Under R.S.A. 507:7-e, Jury May Be Instructed To Apportion Fault Among  
 All Negligent Tortfeasors, Including Tortfeasors Who Were Never A Party  
 To The Suit Or Who Are Immune From Financial Liability
 DeBennedetto v. CLD Consulting, No. 2005-262 (July 27, 2006)

Facts:   Plaintiff’s husband was killed in a two-car collision on Route 28 in Derry, New Hampshire.

The accident happened when the other driver, Doris Christous attempted to cross Route 28 from the Wal-Mart parking lot, against the red light controlling her lane of travel.  She did this because the light had remained red for approximately five minutes, and she concluded that it must be broken.

Meanwhile, Mr. DeBennedetto was traveling through the same intersection on Route 28, and the traffic light controlling his lane of travel was green.

The Christous vehicle struck DeBennedetto’s vehicle in the rear quarter causing it to roll over.

Christous had a motor vehicle liability policy, and her insurance carrier paid the $100,000.00 policy limits to plaintiff.

Christous was never sued by plaintiff.

Plaintiff then brought a wrongful death claim against seven defendants, each involved with the design, selection, installation or authorization of the traffic control system at the intersection where the accident occurred, including the New Hampshire Department of Transportation (NHDOT).

Prior to trial, plaintiff settled her claims against all defendants accept CLD Consulting Engineers (“CLD”).  Plaintiff claimed that CLD negligently designed the intersection’s traffic-light system by leaving out a “loop detector” for the center lane of traffic.  As a result, plaintiff argued, it was foreseeable that vehicles would become stuck at an interminable red light and decide to proceed against it.

At trial, CLD requested a jury instruction that informed the jury that there were a number of parties to the case who were absent form trial.  The proposed instruction also told the jury they could attribute liability to any absent party based on the evidence offered against that party during trial.

Trial Court Decision:       

The trial court did not give CLD’s proposed instruction.  Instead, the court instructed the jury that they could determine the percentage of fault attributable to Christous, and two other settling parties, including NHDOT, as well as CLD.  This instruction left out the other three settling parties.   

Jury Verdict:        Plaintiff’s damages award:  $5.3 million

                             Apportionment of liability:  CLD – 49%

                            Christous – 49%

                             NHDOT – 2%

As a result CLD was liable to plaintiff for approximately $2.6 million.

Both plaintiff and defendant filed numerous post verdict motions, including plaintiff’s motion to reapportion 100% fault onto CLD, which was denied.  The court granted CLD’s motion for remittitur, and reduced the damages award to $3.8 million. 

Both parties appealed.

Holding:     Affirmed. 

The most significant issue addressed by the court was the application of RSA 507:7-e, the statute that provides for the apportionment of fault among tortfeasors by the jury. 

The Supreme Court upheld the trial court’s determination to instruct the jury on the apportionment of fault to the settling defendants, which was consistent with their holding in Nilsson v. Bierman, 150 NH 393 (2003). 

The Court extended the rule in Nilsson, by holding that the trial court properly instructed the jury that it could apportion fault to Christous, even though she was never a defendant in the suit.

The Court observed that the tort reform legislation adopted in 1989, abolished the old system whereby every tortfeasor responsible for plaintiff’s injury was 100% liable for plaintiff’s damages, regardless of each individual’s degree of fault.  In other words, under the old rule all tortfeasors were jointly and severally liable, even if they were only 1% at fault for the damages.

In 1989, the legislature, rejected a proposal to impose only several liability on each tortfeasor based on proportionate share of fault.  Instead, it adopted a hybrid system, whereby those tortfeasors that are 50% at fault or greater have joint-and-several liability, and those with less than 50% fault have only several liability.

After reviewing the decisions of other hybrid jurisdictions, the Court held that a rule of law by which a jury could only consider the fault of the parties to an action would undermine the legislature’s intent that parties that are less than 50% at fault for the loss should only be severally liable.

Thus, apportionment of fault to tortfeasors that are not a party to the action before the court is appropriate, even for parties that are immune from liability to the plaintiff. 

The Court also rejected plaintiff’s arguments that RSA 507:7-e, as applied by the court, violated the New Hampshire Constitution’s guaranty of a civil remedy, or the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

The trial court’s order granting defendant’s motion for remittitur was upheld because the trial court could reasonably have determined that the damages award was punitive rather than compensatory in nature based on the evidence presented at trial. 

As part of its Cross Appeal, CLD argued that the Trial Court erred in not using its proposed jury instruction that would have permitted additional findings of fault against the three settling defendants.  However, the Supreme Court observed that in its order on apportionment of fault, the Trial Court noted that CLD agreed that there was not enough evidence produced at trial to show that the other three settling defendant’s were at fault to any degree.

Regards,

Mike Wallenius

603-634-4300
mwallenius@gss-lawyers.com