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Allocating fault in negligent security cases.

Should the fault of the negligent defendant who has a duty to protect the Plaintiff be reduced by that of the intentional tortfeasor? Today, this is the most troubling question in inadequate security litigation. Defendants sued for negligently failing to protect someone whom they had a duty to protect from a third-party criminal attack claim they should be able to reduce their share of fault by having the intentional tortfeasor included in the apportionment of fault on the verdict form.

The significance of this issue should not be underestimated. One court has noted that "such a rule could, in effect defeat plaintiffs cause of action."(1) Another has observed that the assailants, paramount and probably exclusive, responsibility for the victims beating will be reflected in the jury's percentage allocation of fault."(2)

The practical effect of allowing negligent defendants to compare their fault with intentional tortfeasors' will be that plaintiffs will recover only a fraction of what they would have without apportionment of fault. For example, in the first of the handful of reported cam, the jury found the negligent landowner was 20 percent at fault compared with 80 percent for the intentional tortfeasor.(3)

Even where a jury finds that most of the fault rests with the negligent defendants, however, appellate courts have sometimes overturned the verdicts. For example, in one case where the jury found the negligent landlord's share of fault was 95 percent the appellate court concluded the verdict was not supported by substantial evidence and ordered a new trial. "Just as Justice Potter Stewart knew hardcore pornography when he saw it, we know a blatantly unfair, inequitable and unsupported apportionment of fault when we see it," the court said.(4) In another case, an appellate court overturned a jury's finding that the negligent defendant's share of fault was 99 percent.(5)

Doctrinal basis

Allowing a negligent business or landowner to minimize its fault in favor of an intentional tortfeasor may seem unthinkable to many lawyers. However, recent changes in fundamental tort principles have permitted this to happen in a number of jurisdictions. To understand how to effectively fight apportionment of fault between negligent defendants and intentional tortfeasors, it is necessary to understand the three changes in tort law that permitted this to happen.

* Abolition of joint and several liability. Under joint and several liability, a judgment is fully collectable against any of the tortfeasors. Consequently, a judgment can be recovered from a negligent defendant responsible for only a small share of the fault. But today, about two-thirds of the states have modified or totally abolished joint and several liability.

* Enumeration of nonparties on the verdict form. Even with the abolition of joint and several liability, plaintiffs could recover fully from the negligent defendant if the jury was not asked to apportion the intentional tortfeasor's fault. Traditionally, by not suing the intentional tortfeasor, plaintiffs could keep the issue of this tortfeasors share of fault from going to the jury. The negligent defendant could bring in the intentional tortfeasor as a third-party defendant if the tortfeasor was known and could be located.

Today, courts in an increasing number of states have held that nonparties must be included in the verdict form's apportionment of fault to properly determine a defendant's share of fault.(6) This has allowed a negligent defendant to argue that its fault should be compared to that of a nonparty intentional tortfeasor.

* Comparison of negligent and intentional conduct. Before negligent defendants can minimize their liability in favor of intentional tortfeasors, courts have to conclude that it is proper to compare negligent and intentional conduct

The eight jurisdictions that have addressed this issue are divided. Four jurisdictions have held it is proper to compare different types of fault,(7) three, that it is not.(8) One jurisdiction, Florida, is divided. One intermediate appellate court has held that there should be apportionment while two other intermediate appellate courts and two federal district courts have held that there should be no apportionment.(9)

Many jurisdictions have abolished or modified joint and several liability by statute. In those jurisdictions, it is essential to start with the language of the statute in analyzing whether the intentional tortfeasor should be included in the apportionment of fault. If it speaks in terms of "negligence," rather than intentional acts, or of a more general "fault," a fair interpretation is that the statute does not contemplate apportionment of fault between negligence and intentional torts. But if it speaks in terms of "comparative fault," this language may suggest a legislative intent that all types of fault be compared.(10)

Arguments for apportionment

Few arguments are made in favor of apportioning fault. The most common argument is that apportionment of fault is an extension of two tort law trends: the move to comparative negligence and the later move away from joint and several liability. Both hold a party responsible for its share of the fault, and no more. The negligent defendant is responsible for its share of the fault; the comparatively negligent plaintiff, for his or her fault and the perpetrator, for his or her fault.

Some courts have found apportionment of fault is especially appropriate where a negligent defendant is being sued for failing to protect against a third party's intentional acts. These courts have suggested that a statute intended to benefit negligent tortfeasors by limiting their liability to their portion of fault is most needed where the other tortfeasors acted intentionally.(11)

Other courts have found that all fault is at heart similar and there is no reason why different degrees of fault -- negligent and intentional -- should not be considered. "The whole fault of which a negligent defendant's acts are but a part, is broad enough to encompass an intentional tortfeasor's acts."(12)

Arguments against apportionment

There are numerous arguments against apportionment.

* Principles of construction. Statutes modifying or abolishing joint and several liability are in derogation of the common law. Consequently, they must be narrowly construed in favor of the common law and, thus, against apportionment.(13) Any doubts about whether there should be apportionment should be resolved against it.

