California Supreme Court Unanimously Rules Intentional Tortfeasors Not be Afforded Apportionment of Fault in Multi-Defendant Lawsuits
August 27, 2020
In BB v. County of Los Angeles, the California Supreme Court held that Civil Code Section 1431.2 (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the other actors contributed to the injuries in question.[i] Justice Chin authored the opinion of the Court with a focus on the statutory interpretation while Justice Liu filed a concurring opinion, focusing on the inefficiency of the Legislature’s attempt to redress specific harm of violence against African Americans.
The facts of this case are similar to the events surrounding the death of George Floyd, “killed by a Minneapolis police officer who pressed his knee into Floyd’s neck with the full weight of his body for 8 minutes and 46 seconds on May 25, 2020—an incident that galvanized protests in every state across the country and throughout the world.” [ii] The oral arguments of this case were heard a week later, and it is in this context of acts of violence against African Americans that the California Supreme Court renders this landmark decision, putting at rest intentional tortfeasors’ attempt to reduce their liability based on the negligent acts of the plaintiffs or other actors.
In the city of Compton, California, on the evening of August 3, 2012, several witnesses called the police after they saw Darren Burley attacking a woman in the street. When police arrived and attempted to stop him, Burley resisted arrest and appeared to be under the influence of drugs. Deputy David Aviles then pinned Burley to the ground while other officers beat him with a flashlight and tasered him repeatedly. Deputy Aviles pressed his knees on Burley’s neck and back with the full weight of his 200-pound body. A witness saw Burley gasping for air. When Burley lost consciousness, the officers requested the paramedics, already on the scene, to respond immediately. Burley never regained consciousness and died 10 days later. [iii]
Burley’s children and his estranged wife, on behalf of themselves and Burley, sued the County of Los Angeles and the involved deputies for battery, negligence, and wrongful death (based on the alleged acts of battery and negligence).[iv] The jury found that Deputy Aviles had committed battery by using unreasonable force against Burley and that 20 percent of the responsibility for Burley’s death was attributable to Deputy Aviles’s use of unreasonable force. [v] The jury also found that Burley bore 40 percent of responsibility for his own death and that the remaining 40 percent of responsibility was attributable to the other deputies.[vi] “Despite this allocation, the trial court entered a judgment against Aviles for 100 percent of the awarded non-economic damages — set by the jury at $8 million — because his liability was based on commission of an intentional tort: battery.”[vii]
The Court of Appeal reversed the judgment, holding that Civil Code section 1431.2 limits the liability for non-economic damage of all defendants — including intentional tortfeasors — to their proportionate share of fault. In reaching this conclusion, the court expressly disagreed with the holding in Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1108, that “an intentional tortfeasor is [not] entitled to a reduction or apportionment of noneconomic damages under” section 1431.2, subdivision (a).
In its decision, the Supreme Court of California reversed the judgment of the Court of Appeal, thus confirming the holding in Thomas. More specifically, the Court engaged in a statutory interpretation of Civil Code section 1431.2, subdivision (a) and retraced the applicability of the doctrine of comparative fault pre and post the adoption of Proposition 51 at the ballot box in 1986.
Civil Code section 1431.2 (a) states, in relevant part, “[i]n any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of fault[.]”[viii]
When interpreting statutes enacted by initiative, the Court applies the same principles it applies to interpret statutes enacted by the Legislature, i.e., “considering the initiative’s language, giving the words their ordinary meaning and construing [them] in the context of the statute and initiative as a whole.”[ix] If the language is unambiguous, the analysis ends. If ambiguity persists the Court may consider ballot summaries and arguments in determining the voters’ intent and understanding of the ballot measure.[x]
In their textual analysis, both Plaintiff and Defendants disagreed as to whether the phrase “based upon the principles of comparative fault” modifies the subject of the sentence (i.e. “the liability of each defendant”) and not the noun “action” in the preceding clause of the sentence.[xi] Under Plaintiffs’ analysis, the statute requires several liability for non-economic damages only in an action in which comparative fault principles apply, thus excluding intentional tortfeasors from profiting the statute’s limitation on damages liability among negligent parties.[xii] For defendants, the phrase functions as an instruction on how “the percentage of fault should be calculated based on the proportion of fault determined by the fact-finder, including intentional tortfeasors.”[xiii]
Yet, the Court found Defendants’ textual analysis inconsistent with the Court’s precedent, Diaz v. Carcamo (2011) 51 Cal.4th 1148, and not on point with the holding of DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 600, on which Defendant relied principally.[xiv] More importantly, the Court found Defendants’ parsing of the phrase “based upon principles of comparative fault” superfluous because the following clause specifies the calculation of the damages for each defendant, i.e. several and not joint. “Because defendants’ construction renders the phrase ‘wholly without . . . effect,’ adopting it would be inconsistent with the well-established principle that courts should, if possible, give meaning to every word of a statute and avoid constructions that make any word surplusage.”[xv]
Under plaintiffs’ construction, the phrase incorporates existing principles of comparative fault into the statute, such that a defendant’s liability is “several and not joint” — and subject to apportionment based on percentage of responsibility — only in cases where the extent of that defendant’s liability is otherwise determined according to “principles of comparative fault.” The Court, therefore, analyzed the extent to which principles of comparative fault apply to intentional tortfeasors.
