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Lewis v. Samson9/14/1999
§ 52, at 347 (5th ed. 1984)). New Mexico has abolished joint and several liability among concurrent tortfeasors, and each such tortfeasor is liable for their respective share of the damages based upon the comparative fault of each. See id.
{43} In contrast, two tortfeasors combining to produce divisible and causally distinct injuries are considered successive tortfeasors. In Lujan, our Supreme Court held as a matter of law, based on the facts in that case, that Healthsouth and the defendant motorist (the original tortfeasor) were "not concurrent tortfeasors; they [were] successive tortfeasors by reason of divisible and causally-distinct injuries." Id. at 425-26, 902 P.2d at 1028-29. Having so held, the Court, in passing, identified five relevant "factors" that some courts have considered in determining whether a tortfeasor is concurrent or successive in a given case. The Court, however, did not take those factors into account, nor did it need to under the facts in Lujan. Neither do we in this appeal. Instead, we interpret Lujan to hold that in a medical malpractice case with facts similar to those found in Lujan and in this appeal, the medical care provider is a successive, not a concurrent, tortfeasor solely by reason of divisible and causally-distinct injuries. Consideration of the five factors is not necessary in such a factual context. The Court in Lujan also held that " Bartlett-style apportionment of fault is inapplicable to a successive and distinct enhancement of an original injury at the hands of a subsequently negligent physician." Id. at 426, 902 P.2d at 1029 (referring to Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct. App. 1982)).
{44} Whether a tort committed by a tortfeasor is concurrent or successive can be determined as a question of law. See Lujan, 120 N.M. at 425-26, 902 P.2d at 1028-29. The factors mentioned but not adopted by Lujan generally turn on the allegations of the parties, specifically, the "alleged negligence" and the "causes of action," and not necessarily on the evidence presented during trial. Id. Any one or more of the factors, we submit, may assist a trial court in determining whether a tortfeasor is concurrent or successive, under facts different from those present here and in Lujan. In some cases, as we previously observed, a trial court may not be able to determine whether two defendants are concurrent or successive tortfeasors before trial. Indeed, Defendants cite several cases in which the trial court was not presented with sufficient grounds to determine whether the damages were apportionable based on proximate cause. See Glomb ex rel. Salopek v. Glomb, 530 A.2d 1362, 1365 (Pa. Super. Ct. 1987) (finding that a "court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify `a reasonable basis for determining the contribution of each cause to a single harm,'" in a case involving indivisible injury at the hands of a babysitter and negligent parents (quoting Restatement (Second) of Torts § 433A(1) (1965))); Mathews v. Mills, 178 N.W.2d 841, 842, 846 (Minn. 1970) (plaintiff involved in two almost simultaneous accidents); Pang v. Minch, 559 N.E.2d 1313, 1315-16, 1323-24 n.4 (Ohio 1990) (plaintiff suffered injuries from successive auto accidents). A law review note by Brady C. Pofahl, Tort Law-Original and Successive Tortfeasors and Release Documents in New Mexico Tort Law: Lujan v. Healthsouth Rehabilitation Corporation, 27 N.M. L. Rev. 697 (1997), discussing our Supreme Court's opinion in Lujan, recognized the problem that might arise in some instances:
The Lujan decision creates two primary problems with regar
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