Henry v. Superior Court

72 Cal.Rptr.3d 808

160 Cal.App.4th 440

Joe HENRY et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Larry Reinink et al., Real Parties in Interest.

No. B200690.

Court of Appeal, Second District, Division 7.

February 25, 2008.

Horvitz & Levy, David M. Axelrad and Karen M. Bray, Encino; The Phillips Firm, Thomas M. Phillips, Los Angeles, Timothy E. Kearns and Hillary Arlene Jones, for Petitioners.

No appearance for Respondent.

Law Office of Gerald Philip Peters and Gerald P. Peters, Agoura Hills, for Real Party in Interest.

Steven G. Ingram, for Consumer Attorneys of California as Amicus Curiae on behalf of Real Party in Interest.

PERLUSS, P.J.

Traditional California tort law holds a tortfeasor liable not only for the victim's original personal injuries but also for any aggravation caused by subsequent negligent medical treatment, provided the injured party exercised reasonable care in obtaining the medical treatment. The subsequent tortfeasor, in turn, is also liable to the injured party for the enhanced injuries he or she has caused. Does Civil Code section 1431.2,¹ adopted by the voters in 1986 as Proposition 51 (The Fair Responsibility Act of 1986), which provides in personal injury actions based upon principles of comparative fault "the liability of each defendant for non-economic damages shall be several only and shall not be joint," modify the injured party's right to recovery in these cases? That is, in a lawsuit brought by the injured party against the original tortfeasor alone, is the defendant entitled to reduce his or her exposure to noneconomic damages by proving the medical professionals share fault for the aggravated injuries suffered by the plaintiff?

The trial court in this premises liability action ruled homeowners Joe and Judy Henry, sued by Larry Reinink for injuries suffered as a result of a fall on their property, could not introduce evidence that medical malpractice by emergency room doctors at Kaiser Permanente (Kaiser) who are not parties to this action, aggravated Reinink's injuries. Because section 1431.2 generally precludes joint liability for noneconomic damages in personal injury actions, providing a defendant shall be liable only for those noneconomic damages directly attributable to his or her own percentage of fault, and because none of the limited exceptions to section 1431.2 is applicable in this case, we grant the petition for writ of mandate filed by the Henrys and direct respondent Los Angeles Superior Court to vacate its order excluding evidence of subsequent negligence by Kaiser physicians treating Reinink's injuries and to enter a new order permitting such evidence if it is otherwise admissible.

FACTUAL AND PROCEDURAL BACKGROUND

1. Reinink's Fall at the Henrys' Residence; the Reininks' Complaint and the Henrys' Answer

Reinink was hired by the Henrys to clean and repair their swimming pool and its equipment. On April 3, 2003 Reinink worked at the Henrys' property from mid-afternoon until it began to get dark. As he was leaving, Reinink fell over what he believed was an unmarked, unlit concrete step along the walkway between the pool and an access gate at the south end of the property, injuring his shoulder. Paramedics transported Reinink to the emergency room at Kaiser where doctors treated him. Thereafter, Reinink underwent a series of surgeries to further treat his injury.

On June 26, 2003 the Reininks filed a Judicial Council form complaint for personal injuries (negligence/premises liability) against the Henrys, alleging "an unmarked, unexpected and unlit dropoff on the cement walkway" constituted a dangerous condition and the Henrys had breached their duty to correct the condition or warn Reinink about it. Sandra Reinink also asserted a claim for loss of consortium. In their answer to the complaint the Henrys alleged as an affirmative defense that the fault of others contributed to Reinink's injuries and their liability for noneconomic damages should therefore be allocated in direct proportion to their own percentage of fault,

2. The Trial Court's Order Excluding Evidence Kaiser's Negligence Contributed to Reinink's Injuries

Trial in the matter was scheduled to begin on July 9, 2007.² On June 28, 2007 the Henrys filed proposed jury instructions and a statement of the case to be read to the jury, describing the case as involving a trip and fall.³ On July 9, 2007 the Henrys filed an amended statement of the case that added the contention "[Reinink's health care] providers were negligent in the treatment of the plaintiff." According to the Henrys, Reinink's shoulder had only been dislocated with a minor fracture when he fell. Physicians at Kaiser, however, had aggravated that injury and committed malpractice when they broke Reinink's shoulder in four places while trying to put it back into place, necessitating the surgeries. The Henrys also filed new proposed jury instructions regarding medical malpractice.

