Weidenfeller v. Star & Garter

Decision Date21 November 1991
Citation2 Cal.Rptr.2d 14,1 Cal.App.4th 1
PartiesAllen V. WEIDENFELLER, Plaintiff and Respondent, v. STAR AND GARTER, et al., Defendants and Appellants. Allen V. WEIDENFELLER, Plaintiff and Appellant, v. STAR AND GARTER, et al., Defendants and Respondents. D011485, D011599.
CourtCalifornia Court of Appeals Court of Appeals

Douglas R. McCorquodale and Deborah J. Stare, San Diego, for defendants.

WIENER, Acting Presiding Justice.

Plaintiff Allen Weidenfeller, the victim of an unprovoked armed assault in the parking lot of the Star & Garter bar in East San Diego, sued Star and Garter and the owners of the bar, Floyd Andeel and Triple A Corporation 2, alleging defendants' failure to provide adequate lighting and a security presence were substantial factors in causing his injuries. The jury agreed with Weidenfeller finding Star and Garter's negligence in managing its premises proximately caused Weidenfeller's injuries. The jury also found Weidenfeller suffered economic damages of $122,500 and non-economic damages of $250,000 attributing 75 percent fault to the assailant Vernon De Charles Broughton, 20 percent to Star and Garter, and 5 percent to Weidenfeller. Pursuant to California Civil Code section 1431.2 3 the court used these percentages to reduce the non-economic damage award to $50,000 (20 percent of $250,000) and the economic damage award to $116,375 (95 percent of $122,500). Judgment was entered for $166,375 plus interest and costs.

Star and Garter appeals asserting it owed no duty to Weidenfeller, there was insufficient evidence to establish the requisite breach of duty or causation and the court made prejudicial evidentiary errors. Weidenfeller cross-appeals contending the court should not have applied Civil Code section 1431.2 in a manner which eliminated the 75 percent fault attributable to the assailant's intentional conduct in computing Weidenfeller's non-economic damages. As we shall explain we reject these arguments and affirm the judgment.


I.-III. *



Civil Code section 1431.2, subdivision (a) provides a defendant is liable for non-economic damages only in direct proportion to its fault. Weidenfeller contends the court erred in applying section 1431.2 here, pointing to the statutory language which renders the section applicable only to actions "for personal injury, property damage, or wrongful death, based upon principles of comparative fault ..." (§ 1431.2, subd. (a), emphasis added.) Weidenfeller says this is not an action "based upon comparative fault " because Broughton's conduct was intentional. Comparative fault principles, he argues, are inapplicable whenever one party, as here, acted intentionally.

Our obligation is to interpret the statute "to effectuate the purpose of the law." (See Santa Barbara County Taxpayers Assn. v. County of Santa Barbara (1987) 194 Cal.App.3d 674, 681, 239 Cal.Rptr. 769.) "[S]tatutes must be construed in a reasonable and common sense manner consistent with their apparent purpose and the legislative intent underlying them--one practical, rather than technical, and one promoting a wise policy rather than mischief or absurdity." (Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334, 338, 189 Cal.Rptr. 450.) 9

Respectfully we think Weidenfeller's myopic view of the statute focussing on its words rather than its purpose distorts the meaning of section 1431.2. According to Weidenfeller the statute has a limited effect benefitting a negligent tortfeasor only where there are other equally culpable defendants, but eliminating that benefit where the other tortfeasors act intentionally. Stating the proposition reflects its absurdity. It is inconceivable the voters intended that a negligent tortfeasor's obligation to pay only its proportionate share of the non-economic loss, here 20 percent, would become disproportionate increasing to 95 percent solely because the only other responsible tortfeasor acted intentionally. To penalize the negligent tortfeasor in such circumstances not only frustrates the purpose of the statute but violates the common sense notion that a more culpable party should bear the financial burden caused by its intentional act.

This latter concept that the intentional actor bear full responsibility for its act is reflected in the Legislature's enactment of Code of Civil Procedure section 875 et seq. permitting contribution between negligent tortfeasors, but precluding contribution for "any tortfeasor who has intentionally injured the injured person." (Code Civ.Proc., § 875 subd. (d).) The California Supreme Court has also emphasized that the purpose of section 1431.2 is to prevent the unfairness of requiring a tortfeasor who is only minimally culpable as compared to the other parties to bear all the damages. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198, 246 Cal.Rptr. 629, 753 P.2d 585.)

