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Pang v. Minch8/29/1990
to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."
This is a clear statement of what I perceive the law to be - and should be. However, paragraph seven of the syllabus states that Section 433B(2) "* * * is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants." (Emphasis added.)
Thus, paragraph seven of the syllabus seems to imply that a plaintiff must prove the indivisibility of harm before the burden of persuasion shifts to the defendants to show that the harm is apportionable. Such an inference is incorrect as it is the defendants) (who seek to limit their liability on the ground that the harm is capable of apportionment among them) who bear the burden of showing the divisibility of the harm.
Further, in paragraph five of the syllabus, and in Part IV of the majority opinion, certain references are made concerning the plaintiff's burden of proving that the conduct of each defendant was a substantial factor in producing the harm.
What the majority means by "substantial factor" is that the act of each defendant "proximately caused" the injury . This is so because, by virtue of paragraph six of the syllabus, the defendants are burdened with showing that the plaintiffs harm is capable of apportionment and the extent to which his or her conduct contributed to the harm. Plaintiff, who may not know whether a defendant's acts substantially contributed to his harm, need only prove that each defendants acts contributed to the harm in any degree.
The majority finds the phrase "substantial factor" in 2 Restatement of the Law 2d, Torts (1965) 440, Section 433A, Comment i, and Section 433B(1), Comment a. Section 433B(1) merely sets forth the traditional notion that the plaintiff must prove that a defendant proximately caused his/her harm.
Accordingly, the plaintiff in a case such as the case at bar must prove only that the act of each defendant proximately caused an injury . This proposition is embodied in paragraph five of the syllabus. Thereafter, it is incumbent upon the defendants to show that the harm is capable of apportionment and the extent to which each defendant's conduct contributed to the harm. This proposition is contained in paragraph six of the syllabus.
For purposes of guidance in an area of law that is oftentimes confusing, I offer the following proposition in lieu of paragraphs five, six and seven of the syllabus:
Where a plaintiff shows that he has suffered an injury as the result of the tortious acts of two or more defendants, and one or more of the actors seeks to limit his or her liability on the ground that the harm is capable of appor-
tionment among the other actors, the burden is upon such actor(s) to show that the harm is capable of apportionment and the extent to which his or her conduct contributed to the harm.
Holmes, J., concurring in judgment. Although I disagree with much of the syllabus law and the discussion within the opinion, I concur in the final judgment of the majority.
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