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California's comparative heresy does not apply to intentional injury



When I was a young adjuster the 1968 law in California allowed the defense of contributory negligence. If the defendant could prove that the plaintiff contributed to the accident that caused him or her injury, nothing recovered. In 1975, California adopted a system of comparative negligence in which the sentence in favor of a plaintiff would be reduced by the percentage of negligence attributed to the plaintiff.

B.B., A Minor, etc., et al. v. County of Los Angeles et al., T.E., a Minor, etc., et al. v. County of Los Angeles et al., D.B., a Minor, etc., et al. v. County of Los Angeles et al ., S250734, California Supreme Court (August 10, 2020) Justice Chin of the California Supreme Court, who wrote before the court, considered the application of Civil Code section 1

431.2 to tortfeasors held liable for damages based on an intentional damages.

FACTUAL HISTORY

An upset woman suddenly appeared on the street, pointed at Burley and shouted, "He was trying to kill me!" She began to flee and Burley ran after her. Deputies retain Burley, who, although he retained, still "threw" and "twisted" his upper body, so Aviles remained on Burley's back and used his "upper body weight" to push Burley down and "hold him in place." Other deputies applied a "hobble restraint" to Burley's legs by wrapping a nylon string around his ankles and "cinch [ing] it tightly." A witness testified that one of the deputies hit Burley in the head "at least seven to ten times" with a flashlight, and that Burley seemed to sigh for air.

Burley's children and foreign wife, for themselves and Burley, sued the county of Los Angeles (county) and the deputies, claiming, as relevant here, claims for battery, negligence and unfair death (based on the alleged acts of battery and negligence ). In the case of Aviles, the jury found in a separate judgment that he had committed battery by using unreasonable force against Burley, and that 20 percent of the responsibility for Burley's death was "attributable to" Avile's use of unreasonable force. The jury also found that Burley himself had been negligent and that he bore 40 percent of the responsibility for his own death. Despite this award, the trial filed a judgment against Aviles for 100 percent of the non-pecuniary damages – set by the jury at $ 8 million – because his liability was based on intentional damages: battery.

On review, the Court of Appeal held that the judgment against Aviles must be reduced in accordance with the division of responsibilities of the jury to him. ( B . B . v . County of Los Angeles (2019) 25 Cal.App. 5th 115.) Det relied on section 1431.2, which stipulates that each defendant shall be liable only for the amount of non-pecuniary damages inflicted on that defendant in direct proportion to the defendant's percentage of error, and a separate judgment shall be given against the defendant for that amount. [19659002] The Court of Appeal revoked the judgment and held that section 1431.2 limits the liability for non-pecuniary damage of all defendants – including intentional bailiffs – to their proportionate share of the error.

DISCUSSION

The question decided by the Supreme Court was the extent of Avile's liability for "non-pecuniary damage", which for the purposes of section 1431.2 is defined as "subjective, non-monetary losses including, but not limited to, pain, suffering, discomfort, mental suffering, emotional stress, loss of society and friendship, loss of consortium, damage to reputation and humiliation. "Based on principles of comparative error, each defendant's liability for non-pecuniary damages must only be several and must not be joint. According to the law, each defendant is only liable for the amount of non-pecuniary damages awarded to that defendant in direct proportion to the defendant's percentage of error.

It is a construction of the Charter, even during the defendant's analysis of its language, it is both reasonable and does not make the phrase based on principles of comparative error superfluous. Courts should not interpret words in a charter as a surplus if a reasonable construction can be given to those who give them a certain power and meaning. To determine this case, the most important question is the extent to which, if any, existing principles for comparative error otherwise apply under the Intentional Shields Act.

Since 1872, California law has provided that “[e] veryone is liable, not only for the result of his or her intentional actions, but also for any harm caused to another by his or her desire for ordinary care or skill in administration. of his or her property or person. . . ". (§ 1714, part a), which was adopted in 1872.) Until 1975, this broad principle was substantially limited by the contributing doctrine of negligence, which prevented any recovery of any negligent conduct of the injured plaintiff. "contributed as a legal cause to some extent to the damage." ( Li v . Yellow Cab Co . (1975) 13 Cal.3d 804, 808 ( Li ).) This "all-or-nothing rule" "Come to be regarded as unjustly harsh, for it" "liberates [d]" "even" "very negligently

In order to" achieve "the system proposed by Li according to which liability for damages will be borne by those whose negligence caused it in direct proportion to their respective faults, the long-recognized Community law of fair compensation should amended to allow, in appropriate cases, a right to partial compensation, according to which liability between several shields can be divided between comparative negligence.

During the years between the 1975 decision Li and the adoption of Proposition 51 1986, several published courts of appeal dealt with the application of comparative error doctrine to willf ul conduct and although "comparative error principles" apply to willful conduct.

Published Complaints Authority after the adoption of proposal 51 found that intentional torture fishermen can not have their liability reduced according to the principles of comparative error. 51 after the decision that the comparative error theory is designed to enable the person trying to consider all the relevant criteria for apportionment of liability and enables lawyers to evaluate the relative liability of different parties for an injury, regardless of their liability for the damage is due to negligence, strict liability or other theories of liability.

SETTING THE RULE

California's principles of comparative error require that intentional tortoises do not have the right to reduce their liability based on the negligent actions of others. California's principles of comparative error have never required or approved a reduction in the liability of an intentional tort based on the actions of others. Since Section 1431.2, Subsection (a), contains these "principles of comparative error", the Supreme Court agreed with the plaintiffs that the Charter does not give Aviles the right to reduce its liability based on Burley or the other defendants' actions.

Comments in the Legislature's analysis are similarly referred to in California law as it only applied to accidental damages. Following the adoption of Proposal 51, the law prevented intentional tortoises from reducing their liability based on the conduct of the tortfeasor.

The Supreme Court's decision clarified the various decisions and created a clear and unambiguous rule. It therefore decided that Section 1431.2, Subsection (a), does not allow for a reduction in intentional liability for non-pecuniary damages based on the extent to which negligence on the part of other actors – including the plaintiffs, any aides, injured parties and non-parties – contributed to the damages. in question.

California's Supreme Court has made an important decision – perhaps in response to the riot that followed the death of George Floyd, who died in circumstances similar to the death of Mr. Burley – who did not result in demonstrations or riots – that although negligent torturers and their negligent victims will have the victim's award reduced by the proportion of his negligence, but a deliberate torturer must pay the full sentence regardless of the percentage of his or her responsibility. Therefore, in California, without giving credit to George Orwell's "Animal Farm", all careless tortoises are equal but intentional tortoises are less equal than others and are not entitled to a reduction in the intent of the intentional pest by the percentage attributable to the victim or Other. As a result, insurance actuaries may need to calculate premiums in California.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to employment as an insurance consultant specializing in insurance coverage, insurance claims management, bad faith insurance and insurance fraud almost equally for policyholders and policyholders. He also serves as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and attorney management attorney and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

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