Weidenfeller's hypertechnical interpretation of section 1431.2 would also require we read the cases upon which he relies Allen v. Sundean (1982) 137 Cal.App.3d 216, 186 Cal.Rptr. 863 and Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 180 Cal.Rptr. 95) out of context. We decline to do so.

In Allen v. Sundean the court held a defendant found to have acted intentionally could not obtain partial indemnity from a negligent joint tortfeasor. Similarly, Godfrey v. Steinpress held a plaintiff's contributory negligence is not a defense to an intentional tort and therefore ruled the trial court correctly refused to instruct on comparative negligence with respect to the plaintiff's fraud and intentional infliction of emotional distress claims.

Godfrey and Allen, therefore, stand for the proposition that an intentional actor cannot rely on someone else's negligence to shift responsibility for his or her own conduct. These cases reflect the common law determination that a party who commits intentional misconduct should not be entitled to escape responsibility for damages based upon the negligence of the victim or a joint tortfeasor. (See Bartosh v. Banning (1967) 251 Cal.App.2d 378, 59 Cal.Rptr. 382; see Prosser and Keeton, Torts (5th ed. 1984) § 65, p. 462 [Intentional "conduct differs from negligence ... in the social condemnation attached to it."] ) It is in this context that we must examine Allen's statement upon which Weidenfeller relies that intentional torts appear to be excluded from the comparative fault system. (Allen v. Sundean, supra, 137 Cal.App.3d at p. 226, 186 Cal.Rptr. 863.)

In context this statement does not mean that section 1431.2 never applies to both intentional and negligent tortfeasors. Unlike Godfrey and Allen this is not a case where the intentional actor is attempting to shift its financial burden to a negligent party. We have the converse situation where the injured party is attempting to transfer the intentional actor's responsibility to the negligent tortfeasor. There is no principled basis on which we can interpret the statute in this manner. 10 We therefore hold the court properly applied section 1431.2, subdivision (a).


Weidenfeller additionally argues application of section 1431.2 here contravenes public policy because it limits a plaintiff's opportunity to obtain full recovery. The Supreme Court recently rejected similar arguments concerning section 1431.2 generally. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1198, 246 Cal.Rptr. 629, 753 P.2d 585.) In so ruling, the Evangelatos court recognized that a legitimate "consequence of the statute[ ] ... will be that persons who are unfortunate enough to be injured by an insolvent tortfeasor will not be able to obtain full recovery for their noneconomic losses, ..." (Id. at p. 1204, 246 Cal.Rptr. 629, 753 P.2d 585.)

Weidenfeller fails to explain why the situation here requires us to reach a different conclusion. Even if it were true, as Weidenfeller asserts, that an intentional tortfeasor generally has less financial resources than an unintentional tortfeasor, this does not render section 1431.2 so inequitable as to be against public policy. As explained by the Supreme Court, "[u]nder any tort liability scheme, a plaintiff who is injured by a single tortfeasor who proves to be insolvent is, of course, worse off than a plaintiff who is injured by a single tortfeasor who can pay an adverse judgment." (Evangelatos, supra, 44 Cal.3d at p. 1204, 246 Cal.Rptr. 629, 753 P.2d 585.)

We likewise reject Weidenfeller's suggestion that application of section 1431.2 is against public policy because it would fail to effectively deter negligent tortfeasors. Negligent actors remain liable for all economic damages and for non-economic damages in proportion to their fault. Moreover, a legitimate purpose of the code section is to deter the more culpable defendant. The fact that Weidenfeller disagrees with the statute's effectiveness to reach that goal does not render the statute against public policy. 11


Weidenfeller further argues application of section 1431.2 here violated his due process rights because the jury had no standard under which it could compare intentional misconduct to ordinary negligence. 12 But in an analogous context, the California Supreme Court has found juries to be "fully competent to apply comparative fault principles between negligent and strictly liable defendants." (See Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 331, 146 Cal.Rptr. 550, 579 P.2d 441.) The jury here found defendants to be a substantial factor in causing Weidenfeller's injuries, but apportioned most of the fault to the individual who actually pulled the trigger. This verdict reflects the jury applied a proper standard and understood fully how to compare the tortfeasors' conduct.

Weidenfeller additionally contends application of section 1431.2 when an intentional tortfeasor is...

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