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Lewis v. Samson9/14/1999
sive tortfeasors could apportion fault for the causally distinct second or successive injury with original tortfeasors." (Footnote omitted)).
{54} We conclude that the trial court erroneously failed to determine as a matter of law that Defendants were successive tortfeasors and not concurrent tortfeasors. This error allowed Defendants to improperly inject issues of the original tortfeasor's comparative negligence and negligence per se to the jury during the entire course of the trial.
{55} In addition to the analysis previously discussed, we offer the following guidelines for trial courts to observe. In the event that a trial court can determine as a matter of law before trial that a plaintiff's case presents a successive-tortfeasor-liability question, after considering the five factors enumerated in Lujan, the court should instruct counsel to refrain from arguing a comparative-negligence theory during trial involving the original tortfeasor(s). If the trial court is unable to make such a determination before trial, the court should nevertheless instruct counsel not to argue a comparative-negligence theory to the jury. If evidence is adduced during trial to permit the trial court to make such a determination one way or the other (concurrent tortfeasor liability versus successive tortfeasor liability) as a matter of law, the trial court should submit the appropriate instructions to the jury on the proper tortfeasor liability theory founded on the evidence presented and permit counsel to argue the evidence and applicable liability theory accordingly during closing arguments.
{56} In our view, there are two important differences between our approach and the approach taken by the Dissent. The first of these is that the thrust of our focus is in the trial court's denial of Plaintiff's motion to preclude Defendants from arguing comparative fault by the assailant in a case that involved Defendants as successive tortfeasors. The Dissent, on the other hand, applies its rationale and Discussion of Restatement (Third) of Torts: Apportionment of Liability, ยง 50, to the production of evidence required of a plaintiff attempting to show that plaintiff's injuries are divisible. The Dissent then, does not address the problem of a party prematurely injecting a theory of liability that is not warranted by the facts. We believe that if the facts of a particular case warrant the argument by either a plaintiff or a defendant that the theory of liability is one of successive and not concurrent tortfeasor liability, or vice versa, then the party arguing such liability has the burden of adducing evidence not only of the negligence of the tortfeasor but of the divisibility or indivisibility of the injury . It is a matter of proof for the factfinder's consideration and required of the party asserting the liability theory. Proper instructions to a jury in that regard will assure that a party's theory is properly considered by the jury. The ultimate effect of the trial court's denial of Plaintiff's motion, which as we noted previously, we view as a motion in limine, was to inject a false issue in the trial from which there was no retreat. The error was later compounded when the trial court instructed the jury on the law of concurrent tortfeasor liability, a theory clearly not applicable under Lujan. The jury, as trier of fact, would ultimately decide the question of whether there was a failure of proof. Plaintiff was unable to present her theory without the taint of comparative negligence injected by Defendants. Consequently, the Dissent's attempt to reject Plaintiff's theory of successive tortfeasor liability because of an asserted failure of proof is, in our view, a red herring.
{57} This brings us
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