DaFonte v. Up-Right, Inc., UP-RIGH

Citation828 P.2d 140,2 Cal.4th 593,7 Cal.Rptr.2d 238
Decision Date04 May 1992
Docket NumberINC,UP-RIGH,No. S022331,S022331
CourtUnited States State Supreme Court (California)
Parties, 828 P.2d 140, Prod.Liab.Rep. (CCH) P 13,159 Mark DaFONTE, a Minor, etc., Plaintiff and Appellant, v., Defendant and Appellant

Miles, Sears & Eanni and William J. Seiler, Fresno, for plaintiff and appellant.

Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Leonard Sacks, Encino, Bruce Broillet, Santa Monica, David Harney, Los Angeles, Laurence Drivon, Stockton, Roland Wrinkle, North Hollywood, Harvey R. Levine, San Diego, Leonard Esquina Baker, Manock & Jensen, Mark W. Snauffer, Cathrine E. Basham, G. Martin Tuttle, Fresno, Wunsch & George and Armen L. George, San Francisco, for defendant and appellant.

[828 P.2d 141] Philip Bruce, Sacramento, Silver, McWilliams, Stolpman, Mandel, Katzman, Krissman & Elber, Thomas G. Stolpman, Donna Silver, Wilmington, Rose, Klein & Marias, Robert B. Steinberg, David A. Rosen, Los Angeles, and Arlyn M. Egers, Studio City, as amici curiae on behalf of plaintiff and appellant.

Harvey M. Grossman, Los Angeles, Ronald A. Zumbrun, Anthony T. Caso, Deborah J. Martin, Fred J. Hiestand, Fred L. Main, Sacramento, Haight, Brown & Bonesteel, Roy G. Weatherup, Delos E. Brown and Caroline E. Chan, Santa Monica, as amici curiae on behalf of defendant and appellant.

BAXTER, Justice.

California's system of "comparative fault" seeks to distribute tort damages proportionately among all who caused the harm. However, even after judicial adoption of the comparative fault system, every culpable tort defendant, regardless of his or her degree of fault, remained "jointly and severally" liable to pay any damages attributable to the fault of others who failed to contribute their proportionate share. This rule of joint and several liability applied not only to the injured person's "economic" damages, such as medical costs and lost earnings, but to "non-economic" damages like emotional distress, pain, and suffering.

In 1986, the voters adopted Proposition 51, an initiative measure designed to modify the doctrine of joint and several liability in tort cases. Among other things, Proposition 51 added section 1431.2 to the Civil Code. 1 Section 1431.2 provides that in an action for wrongful death, personal injury, or property damage, each defendant's liability for the plaintiff's "non-economic" damages shall be several only, not joint, and that each defendant shall be liable only for the percentage of "non-economic" damages which corresponds to that defendant's proportionate share of fault.

Here we conclude that the plain language of section 1431.2 eliminates a third party defendant's joint and several liability to an injured employee for unpaid noneconomic damages attributable to the fault of the employer, who is statutorily immune from suit. The Court of Appeal erred by holding otherwise. We therefore reverse the judgment of the Court of Appeal and remand with instructions.


The pertinent facts can be briefly stated. Fifteen-year-old Mark DaFonte (Mark), an employee of Van Erickson Ranches (Van Erickson), was seriously injured on August 30, 1987, his second day of work, when his arm was drawn into the moving conveyor belt of a mechanical grape harvester he was attempting to clean by hand. Van Erickson's compensation carrier, American Insurance Company (American), paid Mark workers' compensation benefits in the amount of $23,676. Mark, his parents, and his sister sued the harvester's manufacturer, Up-Right, Inc. (Up-Right), on theories of negligence and product defect. This suit was consolidated with American's subrogation action against Up-Right to recover the workers' compensation benefits paid to Mark. 2

There was evidence that the harvester lacked both a belt guard and an accessible emergency "off" switch. A sign on the harvester warned against touching the moving machinery, but evidence indicated that Up-Right gave Van Erickson no instruction on safe methods of cleaning the belt, and that Mark had worked an overlong shift without adequate supervision.

In a special verdict, the jury allocated fault as follows: 15 percent to Mark, 45 percent to Van Erickson, and 40 percent to Up-Right. The jury found Mark's economic damages to be $355,000 and his noneconomic damages to be $300,000. The parties agreed that the total damage award of $655,000 should be reduced by 15 percent, or $98,250, the amount attributable to Mark's comparative fault. Pursuant to section 1431.2, the trial court further reduced the judgment against Up-Right by $135,000, the 45 percent of noneconomic damages attributable to the fault of Van Erickson. The trial court denied American's claim for reimbursement of workers' compensation benefits, but also declined to reduce Mark's judgment against Up-Right by any portion of the benefits he had received. The court therefore entered judgment against Up-Right in the amount of $421,750 plus costs. Mark and Up-Right both noticed appeals. 3

The Court of Appeal dismissed Up-Right's evidentiary and instructional claims. It agreed, however, that Up-Right was entitled to a full credit for workers' compensation benefits received by Mark from an employer whose proportionate share of fault exceeded the benefits paid.

