BAXTER v. SCOTTISH RITE TEMPLE ASSOCIATION (1978)

In this personal injury action¹ a jury rendered a special verdict that plaintiff suffered total damages of $333,000 and apportioned negligence as follows:

The court rendered judgment for plaintiff against defendant in the sum of $238,923.46:

Defendant does not savor one bit the end result where it must pay 75 percent of the damages when there is a finding by the jury undisturbed by the trial judge that it was only responsible for 15 percent of the damages. Defendant's opening brief urges this court to follow the spirit of Li³ and allow the plaintiff to keep all his Workers' Compensation benefits as full compensation for his employer's negligence and to assess the defendant 15 percent of the balance as its “equitable proportion.”

As for the unsatisfied balance of over $200,000, it becomes a due bill without a debtor.

This expression is made pre American Motorcycle Assn. v. Superior Court, supra, 20 Cal.2d 578, 146 Cal.Rptr. 182, 578 P.2d 899. In defendant's closing brief filed post American Motorcycle, it postulates two alternatives if this court concludes “that appellant's liability may exceed its proportionate share of fault.” One is to prorate the total recovery in accordance with the respective responsibilities of plaintiff vis a vis defendant by treating the total responsibility as being 40 percent (15 percent plus 25 percent) and converting their respective percentages into a factor of 100 percent under which plaintiff would be 62.5 percent responsible; plaintiff under this plan would receive 37.5 percent of $333,000⁴ ($124,875) as his judgment against the defendant.

In the alternative he would allow the plaintiff judgment against defendant for 15 percent of $333,000 ($49,950) plus 37.5 percent of $199,800 (the employer 60 percent) ($74,925) for a total of $124,875. In effect, he seeks to have plaintiff and defendant share the 60 percent negligence of the immunized employer.

What the defendant urges on this court is just what dissenting Justice Clark urges in American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 614, 146 Cal.Rptr. 182, 205, 578 P.2d 899, 922: “Consistent with the Li principle—the extent of liability is governed by the extent of fault—the loss attributable to the inability of one defendant to respond in damages should be apportioned between the negligent plaintiff and the solvent negligent defendant in relation to their fault. (Fleming, Foreward: Comparative Negligence At Last—By Judicial Choice (1976) 64 Cal.L.Rev. 239, 251-252, 257-258.) Returning to my 30-60-10 illustration, if the 60 percent at fault defendant is unable to respond, the 30 percent at fault plaintiff should be permitted to recover 25 percent of the entire loss from the 10 percent at fault solvent defendant based on the 3 to 1 ratio of fault between them. (The solvent defendant would have added to his 10 percent liability one-fourth of the 60 percent or 15 percent to reach the 25 percent figure.) To the extent that anything is recovered from the 60 percent at fault defendant, the money should be apportioned on the basis of the 3 to 1 ratio. The system is based on simple mechanical calculations from the jury findings.” (Emphasis added.)

If one were to substitute the words “immunity” or “immunized” for the words “inability” or “unable to respond,” Justice Clark is urging just what defendant is. Unfortunately for defendant the majority does not agree.

Defendant attempts to distinguish American Motorcycle on the grounds that there were multiple defendants and here only one defendant who can be reached. We cannot so distinguish American Motorcycle when the court flatly states at page 590, 146 Cal.Rptr. at page 189, 578 P.2d at page 906: “Under the circumstances, we hold that after Li, a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only ‘in proportion to the amount of negligence attributable to the person recovering.’ (13 Cal.3d at p. 829, 119 Cal.Rptr. 858, 532 P.2d 1226.)”

Plaintiff's employer was for all intents and purposes a “concurrent tortfeasor” with defendant; the jury found that the employer was negligent and that its negligence was a proximate cause of plaintiff's injuries.

Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 145 Cal.Rptr. 608 was decided after appellant's closing brief was filed but in a memorandum filed later and in oral argument he urges this court not to follow it and if we follow it to distinguish it.

In Arbaugh, the judgment was $340,000 and both plaintiff's employer and the defendant were found to be 50 percent negligent and the plaintiff not negligent. There was a codefendant named with whom plaintiff settled before trial for $1,000. Defendant claims the decision in Arbaugh affirming the judgment against defendant for 100 percent of the damages after deducting Workers' Compensation benefits and $1,000 is based on a misconception of the American Motorcycle opinion and therefore should not be followed. With this contention we do not agree as is obvious from our discussion of American Motorcycle, supra.

Defendant further attempts to distinguish Arbaugh because a named defendant settled out of court for $1,000 in a $340,000 case. We do not feel that this sufficiently distinguishes the case. The defendant in Arbaugh got a judgment against him for all of the employer's negligence plus his own less $1,000. But that factor, the $1,000, just does not change the picture.

Defendant urges as another distinguishing factor that, in Arbaugh, the plaintiff was not negligent. Again that does not change things. In the case before us an amount proportionate to the plaintiff's negligence has been deducted from his total damages. Defendant here can only complain, as the defendant did in Arbaugh that he is being assessed the employer's share. We hold that the defendant will have to live with the result caused by the now well established joint and several liability doctrine post Li in conjunction with the immunity of employers⁵ from tort liability.

