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Lewis v. Samson9/14/1999
n there is a reasonable basis for the factfinder to determine:
(1) that any legally culpable conduct of a party or other relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and
(2) the amount of damages separately caused by that conduct.
Otherwise, the damages are indivisible and thus the injury is indivisible. Liability for an indivisible injury is apportioned [as provided elsewhere in the Restatement].
{78} The approach of Section 50 is a pragmatic, functional approach. The purpose-the function-of a personal injury action is to award damages. Damages are divisible if, and only if, the evidence persuades the jury that the damages can be divided into separate components that resulted from distinct (although perhaps overlapping) sets of causes. For example, the victim may suffer some lost future income from an initial injury and further lost future income from an aggravation of the injury. Absent evidence that damages can be divided, the damages are indivisible. To be more precise, an element of damages (such as lost future income) is "divisible" into two components only if the evidence shows that (1) the element of damages has two or more proximate causes (say, cause A of the initial injury and the additional cause B of the later aggravation) and (2) the element of damages can be divided into two measurable components (the loss of future income caused by the initial injury and the further loss caused by the aggravation), each of which was proximately caused by distinct sets of causes (say, cause A for the initial injury and causes A and B for the aggravation). For those whose conduct caused a particular component of the damages, liability is apportioned in accordance with the jurisdiction's rules regarding comparative responsibility. But one whose conduct was not a legal cause of the particular component of damages is not assigned any liability for that component.
{79} The Restatement approach avoids the confusion that can arise from use of the terms "concurrent tortfeasors" and "successive tortfeasors." Those terms suggest focusing on the temporal relationship between separate causes of the plaintiff's injuries; such a focus can cause one to miss the real issue-whether the jury has a basis for dividing the damages between two different causes or sets of causes.
{80} The Section 50 approach is consistent with NMSA 1978, Section 41-3A-1(D) (1987). That provision states that when harms can be apportioned by cause, the jury should compare the fault of only those who proximately caused each harm.
{81} The Restatement approach also appears to be consistent with New Mexico precedent. In Lujan, 120 N.M. at 426, 902 P.2d at 1029, our Supreme Court quoted with apparent approval the following statement from Duran v. General Motors Corp., 101 N.M. 742, 749-50, 688 P.2d 779, 786-87 (Ct. App. 1983): " claimant in an enhanced injury case must prove that the defective design caused injuries over and above those which otherwise would have been sustained, must demonstrate the degree of `enhancement', and `must offer proof of what injuries, if any, would have resulted [in any event].'" (quoting Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1976)). In other words, a plaintiff can recover for enhanced injuries only by proving how the damages can be divided between those that resulted from the "original accident" and the additional damages resulting from the "second accident."
{82} Perhaps in one respect the Restatement departs from Lujan and Duran. The above-quoted language from the New Mexico opinions could
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