The parties disagreed whether under the current comparative fault principles, intentional tortfeasors are entitled to a reduction of liability based on the negligent act of others.[xvi] Plaintiffs’ argued that California law has never sanctioned application of “principles of comparative fault” in this manner. Defendants, on the other hand, asserted, in material part, that “[n]o rule in California excludes intentional tortfeasors from a comparative fault analysis.”[xvii]
The Court reasoned that Defendants’ arguments were unpersuasive. First, it found that Defendants presumed that the word “fault” in section 1431.1 includes intentional conduct. However, at the time the voters considered Proposition 51, the word “fault” in tort law generally—and in the comparative fault context in particular—included negligent (even willful) conduct and liability based on strict liability, but not intentional conduct.[xviii] Second, the Court found that the Defendants failed to explain how or why it would be “‘unfair’” or “‘inequitable’” to treat those who intentionally commit tortious acts differently from those who act negligently or whose responsibility arises from principles of strict liability.[xix] Before and after Proposition 51's passage, California law, both common and statutory, has treated intentional tortfeasors differently from negligent and strictly liable tortfeasors with respect to the doctrines of contributory negligence and contribution.[xx] Finally, the Court opined that Defendants failed to explain how intentional tortfeasors “fit within the category of defendants that section 1431.1 identifies as needing relief.”[xxi]
The Court further stated that it had previously addressed Proposition 51 on the issue of reduction in liability, opining “[a]t the time Proposition 51 was adopted, the law was well established” that “a defendant who committed an intentional tort against the plaintiff was not entitled to a reduction of the judgment because the plaintiff's injuries also resulted from his or her own negligence or the negligence of a third party.”[xxii]
Additionally, the Court found that Defendants’ reliance on Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1 was misplaced. The one issue before the appellate court in Weidenfeller was whether the judgment against negligent defendants for noneconomic damages should be reduced pursuant to Civil Code section 1431.2 based on the percentage of fault the jury attributed to the assailant’s intentional actions.[xxiii] Because the party who acted intentionally in Weidenfeller “was not named as a defendant,” it “did not address” whether an intentional tortfeasor “is entitled to apportionment” under the law. [xxiv] Had the assailant in Weidenfeller been named as a defendant, the Court would have had occasion to address whether a defendant found liable for an intentional tort would be entitled to apportionment under Civil Code section 1431.2. However, the assailant was not named, and the issue of apportionment was never considered.
The Court concluded that “principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor's liability based on the acts of others.”[xxv] Because section 1431.2, subdivision (a) incorporates those principles of comparative fault, the statute did not entitle Deputy Aviles to reduce his liability based on the facts of Burley or other actors.”[xxvi]
This groundbreaking decision of B.B. v. County of Los Angeles now incentivizes plaintiffs to include intentional torts in their complaint, when barely applicable, in an effort to guarantee securing full compensation for pain and suffering damages, regardless of the apportionment of fault attributable to each tortfeasor. This will have consequences in medical malpractices cases, for instance, wherein medical practitioners can be held liable for battery when not obtaining any consent for a procedure.[xxvii] Individual practitioners could be exposed to high liability for pain and suffering even if the intentional medical wrongdoer has a limited percentage of fault in the plaintiff’s injuries, and considering that the Medical Injury Compensation Reform Act (“MICRA”) does not apply to intentional torts, including battery.[xxviii]
Potentially, this may also affect product liability cases, specifically toxic tort and asbestos exposure litigation, where the plaintiffs routinely assert claims for negligence and strict liability failure to warn, which they use as a beginning point to assert intentional tort claims for fraud and concealment relating to the defendants’ failure to provide information on a particular product.[xxix]
With this landmark decision, the Supreme Court of California might have given the green light for plaintiffs to gain more leverage in terms of early settlement negotiations to include intentional tort causes of action in multi-defendant lawsuits, even if the attributable percentage of fault of the named intentional defendant is simply minimal compared to the other tortfeasors. The consequences thereof may be that the fear of being found liable under an intentional tort theory might encourage defendants to settle the case instead of having their day in court and risking high exposure for pain and suffering. This still remains theoretical and only time will tell on the practical aspect of this decision might impact defendants in the long term.
[i] B.B. v. County of Los Angeles (Aug. 10, 2020, No. S250734) ___Cal.5th___ [2020 Cal. LEXIS 5145, at *59].
[ii] Id. at 60-61, citing Burch et al., How Black Lives Matter Reached Every Corner of America, N.Y. Times (June 13, 2020); Bender & Winning, Antiracism Protests Erupt Around the World in Wake of George Floyd Killing, Wall Street Journal (June 7, 2020).)
[iii] Id. at *3.
[iv] Id. at *10.
[viii] Emphasis added.
[ix] Id. at *12, citing (People v. Superior Court, (Pearson) (2010) 48 Cal.4th 564, 571.)
[xi] Id. at *13.
[xii] Id. at *12-13.
[xiii] Id. at *13-14
[xiv] Id. at *15.
[xv] Id. at 22, citing (People v. Franco, (2018) 6 Cal.5th 433, 437.)
[xvi]Id. at *23.
[xviii] Id. at *47-48.
[xix] Id. at *48
[xx] Id. at *49.
[xxi] Id. at *49-50.
[xxiii] Id. at *42
[xxiv] Id. at *40.
[xxv] Id. at *46.
[xxvi] Id. at *46.
[xxvii] a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent. Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 (emphasis added); Cobbs v. Grant (1972) 8 Cal.3d 229, 241-42; see, e.g., Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 (a battery “is an intentional and offensive touching of a person who has not consented to the touching”); Perry v. Shaw (2001) 88 Cal.App.4th 658, 664 (doctor committed battery—a claim distinct from professional negligence—when he “performed an operation to which [plaintiff] did not consent”); Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1194 (discussing statute of limitations for “medical malpractice action arising out of a failure to obtain informed consent to surgery”); Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, 634 (battery “should be reserved for those circumstances where a doctor performs an operation to which the patient has not consented”).
[xxviii] Perry, supra, 88 Cal.App.4th at 661.
[xxix] Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341.