Superior Court Holds Fair Share Act Does Not Apply If Plaintiff is Not Found Liable (PA)
In Spencer v. Johnson, 2021 WL 1035175 (Pa. Super. Mar. 18, 2021), the Pennsylvania Superior Court issued an opinion with serious implications on the interpretation of the Fair Share Act. By way of background, Pennsylvania courts had previously long adhered to the doctrine barring recovery for contributory negligence, which held that if a plaintiff’s own negligence contributed even 1% to his injuries, he/she was completely barred from holding any other party liable. In 1976, the Legislature enacted the Comparative Negligence Act, which replaced this harsh law of contributory negligence by allowing a partially negligent plaintiff to recover from negligent defendant(s), provided that his/her negligence was not greater than that of the defendants. Under comparative negligence, a plaintiff’s recovery would be reduced by the percentage of his own negligence. However, under the doctrine of joint and several liability, the plaintiff could recover the full amount of the allowed recovery against any defendant against whom the plaintiff was not barred from recovery, even one who was only 1% liable. Then, in 2011, Pennsylvania adopted the presently prevailing law, the Fair Share Act, which modified joint and several liability so that, except in certain cases, only a defendant who has been found at least 60% liable could be held responsible for paying the entire verdict.
In the most recent case addressing the Fair Share Act, Plaintiff, Keith Spencer, was seriously injured when he was struck by a vehicle driven by Cleveland Johnson (“Cleveland”) while walking in a marked crosswalk in West Philadelphia. Cleveland was intoxicated at the time of the accident. The vehicle he was driving was owned by Philadelphia Joint Board Workers United, SIEU (“PJB”), who employed Cleveland’s wife, Tina. PJB provided Tina with the vehicle as a company car, because she worked as an organizer and business representative for the union and needed to be available at any hour day or night. Evidence showed that Cleveland had driven Tina’s vehicle in the past, but that Tina was unaware that he was driving it at the time of the accident. On the day of the accident, she had driven the vehicle to her mother’s house, and unbeknownst to her, Cleveland had retrieved her keys and was attempting to move the car to an empty parking space when the accident occurred. Spencer’s Complaint asserted claims of: (1) Negligence against Cleveland; (2) Negligence against Tina; (3) Negligence/Negligent Entrustment against Tina; (4) Negligence/Negligent Entrustment against PJB; and (5) Negligent Hiring, Negligent Retention, and Negligent Supervision against PJB. The parties did not dispute that Spencer was not at fault and that Cleveland was negligent in the operation of the vehicle.
At trial, the jury awarded Spencer $683,311.47 for past medical expenses, $7,300,000 for future medical expenses, $5,000,000 for non-economic damages for a total verdict amount of $12,983,311.47. The jury allocated liability as follows: Cleveland (36%), Tina (19%), and PJB (45%). The trial court denied in part and granted in part various post-trial motions and all parties appealed.
On appeal, Spencer argued that the trial court erred when it refused to mold the entire verdict against PJB because its direct and vicarious liability (64% –based on PJB’s direct liability of 45% and it’s vicarious liability for Tina’s 19%) exceeded the 60% threshold of the Fair Share Act. Spencer argued that Tina’s negligence should be imputed to PJB because she was purportedly acting in the course and scope of her employment at the time of the accident. Although the jury made no definitive finding that Tina was acting as an employee/agent, because she was “continuously on call,” a jury could have reasonably concluded that she was acting in the course and scope of her employment when she drove the company car to her mother’s house on the day of the accident. The court concluded that the jury’s general verdict warranted a finding that PJB was vicariously liable for Tina’s negligence and therefore, the theory of joint and several liability applied because PJB’s and Tina’s combine liability exceeded the 60% threshold.
Having resolved the issue in Spencer’s favor, the court nevertheless plunged ahead in finding another basis to mold the verdict. Looking to the language of the Fair Share Act, the court observed that at the language of Section 7102(a) provides the “general rule” that a plaintiff’s contributory negligence is not a complete bar to recovery. It then provides two scenarios based upon comparing the plaintiff’s negligence with that of the defendants. First, if the plaintiff’s negligence was a greater cause of his injuries than the defendants’ negligence, then the plaintiff’s recovery is barred. Second if the defendants’ negligence was a greater cause of the plaintiff’s injuries than the plaintiff’s own negligence, then the plaintiff’s recovery against the defendant will be reduced in proportion to the amount of the plaintiff’s own negligence. The court noted that neither scenario dealt with the circumstances in this case, where there had been no allegation of a plaintiff’s own negligence, let alone no jury finding of contributory negligence. Therefore, as an alternative basis for relief, the court would have concluded that the trial court erred in applying the Fair Share Act to this case because Spencer was never alleged or found to have contributed to the accident. Thus, PJB and Tina would still be jointly and several liable for Spencer’s injury.
This holding is troublesome for several reasons. First, it reopens the possibility of a defendant found minimally liable, or even only 1% liable, being compelled pay the entire verdict if no liability is apportioned to the plaintiff. While those situations may not be common, they could be financially devastating when they do occur. Second, the court went well beyond the facts of the case and, after granting the relief requested, promulgated an alternative theory of relief that was not even sought by Spencer on appeal. As such, the court’s decision should properly be considered dicta. Third, the court’s opinion may also be deemed advisory because it was issued by only a two-judge panel. On April 1, 2021, both Tina and PJB filed Applications for Reargument en banc, and we have likely not heard the end of this issue. We shall monitor and advise.
Thanks to James Scott for his contribution to this article. Should you have any questions, please contact Tom Bracken.