The very nature of the type of litigation illustrated here and in Arbaugh readily lends itself to what at first blush might appear to be anomalous results.

The defendant says, “I'm not responsible, it was the negligence of the plaintiff and his employer that caused the accident.” The plaintiff certainly stands up for himself and lays the blame on the defendant but as to his employer he is ambivalent. Every percentage point of negligence that his employer gets assessed is one less for which he can be held accountable. The plaintiff is relatively unconcerned about the potential percentage points being taken away from the defendant, because as long as his own percentage, if any, is held down he will achieve a satisfactory recovery so long as there is at least some percentage ascribed to the defendant no matter how low. Thus he might well concede that his employer was negligent along with the defendant.

The employer does not want to concede any negligence of its employee because the employer's carrier is assessed that percentage added to its own when the court renders judgment with regard to the intervenor.

The employer (really a quasi plaintiff) can become more like a defendant assailed by both plaintiff and defendant.

In this case the employer was allowed one argument, i. e., it was treated as if it were a defendant.

If future defendants want a one-on-one trial⁶ their ingenuity, far better than this court's, should provide methods to eliminate the interveners from the case before trial.⁷ . Query whether they really want that. The defendant may feel that evidence of the $14,435.38 (Arbaugh $44,836.71) already paid to or on behalf of the plaintiff helps his situation, particularly when the jury is instructed that if the plaintiff does not receive a judgment, he does not have to pay any of that sum back to his employer. (BAJI No. 15.10.)

The plaintiff has asked us to award him attorney's fees by way of a sanction against the defendant for taking a frivolous appeal. We find that in no way was the appeal frivolous.

The judgment is affirmed. The motion for attorney's fees is denied.

FOOTNOTES

FOOTNOTE.  

1.  At the time of the accident, plaintiff was employed by Western Scenic as a stagehand and Western Scenic had been retained by defendant to change a stage drop in the Scottish Rite Temple in San Francisco. Plaintiff climbed on a scaffold owned by defendant. The scaffold had been set up without the lateral supports needed for stability when used for heights. It tipped over and plaintiff was seriously injured in the fall.Western Scenic (plaintiff's employer)60 percentPlaintiff (respondent)25 percentDefendant (appellant)15 percent    Total100 percent

3.  Defendant's opening brief cites the following excerpts from Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226: “The basic objection to the doctrine—grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability—remains irresistible to reason and all intelligent notions of fairness.” (P. 811, 119 Cal.Rptr. p. 863, 532 P.2d p. 1231; emphasis added.) “[T]he ‘all-or-nothing’ rule of contributory negligence as it presently exists in this state should be and is herewith superseded by a system of ‘pure’ comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damages in direct proportion to the amount of negligence of each of the parties.” (Pp. 828-829, 119 Cal.Rptr. p. 875, 532 P.2d p. 1243; emphasis added.) “We are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery—and that it should be replaced in this state by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.” (Pp. 812-813, 119 Cal.Rptr. p. 864, 523 P.2d p. 1232; emphasis added.)American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, had not yet been decided when defendant's opening brief was filed. Each of these quotes is incorporated in the first paragraph of Justice Clark's dissent (p. 608, 146 Cal.Rptr. 182, 578 P.2d 899). Unfortunately for the defendant only the dissent is in agreement with the defendant's assessment that the essence of Li forbids the application of joint and severable liability.Then in the third paragraph the dissent illustrates what will transpire post American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 609, 146 Cal.Rptr. 182, 578 P.2d 899: “The majority reject the Li principle in two ways. First, they reject it by adopting joint and several liability holding that each defendant—including the marginally negligent one—will be responsible for the loss attributable to his codefendant's negligence. To illustrate, if we assume that the plaintiff is found 30 percent at fault, the first defendant 60 percent, and a second defendant 10 percent, the plaintiff under the majority's decision is entitled to a judgment for 70 percent of the loss against each defendant, and the defendant found only 10 percent at fault may have to pay 70 percent of the loss if his codefendant is unable to respond in damages.” (At p. 609, 146 Cal.Rptr. at p. 202, 578 P.2d at p. 919.) Ten percent paying 70 percent is about the same as 15 percent paying 75 percent (the instant case).To Plaintiff$333,000.00(Workers' Compensation benefits)- 14,435.38$14,435.38318,564.62(Defendant pays for his negligence - 15 percent)47,784.6947,784.69270,779.93(-25 percent plaintiff negligence)67,694.98203,084.9562,220.07

4.  In this as well as in the following example defendant does not allocate the compensation benefits to plaintiff off the top nor does it first subtract them. This does not denigrate its rationale which is clear.

5.  Defendant concedes that Labor Code section 3864 does confer such immunity.

6.  As defendant argues in its closing brief: “Accordingly had the conduct of respondent been compared only with that of appellant, there is every indication that the jury would have attributed a significantly higher percentage of negligence to respondent.”

7.  The plaintiff is not responsible for the intervention and probably would just as soon the interveners stayed out of his lawsuit.

PARRISH,* Associate Justice (Assigned). FN* Assigned by the Chairperson of the Judicial Council.

WHITE, P. J., and FEINBERG, J., concur.