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Lewis v. Samson9/14/1999
be read as saying that plaintiffs cannot recover anything from the successive tortfeasor if they fail to prove "what injuries, if any, would have resulted in any event." If that were the case, then a victim of a motor vehicle collision who was thrown from the vehicle because of a defective seat belt could recover nothing from the manufacturer of the defective belt unless the victim could prove the damages that would have been suffered if the belt had been satisfactory. Section 50, however, would not necessarily require that result. If the defective seat belt is proved to be a proximate cause of the victim's injuries, but no evidence establishes what damages would have been suffered by the victim if the seat belt had been satisfactory, then the victim's damages (and injuries) would be treated as indivisible. The jury would compare the responsibilities of any tortfeasors causing the crash with the responsibility of the seat belt manufacturer, and apportion the total damages accordingly.
{83} The Restatement approach, it should be noted, is neither pro-defendant nor pro-plaintiff. In any particular case it may be advantageous for the plaintiff or for the defendant to treat the damages as indivisible. In a defective-seat-belt case, the plaintiff would prefer that the damages be treated as divisible if (1) there would have been little damage suffered had the seat belt worked properly and (2) the tortfeasors who caused the accident were very negligent and underinsured. (If each tortfeasor were capable of paying the full damages, the plaintiff would not care how the damages were apportioned among them.) But the plaintiff would prefer that the injury be treated as indivisible if (1) most of the injuries would have occurred even if the seat belt had been satisfactory and (2) the tortfeasors causing the crash were barely negligent and underinsured. The seat belt manufacturer would generally have the opposite preference to that of the plaintiff. But the parties may be sufficiently uncertain regarding how the jury would view the evidence that both might, for example, prefer to take their chances on treating the injury as indivisible. Of course, a party who wishes the damages to be treated as divisible can always put on evidence that would permit such a division. The Restatement adopts the sensible approach that " party alleging that damages are divisible has the burden to prove that they are divisible." Restatement, supra, ยง 50 cmt. h at 459. (Contrary to the majority's suggestion, see ante, 61, I do not read the Restatement as indicating that the plaintiff does not bear this burden when the plaintiff was not negligent or otherwise at fault.)
{84} Turning to the facts of the case before us, it may be useful to discuss how Section 50 would divide damages, assuming that Defendants committed malpractice and that all facts regarding the patient's injuries are resolved by the jury. I will not attempt to catalogue all possible elements of damages that could be recovered, but among them would be medical expenses, lost future earnings, and pain and suffering. First, Plaintiff could recover from Moses Griego, the assailant. At the least, Plaintiff could recover from Griego the damages the patient would have suffered if Defendants had not committed malpractice. The patient, I will assume, would have lived if there had been no malpractice. But the patient certainly would have incurred medical expenses-for treatment at the time of the stabbing, and perhaps also over future years. And there would likely be lost future earnings as well. Given the multiple stab wounds, assume that the jury would have found that the patient's life expectancy was reduced from 40 years to 15 years and that he could no longer perform heavy labo
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