* Legislative history. If the statutes legislative history speaks to apportionment, courts must examine the discussion closely. More likely, though, the legislature has not discussed this issue. One can argue that because legislators never suggested ant negligent defendants could minimize their liability by blaming the very perpetrators whose wrongdoing they had a duty to prevent there should be no apportionment of fault.

* Unfairness. Courts have noted that it is unfair to allow a defendant in this situation to minimize its liability by blaming the third party.(14) As one oft-cited opinion explained, "Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent."(15)

Consequently, although in some circumstances it might he proper to compare intentional conduct with negligent conduct, this comparison is improper where the negligence is in the failure to protect against foreseeable intentional torts.

* Comparison of apples and oranges. In some cases, courts have held that it is impossible for juries to compare two different types of fault. intentional wrongdoing differs from negligence not only in degree but in kind.

A jury can easily apportion fault among the various drivers who negligently caused an auto collision. But, when asked to compare the intentional conduct of the third party with the negligent conduct of the defendant who failed to protect the plaintiff from the third-party's foreseeable acts, a jury will have no standards of logic or experience to rely on. Negligent and intentional conduct cannot be compared.(16)

* Compensation and deterrence. The twin goals of the tort system are compensating injured plaintiffs and deterring wrong-doing. Neither goal is advanced by the apportionment of fault between intentional conduct and negligent conduct.(17)

Apportionment will almost always drastically reduce the award a plaintiff will recover. As one judge said, apportionment "eviscerates the cause of action for negligent failure to protect."(18) The jury will apportion substantial fault to the criminal who rarely has assets, and there is no insurance coverage for intentional or criminal acts.

Moreover, given the fact that a rational juror will apportion the "lion's share" of the fault to the intentional tortfeasor, apportionment of fault will reduce the landowner's incentive to protect against the same type of situation in the future.(19)

Defeating apportionment

The following are several ways to defeat apportionment.

* Think creatively. The recent changes in tort law make it more important than ever that plaintiffs, lawyers view the law creatively. The decline of joint and several liability dramatically changes the practice of law, and it is important that lawyers rethink old concepts to reflect these changes.

For example, the New Mexico Supreme Court held there should be no comparison of fault between an employer who negligently hires an employee and the employee who later commits an intentional act. The court concluded that negligent hiring gives rise to vicarious liability -- if the employer was negligent in hiring the employee, it is liable through respondeat superior for the employee's conduct.

The court conceded that no court had previously ruled in this way. But it noted that under joint and several liability, there was no need to theorize about a negligent employer's vicarious liability because "the employer is liable for all damages anyway, once negligence and causation are found."(20) Thus, the old concept of respondeat superior was applied in a new way to avoid apportionment of fault between negligent and intentional tortfeasors.

* Obtain every procedural advantage. This is crucial. For example, many courts have held that the comparative fault of a nonparty is an affirmative defense. The burden of pleading and proving the nonparty's fault is on the defendant. If a defendant does not prove all elements of the nonparty's fault, including breach of duty and proximate cause of damages, move for a directed verdict.

One court has held the defendant has the burden of identifying the nonparty tortfeasor in order to be entitled to an apportionment of the nonparty's fault.(21) If a "nonparty" defense is not pleaded, do not consent to allowing the defendant to try the nonparty's liability.

* Challenge the constitutionality of the statute. Plaintiffs, lawyers can also try a constitutional challenge to a statute that allows nonparties to be included in apportionment of fault. The Montana Supreme Court held the Montana comparative fault statute unconstitutional.(22) The court found that due process is violated by allowing the jury to allocate fault to nonparties, who are not represented, who have settled, who are immune, or who have a defense against the plaintiff, especially without providing any procedural safeguard for the plaintiff or for the nonparties.

* Determine whether joint and several liability still exists. In many states, joint and several liability still exists for economic damages.(23) In these states, although there may be an apportionment of fault among the tortfeasors, plaintiffs can still collect all their economic damages from any of the defendants, regardless of that defendant's percentage of fault.

* Remember there is no apportionment among some types of negligent defendants. For example, the duty of a possessor of land to use reasonable care to prevent attacks is nondelegable. Although a landowner may hire an entity to provide security, the owner is still responsible if that entity performs negligently.(24) Consequently, there is no apportionment of fault between the landowner and the security entity. In other words, the owner is jointly and severally liable with the provider of security.

Also, there is no apportionment of fault between an actively negligent tortfeasor and the entity vicariously liable for the tortfeasor's conduct. That is, in cases where one defendant is liable vicariously for the conduct of another -- by operation of law, without regard to the defendant's own fault -- there is no basis for apportioning fault between the two.(25)

* Reason with the jury. If plaintiffs' law-years are compelled to put the intentional tortfeasor on the verdict form, their job is to make the jury understand the important difference between the landowner's and the criminal's conduct. Lawyers need to have good jury instructions on proximate causation and inadequate security and premises liability law and use them in closing argument at trial.

