filing suit, plaintiff reached a settlement with Medical Center. In connection with that settlement, plaintiff executed a release which was entitled "Joint Tort Feasor Release" releasing all of plaintiff's claims against Medical Center. The release further provides that:

"This release shall reduce to the extent of the pro rata share of the releasee any damages recoverable by the releasor(s) against any other person whatsoever who was or might be liable to the releasor(s) as a result of the said injury or damages referred to above . . ."

Subsequent to the settlement with Medical Center, plaintiff brought this action against Dr. Brooks and Dr. Blackshear. Dr. Blackshear has moved for summary judgment on the ground that the release of the employer bars recovery against the employee.

I

Plaintiff contends that the release of the employer does not release the employee, particularly in view of 10 Del.C. § 6304, which provides that a release of one tortfeasor does not release another tortfeasor except to the extent of the consideration for the release. For purposes of this motion it is assumed that Medical Center's liability arose solely as employer of Drs. Brook and Blackshear and that they were acting as employees of Medical Center in this matter.

10 Del.C. Chapter 63 establishes with respect to tortfeasors certain standards of recovery which were unknown at common law. ^* 10 Del.C. § 6301 defines joint tortfeasors as "persons jointly or severally liable in tort for the same injury to person or property". The statutory definition of "joint tortfeasors" differs from the common law definition. At common law the status of joint tortfeasor arose where there existed joint or concurring negligence. Ferguson v. Davis, Del.Super., 9 Terry 299, 102 A.2d 707 (1954); Lutz v. Boltz, Del.Super., 9 Terry 197, 100 A.2d 647 (1953); DiStefano v. Lamborn, Del.Super., 7 Terry 195, 81 A.2d 675 (1951); 9 ULA 230-1. Under the Act, the status of joint tort feasor turns on joint and several liability. Ibid.

The Act modified the common law in several respects. It created a right of contribution. § 6302. It recognized that recovery of a judgment against one joint tortfeasor does not discharge other joint tortfeasors. § 6303. It provided that a release by an injured person of one joint tortfeasor does not release other joint tortfeasors "unless the release so provides," but the injured party's claim against other joint tortfeasors is reduced by the amount given for the release. § 6304. By way of clarification it provided that any right of indemnity as it existed prior to the Act is not impaired by the Act. § 6305.

The most widely acclaimed achievement of the Act was its abolition of the common law barrier to the sharing of liability based on the relative degree of wrongdoing among those responsible for a single injury. 9 ULA 230-1; 10 Del.C. § 6302. However, the Act also abolished the harsh common law rule which barred an injured party who had released one tortfeasor from liability for the injury from pursuing an action against another tortfeasor for any additional damages which the party's injuries warrant. 10 Del.C. § 6304.

The most startling change made by the Act was to provide a remedy of contribution among tortfeasors. Most of the decisions which discuss the Act have dealt with the question of when a tortfeasor may recover from another tortfeasor. See Mumford v. Robinson, Del.Supr., 231 A.2d 477 (1965); Fields v. Synthetic Ropes, Inc., Del.Supr. 215 A.2d 427 (1967); Lutz v. Boltz, supra; Lutz v. Boas, 40 Del.Ch. 130, 176 A.2d 853 (1961). This suit is not between tortfeasors. This suit is by the injured plaintiff against two tortfeasors after a release has been given to their employer. It involves the applicability of the release provision of the Act. Accordingly, the discussion in this Opinion will not deal with the question of the right of contribution; rather, it will focus on the effect of the release on plaintiff's claim against the employee-doctors.

Prior to its enactment of the Uniform Contribution Among Tortfeasors Act, 10 Del.C. Ch. 63, Delaware accepted the common law rule that where more than one tortfeasor has contributed to the injuries of a plaintiff the release of one tortfeasor barred recovery from the other tortfeasor. Balick v. Philadelphia Dairy Products Co., Del.Super., 5 W.W.Harr. 269, 162 A. 776 (1932); Raughley v. Delaware Coach Co., Del.Super., 8 Terry 343, 91 A.2d 245 (1952). ¹

No Delaware case has been cited which applied the same rule with respect to a claim where the relationship of the actual or prospective defendants was that of employer-employee. It is recognized that the majority of states which have decided the question under common law have held that the release of either the employer or the employee has the effect of releasing the other even though the release made no mention of such release and the parties did not in fact intend to accomplish such release. 92 A.L.R.2d 540-5; 126 A.L.R. 1199-1207.

According to the annotation in 126 A.L.R. 1199-1207, the earliest reported application of this rule in this country was in Brown v. City of Cambridge, Mass.Supr.Jud.Ct., 85 Mass. (3 Allen) 474 (1862). The following language in Brown gives an insight into the reasoning upon which the rule was founded:

"The defendants contend that the legal effect of this transaction is to discharge them also, and we are of opinion that it has that effect. It is an ancient doctrine that a release to one joint trespasser, or a satisfaction from him, discharges the whole. Cocke v. Jennor, Hob. 66. Co. Litt. 232 a. The same doctrine applies to all joint torts, and to torts for which the injured party has an election to sue one or more parties severally. Where, for example, a master is liable for the tort of his servant, a satisfaction from one discharges both, though they cannot be sued jointly. If it were not so, a party having a claim against several persons on account of a single tort might sue one and settle the suit, receiving damages; he might then sue another and settle in the same way, and repeat the proceeding as to all but one, and then sue him and recover the whole damage, as if nothing had been paid by the others. A door would thus be opened to a class of speculations that do not deserve encouragement. The rule of law which makes one satisfaction or release a bar to further claims for the same tort is founded in good reason."

Thus, the master and servant relationship was brought under the same rule which had been applied to common law joint tortfeasors because the Court found them indistinguishable. Brown the progenitor of the holdings in the United States, shows that the primary justification for extending the benefit of the release to one who was not named in or directly concerned with the release was the desire to prevent unjust enrichment to the injured party rather than upon a consideration of the relationship between those who had potential liability to the injured party. In Balick v. Philadelphia Dairy Products Co., supra, this Court was able to deal with the problem of unjust enrichment without barring suit against one tortfeasor where a covenant not to sue another joint tortfeasor had been given.

Prosser, Law of Torts 301-5 discusses the fallacy of this unjust enrichment argument as a basis for extending the benefit of a release to those who were not specifically intended to be benefitted by the release. He shows that the modern and proper answer to this contention is to require the consideration for the release be applied to reduce the total recovery to which plaintiff is entitled for his injuries. 4 Restatement of Torts § 885, pp. 460-3 departs to some extent from the common law by permitting a release to limit its effect on other tortfeasors by express language contained in the release.

It is understandable that since the common law treated joint tortfeasors (as defined at common law) and employer-employee as indistinguishable in applying the common law rule as to the effect of a release, so also might the statutory modification of that rule treat them as indistinguishable for that purpose.

When corrective legislation was considered dealing with the subject of recovery between those who are liable to an injured party, the Commissioners on Uniform Laws adopted a definition which looked to the relationship between the wrongdoer and the injured party. 9 ULA p. 233. ²

Under the definition of the Uniform Act the only requirement for eligibility under the Act is that the persons "jointly or severally (be) liable in tort for the same injury to the person or property". Under this definition the relationship among themselves of those liable to the injured party or a common basis of liability is not a factor. The terminology used in the Uniform Act, according to the Commissioners' Note, was intended to...