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Morlock v. St. Paul Guardian Insurance Co.8/29/2002
BR>
Pursuant to section 433A, apportionment principles apply to contributing causes of the harms and divisible harms. Included in the divisible harms are pre-existing conditions. Restatement (Second) of Torts § 433A (1)(b) cmt. e (1965). "In the illustrations of the Restatement (Second), the touchstone of apportionment is reliance on the contribution that causes the ultimate harm and not to some actual division of harm itself." Boston, supra, at 301. The single indivisible injury rule holding multiple tortfeasors jointly and severally liable was incorporated in subsection (2). Restatement (Second) of Torts §á433A (2) cmts. h & i (1965). Comment "h" allows joint and several liability in cases of insolvency or death of one of the tortfeasors and comment "i" applies joint and several principles in cases of an "innocent" cause and two or more culpable causes. Id.
Section 433B of the Restatement (Second) addresses the burden of proof and failure to produce evidence justifying apportionment. Restatement (Second) of Torts §á433B cmt. g (1965). Section 433B (1) states that the plaintiff must prove that the defendant's tortious conduct caused the harm that is subject to potential apportionment. Section 433B (2) says that it is an exception to the rule stated in subsection (1) and provides for burden-shifting in two situations involving multiple tortfeasors. When the tortious conduct of two or more defendants has combined to bring about the harm, the defendant seeking to limit liability has the burden as to apportionment; and when the plaintiff sues two or more tortfeasors and proves that at least one of them has caused harm but there is uncertainty as to which one has caused it, the burden is on the defendant to prove that he had not caused the harm. Restatement (Second) of Torts § 433B (2) (1965). Comment "c," in reiterating that subsection (2) is an exception to the general rule that the plaintiff has the burden of establishing that the defendant's tortious conduct caused the harm, suggests that burden-shifting only applies to multiple tortfeasor situations.
The Restatement (Third) of Torts, generally considered a repudiation of joint and several liability, provides for apportionment among two or more persons who caused divisible damages. Restatement (Third) of Torts: Apportionment of Liability § 26 cmt. h (2000). That part of the proposed draft of Restatement (Third) addressing the burden of proof takes no position as to who should bear the burden in apportioning harm between tortious conduct and a pre-existing condition, noting that courts are split on the burden-shifting issue but also recommending that no matter how the burden is allocated, " o long as there is some modicum of evidence that would permit the factfinder to make a causal apportionment, that course is preferable to making whichever party bears the burden of proof to bear the entirety of the loss." Restatement (Third) of Torts: Liability for Physical Harm § 28 cmt. d (Tentative Draft No. 2, 2002).
In contending that a defendant should be liable for the entire amount of damage unless it meets its burden of proof as to apportionment, Morlock relies on the Newbury line of cases from other jurisdictions, citing policies having their origin in the single indivisible injury rule. It seems to me, however, that the pre-existing condition situation warrants different treatment than that involving multiple tortfeasors. Generally, the burden of proof is placed on the party with the greatest access to the relevant evidence. With multiple tortfeasors, "they presumably can furnish evidence as to their degree of contribution to the plaintiff's injury. But, if the plaintiff is suffering from a pre-existing injury, he or she is in the be
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