If the intentional tortfeasor can't be kept off the verdict form, the court should at least tell jurors that the fault they attribute to this tortfeasor will reduce the plaintiff's recovery.

The importance of this issue cannot be overstated. To a considerable extent the future of negligent security litigation -- until recently a useful way of obtaining compensation for crime victims and encouraging effective anticrime measure -- rests on its resolution.


(1.) Bach v. Florida R/S, Inc., 838 F. Supp. 559, 561 (M.D. Fla. 1993).

(2.) Blazovic v. Andrich, 590 A.2d 222, 225 (N.J. 1991).

(3.) Weidenfeller v. Star & Garter, 2 Cal. Rptr. 2d 14, 16 (Ct.App. 1991).

(4.) Pamela B. v. Hayden, 31 Cal. Rptr. 2d 147, 160 (Ct. App. 1994), rev. dismissed, 38 Cal. Rptr. 2d 345 (Cal. 1995).

(5.) Scott v. County of Los Angeles, 32 Cal. Rptr. 2d 643 (Ct. App. 1994). But see Rosh v. Cave Imaging Sys., Inc., 32 Cal. Rptr. 2d 136 (Ct. App. 1994) (affirming apportionment of majority of fault to negligent landowner).

(6.) See, e.g., DaFonte v. Up-Right, Inc., 828 P.2d 140 (Cal. 1992); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

(7.) Weidenfeller, 2 Cal. Rptr. 2d 14; Martin v. United States, 984 F.2d 1033 (9th Cir. 1993) (applying California law); Blazovic v. Andrich, 590 A.2d 222 (N.J. 1991); Barth v. Coleman, 878 P.2d 319 (N.M. 1994); Reichert v. Atler, 875 P.2d 379 (N.M. 1994); Turner v. Jordan, No. 01-A-01-9411-CV-00541, 1995 WL512957 (Tenn. Ct. App. Sept. 1, 1995).

(8.) Kansas State Bank & Trust Co. v. Specialized Transp. Servs., 819 P.2d 587 (Kan. 1991); Veazey v. Elmwood Plantation Assocs., 650 So. 2d 712 (La. 1994); Marceaux v. Gibbs, No. 95-1397, 1996 WL 458891 (La. Ct. App. Aug. 14, 1996); Flood v. Southland Corp., 616 N.E.2d 1068 (Mass. 1993).

(9.) Compare Stellas v. Alamo Rent-A-Car, Inc., 673 So. 2d 940 (Fla. Dist. Ct. App. 1996) with Wal-Mart Stores v. McDonald, 676 So. 2d 12 (Fla. Dist. Ct. App. 1996) and Slawson v. Fast Food Enters., 671 So. 2d 255 (Fla. Dist. Ct. App. 1996) and Bach, 838 F. Supp. 559 and Doe v. Pizza Hut of Am., Inc., No. 93-709 Civ-J-10 (M.D. Fla. June 21, 1994).

(10.) But cf., e.g., Wal-mart, 676 So. 2d 12 (no apportionment even though statute refers to percentages of fault).

(11.) See generally Weidenfeller, 2 Cal. Rptr. 2d 14, 15-16.

(12.) Stellas, 673 So.2d 940, 942-43.

(13.) Slawson, 671 So.2d 255.

(14.) Id.; Marceaux, 1996 WL 458891.

(15.) Kansas State Bank, 819 P.2d 587, 606.

(16.) See generally Veazey, 650 So. 2d 712, 719 (quoting Prosser).

(17.) WV. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS [sections], at 20-26 (5th ed. 1984.

(18.) Stellas, 673 So. 2d 940, 943 (Jorgenson, J., dissenting). See also Bach, 838 F. Supp. 559.

(19.) Veazey, 650 So. 2d 712, 719.

(20.) Medina v. Graham's Cowboys, Inc., 827 P.2d 859, 864 (N.M. Ct. App. 1992).

(21.) Nash v. Wells Fargo Guard Servs.,678 So.2d 1262 (Fla. 1996).

(22.) Newville v. Montana Dep't of Fam. Serv., 838 P.2d 793 (Mont. 1994).

(23.) See, e.g., CAL. CIV. CODE [sections] 1431.2(a) (West Supp. 1996) FLA. STAT. ANN. [sections] 768.81(3) (West Supp. 1996).

(24.) See generally U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268 (Fla. Dist. Ct. App. 1996).

(25.) See generally Rashtian v. BRAC-BH, Inc., 12 Cal. Rptr. 2d 411 (Ct. App. 1992); Miller v. Stouffer, 11 Cal. Rptr. 2d 614 (Ct. App. 1992); Kronbach v. Balsys, 656 So. 2d (Fla. Dist. Ct. App. 1995); Nash, 678 So. 2d 1262.

Robert S. Glazier is an appellate lawyer in Miami. Barbara Green is an appellate lawyer in Coral Gables, Florida.
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Author:Green, Barbara
Date:Jan 1, 1997
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