California’s Comparative Fault Doctrine Does not Apply to Intentional Torts

Negligent Torts are Compared in California Courts but not Damages by Intentional Torts

When I was a young adjuster in 1968 the law in California allowed for the defense of contributory negligence. If a defendant could prove that the plaintiff contributed to the accident that cause him or her injury the plaintiff recovered nothing. In 1975 California adopted a system of comparative negligence where the judgment in favor of a plaintiff was to be reduced by the percentage of negligence attributed to the plaintiff.

In B.B., a Minor, etc., et al. v. County Of Los Angeles et al., T.E., a Minor, etc., et al. v. County Of Los Angeles et al., D.B., a Minor, etc., et al. v. County Of Los Angeles et al., S250734, Supreme Court Of California (August 10, 2020) Justice Chin of the California Supreme Court, writing for the court considered the application of Civil Code section 1431.2 to tortfeasors held liable for injuries based on the commission of an intentional tort.

FACTUAL HISTORY

A distraught woman suddenly appeared in the street, pointed at Burley and yelled, “He tried to kill me!” She began to flee, and Burley ran after her. The Deputies restrained Burley who, even though restrained, was still “flinging” and “twisting” his upper body, so Aviles remained on Burley’s back, using his “upper body weight” to push down on Burley and “keep him in place.” Other deputies applied a “hobble restraint” to Burley’s legs by wrapping a nylon cord around his ankles and “cinch[ing] it tight.” A witness testified that one of the deputies hit Burley in the head “at least seven to ten times” with a flashlight, and that Burley appeared to be gasping for air.

Burley’s children and estranged wife, on behalf of themselves and Burley, sued the County of Los Angeles (County) and the deputies, asserting, as here relevant, claims for battery, negligence, and wrongful death (based on the alleged acts of battery and negligence). Regarding Aviles, the jury found in a special verdict that he had committed battery by using unreasonable force against Burley, and that 20 percent of the responsibility for Burley’s death was “attributable to” Aviles’s use of unreasonable force. The jury also found that Burley himself had been negligent and that he bore 40 percent of the responsibility for his own death. Despite this allocation, the trial court entered a judgment against Aviles for 100 percent of the noneconomic damages — set by the jury at $8 million — because his liability was based on commission of an intentional tort: battery.

On review, the Court of Appeal held that the judgment against Aviles had to be reduced in accordance with the jury’s allocation of responsibility to him. (B.B. v. County of Los Angeles (2019) 25 Cal.App.5th 115.) It relied on section 1431.2, which provides that each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.

The Court of Appeal reversed the judgment, holding that section 1431.2 limits the liability for noneconomic damage of all defendants — including intentional tortfeasors — to their proportionate share of fault.

DISCUSSION

The issue decided by the Supreme Court was the extent of Aviles’s liability for ” ‘non-economic damages,’ ” which, for purposes of applying section 1431.2, are defined as “subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” Based upon principles of comparative fault, the liability of each defendant for non-economic damages must be several only and may not be joint. Each defendant is, under the statute, liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.

There is a construction of the statute, even under defendants’ parsing of its language, that is both reasonable and does not render the phrase based upon principles of comparative fault superfluous. Courts should not construe words in a statute as surplusage if a reasonable construction can be given them which will give them some force and meaning. For purposes of deciding this case the key question is the extent, if any, to which existing principles of comparative fault otherwise apply under the law to intentional tortfeasors.

Since 1872, California law has provided that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .” (§ 1714, subd. (a), as enacted 1872.) Until 1975, this broad principle was significantly limited by the contributory negligence doctrine, which barred all recovery if any negligent conduct of the injured plaintiff “contributed as a legal cause in any degree to the harm suffered.” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808 (Li).) This ” ‘all-or-nothing rule’ ” came to be viewed as unjustifiably harsh, because it ” ‘exonerate[d]’ ” even ” ‘very negligen[t]’ ” defendants ” ‘for even the slight fault of [their] victim.’

In order to “attain” the system that Li envisioned under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault the long-recognized common law equitable indemnity doctrine should be modified to permit, in appropriate cases, a right of partial indemnity, under which liability among multiple tortfeasors may be apportioned on a comparative negligence basis.

In the years between the 1975 decision in Li and Proposition 51’s adoption in 1986, several published court of appeal decisions addressed the comparative fault doctrine’s applicability to willful conduct and although “comparative fault principles” apply to willful conduct.

Published appellate authority after Proposition 51’s adoption held that intentional tortfeasors may not obtain reduction of their liability under principles of comparative fault. The post-Proposition 51 decisions the comparative fault doctrine is designed to permit the trier of fact to consider all relevant criteria in apportioning liability and allows jurors to evaluate the relative responsibility of various parties for an injury whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility.

ESTABLISHING THE RULE

California principles of comparative fault require that intentional tortfeasors are not entitled to reduce their liability based on the negligent acts of others. California principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others. Because section 1431.2, subdivision (a), incorporates those “principles of comparative fault,” the Supreme Court agreed with plaintiffs that the statute does not entitle Aviles to reduce his liability based on the acts of Burley or the other defendants.

Comments in the Legislative Analyst’s analysis similarly refer to California law as it applied only to nonintentional torts. After the adoption of Proposition 51 the law precluded intentional tortfeasors from reducing their liability based on the injured party’s conduct.

The decision of the Supreme Court clarified the different decisions and created a clear and unambiguous rule. Therefore, it ruled that section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.

ZALMA OPINION

The California Supreme Court has made an important decision – perhaps in response to the rioting that followed the death of George Floyd who died under circumstances similar to the death of Mr. Burley – which did not result in demonstrations or rioting – that although negligent tortfeasors and their negligent victims will have the victim’s award reduced by the percentage of his negligence but an intentional tortfeasor must pay the full judgment regardless of the percentage of his or her responsibility. Therefore, in California, without providing credit to George Orwell’s “Animal Farm” all negligent tortfeasors are equal but intentional tortfeasors a less equal than others and is not entitled to a reduction of the intentional tortfeasor’s liability by the percentage attributable to the victim or others. Insurance actuaries, as a result, may need to recalculate premium in California.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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