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Lewis v. Samson9/14/1999
d to the distinction between concurrent and successive tortfeasors. First, an application of the five factors [that] the court used to distinguish between concurrent and successive tortfeasors may not always render a clear distinction between the two types of tortfeasors in many multiple injury fact patterns. Take for example the following: an original tortfeasor, in an automobile, hits a pedestrian who falls in the street and breaks his leg. A few seconds later, a speeding drunk driver crosses the median and hits the pedestrian in the same leg, possibly causing an enhanced injury to that leg. The end result is a single broken leg caused by two separate acts of negligence [that] may, or may not, be compared under the Lujan decision.
Id. at 707 (footnote omitted).
{45} Under Lujan, the trier of fact should apportion a plaintiff's damages between the original and successive tortfeasors, regardless of whether both are joined by the plaintiff. See Lujan, 120 N.M. at 426-27, 902 P.2d at 1029-30. This apportionment is not based on the comparative fault of each tortfeasor but based on the damages proximately caused by each separate act. See id. at 427, 902 P.2d at 1030. Under this concept of apportionment, if the plaintiff sues the successive tortfeasor, that party is responsible to the plaintiff for the entirety of an enhanced injury but is not responsible for any harm caused before the enhancement. See id.
{46} In Lujan, the Court declined to apply Bartlett comparative-fault analysis to successive tortfeasors. See Lujan, 120 N.M. at 426, 902 P.2d at 1029. Lujan refused to extend to successive tortfeasors the benefit of the Bartlett exception to joint and several liability. A successive tortfeasor's liability for the enhancement to the original injury is not accurately described as joint and several. Successive tortfeasors are simply liable for the entire enhancement if proximately caused by their negligence. See Lujan, 120 N.M. at 426-27, 902 P.2d at 1029-30.
{47} Similarly, NMSA 1978, ยง 41-3A-1(A) (1987), enacted after Bartlett and entitled "Several iability," abolished joint and several liability " n any cause of action to which the doctrine of comparative fault applies." It also prohibits the application of comparative fault to successive tortfeasors:
Where a plaintiff sustains damage as the result of fault of more than one person which can be causally apportioned on the basis that distinct harms were caused to the plaintiff, the fault of each of the persons proximately causing one harm shall not be compared to the fault of persons proximately causing other distinct harms. Each person is severally liable only for the distinct harm which that person proximately caused.
Section 41-3A-1(D) (emphasis added). Under this statute, the fault of a successive tortfeasor "shall not be compared" to the fault of an original tortfeasor. Instead, the successive tortfeasor remains liable to the plaintiff for the entire enhancement that person proximately caused.
{48} Although Lujan did not rely on Section 41-3A-1, the case accurately limited an original tortfeasor's rights against the successive tortfeasor to indemnification, not contribution based on comparative fault. See Lujan, 120 N.M. at 427, 902 P.2d at 1030.
{49} In summary, under Lujan, damages should be apportioned between successive tortfeasors based upon proximate cause. Their respective liability should not be dependent upon their comparative fault, as with concurrent tortfeasors. In a medical malpractice context, the fault of the original tortfeasor, as opposed to the harm caused, does not play a part in the jury's consideration of the successive
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