The appellate court also accepted Mark's argument that the trial court had erroneously invoked section 1431.2 to preclude a full joint and several award of noneconomic damages against Up-Right. Applying the formula developed by this court in Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829, 150 Cal.Rptr. 888, 587 P.2d 684 (Associated Construction ) and Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 156 Cal.Rptr. 41, 595 P.2d 619 (Aceves ), the Court of Appeal thus recomputed the judgment against Up-Right as follows: $655,000, less $98,250 (representing Mark's 15 percent of fault), less $23,676 (representing Van Erickson's 45 percent of fault up to the total amount of compensation benefits paid).

Accordingly, the Court of Appeal entered a modified judgment in the amount of $533,074 plus costs. We granted Up-Right's petition for review, limited to the issue of joint and several liability under section 1431.2.


Before 1975, California's common law employed the traditional all-or-nothing system of tort responsibility. If the plaintiff's fault had contributed in any measure to his own injury, his recovery was barred, regardless of the fault of others. On the other hand, every defendant found somewhat responsible for an indivisible injury, no matter how slight his or her fault, was liable for all the damages incurred by the victim. An injured person could unilaterally choose which of several concurrent tortfeasors to sue, based on their ability to pay. Generally, one singled out for suit could not join other responsible parties, and the target defendant's right to contribution or indemnity from other concurrent tortfeasors was sharply restricted. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1196-1197, 246 Cal.Rptr. 629, 753 P.2d 585 (Evangelatos ); American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 591-598, 146 Cal.Rptr. 182, 578 P.2d 899 (American Motorcycle ).)

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Li ), this court eliminated the all-or-nothing doctrine of contributory negligence. Thereafter, a plaintiff's recovery against others responsible for the injury could only be reduced in proportion to his or her own share of fault.

In American Motorcycle, we concluded that Li 's comparative fault principles did not abrogate each defendant's joint and several liability for damages attributable to the fault of others. Our opinion adhered to the pre-Li principle that culpable defendants, rather than the injured plaintiff, should bear the risk of inadequate contribution by others responsible for the harm. (20 Cal.3d at pp. 588-590, 146 Cal.Rptr. 182, 578 P.2d 899.)

However, American Motorcycle took some steps to ameliorate the harshness of the joint-and-several-liability rule. Our opinion concluded that one sued for personal injury could join other concurrent tortfeasors in the original action in order to allocate proportionate responsibility, or could seek equitable indemnity from such tortfeasors in proportion to their fault. (20 Cal.3d at pp. 591-598, 604-607, 146 Cal.Rptr. 182, 578 P.2d 899.) More recent cases make clear that any share of damages attributable to an insolvent tortfeasor should be apportioned equitably among the solvent tortfeasors. (Evangelatos, supra, 44 Cal.3d at p. 1198, 246 Cal.Rptr. 629, 753 P.2d 585; see, e.g., Ambriz v. Kress (1983) 148 Cal.App.3d 963, 196 Cal.Rptr. 417; Paradise Valley Hospital v. Schlossman (1983) 143 Cal.App.3d 87, 191 Cal.Rptr. 531.)

Of course, an employer cannot be sued in tort for the work-related injury of an employee. The employer's sole liability is for benefits payable, regardless of fault, under the workers' compensation law. (Lab.Code, §§ 3602, 3864.) On the other hand, the employee may sue any other responsible person for "all damages proximately resulting" from the injury. (Id., § 3852.) In appropriate cases, the employer may also recoup workers' compensation benefits by means of reimbursement from the third party tortfeasor, a lien against the employee's third party tort recovery, or a credit against the tort judgment for benefits otherwise due to the employee in the future. (Id., § 3850 et seq.)

In earlier times, an employer's concurrent fault, however slight, barred a claim for reimbursement, lien, or credit. (Roe v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 884, 889, 117 Cal.Rptr. 683, 528 P.2d 771; Witt v. Jackson (1961) 57 Cal.2d 57, 73, 17 Cal.Rptr. 369, 366 P.2d 641.) However, in Associated Construction and Aceves, we explained how the relationship between injured employees, negligent employers, and culpable third parties must be interpreted to accommodate...

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