Wednesday, January 25, 2012

Circumventing the Fair Share Act....Maybe

I just wrote about the implications of Pennsylvania's "Fair Share" Act in my post "Exceptions to the New 'Fair Share' Act."  In this post I explained how this new law could hurt plaintiffs injured in Pittsburgh and also various exceptions that were left in place preserving joint and several liability.

Now I just read an interesting article titled "Apportionment of Liability in Inadequate Security Cases."  The article discussed the distinction between intentional and negligent acts that inevitably arises in most negligent security cases. The issue that caught my attention was the proposition that a court cannot compare negligent and intentional conduct. Therefore, when a victim sues a premises owner for negligence, that owner is not allowed to shift blame to an intentional tortfeasor.  This got me thinking...

See under the Fair Share Act bill, defendants found to be less than 60 percent at fault would not have to pay more than their share of the damages, except for awards in circumstances including intentional misrepresentation, an intentional act, an environmental crime or a liquor law violation. The Fair Share Act is law added to the existing Comparative Negligence Statute which you can read by clicking on this sentence.

On first read I was left with the obvious understanding that if a party was found liable for an intentional act joint and several liability would still apply and they could be held responsible for the entire verdict.  But what about a case where there is one party that is found negligent and another found to have acted intentionally?  Could it be that the negligent party would be prohibited from apportioning fault on the intentional actor?  For example, the Florida Supreme Court recently held in Merrill Crossings Associates v. McDonald that the apportionment of fault statute (similar to PA's comparative negligence statute) was inapplicable and that it was not proper to compare the acts of an intentional actor to the negligence of the tortfeasor who is charged with preventing the incident.  It is critical to note that the court based its ruling on a finding that a tort-reform statute enacted to abrogate joint and several liability was inapplicable to actions based on intentional torts.  That sounds a lot like the purpose of the exceptions laid out in the Fair Share Act to me.

For any attorneys perusing this blog (Is there anyone out there?) I would be curious to hear your take on this.  I have a feeling I will be doing a lot more research and arguing on this subject in the near future.

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