The Reininks objected to expanding the scope of the trial to include Kaiser's alleged negligence in treating Reinink's injury because, among other reasons, they had not named Kaiser as a defendant in their lawsuit and the Henrys had not sought to include Kaiser by way of cross-complaint. Relying on Marina Emergency Medical Group v. Superior Court (2000) 84 Cal. App.4th 435, 439-441, 100 Cal.Rptr.2d 866 (Marina), in which Division One of this court held an emergency room physician in a medical malpractice action was entitled under section 1431.2 to introduce evidence of the plaintiffs personal physician's subsequent negligence in treating the plaintiff even though the personal physician had been voluntarily dismissed from the case, the Henrys argued they were entitled to introduce evidence of Kaiser's negligence because their liability for the Reininks' noneconomic damages was limited to their proportionate share of fault in causing the injuries. The trial court disagreed, concluding Marina was limited to medical malpractice actions in which one physician is seeking to allocate fault to a subsequent treating physician. The court stated, "I just read the case, and I do not believe that you are allowed to [introduce evidence of Kaiser's negligence] after reading the case because they were all medical malpractice cases, and one would take liability against the other. This is not a medical malpractice case, and we are not going to try the issue whether or not there was medical malpractice. They're not parties to this case, and it would take up so much time that it's not worthwhile doing it."

On July 11, 2007, during further proceedings before the trial court on motions in limine, the Henrys requested the court revisit its decision precluding them from introducing evidence of Kaiser's negligence. After extensive argument the court reaffirmed its previous ruling: "It's still my opinion that the premises liability defendants still can't give the comparative fault of a malpracticing [sic] physician as a defense or an apportionment of the wrongdoing. ... It's a completely different class of negligence. And as plaintiffs counsel said, it's comparing apples versus oranges." The court continued the trial date to permit the Henrys to seek writ relief from this court.

3. The Writ Petition

On July 20, 2007 the Henrys petitioned this court for a writ of mandate compelling the trial court to vacate its order precluding them from presenting evidence of Kaiser's negligence and to enter a new order permitting them to do so. The Henrys also sought an immediate stay of the trial court proceedings. On July 23, 2007 we issued an order to show cause why the requested relief should not be granted and stayed all trial court proceedings.

CONTENTION

The Henrys contend they are entitled under section 1431.2 to introduce evidence of Kaiser's negligence to limit their liability for noneconomic damages to their percentage of fault.⁴

DISCUSSION

1. Proposition 51 Limits Liability for Noneconomic Damages to Several Only When Liability Is Based Upon Comparative Fault

The basic rules governing comparative responsibility and apportionment of liability among multiple tortfeasors are not seriously disputed by the parties. "Under well-established common law principles, a negligent tortfeasor is generally liable for all damage of which his negligence is a proximate cause.... A tortfeasor may not escape this responsibility simply because another act—either an `innocent' occurrence such as an `act of God' or other negligent conduct—may also have been a cause of the injury." (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586, 146 Cal.Rptr. 182, 578 P.2d 899 (American Motorcycle); see Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 993, 60 Cal.Rptr.2d 103, 928 P.2d 1181.)

"In cases involving multiple tortfeasors, [this] principle ... has commonly been expressed in terms of `joint and several liability.'" (American Motorcycle, supra, 20 Cal.3d at p. 586, 146 Cal.Rptr. 182, 578 P.2d 899.) In American Motorcycle the Court concluded its adoption of principles of comparative negligence in Li v. Yelloiv Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, which eliminated the all-or-nothing doctrine of contributory negligence, "does not warrant the abolition or contraction of the established `joint and several liability' doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury." (American Motorcycle, at p. 582, 146 Cal.Rptr. 182, 578 P.2d 899.) However, to minimize the hardship on defendants from such a rule, "the American Motorcycle court held (1) that plaintiffs should no longer have the unilateral right to determine which defendant or defendants should be included in an action and that defendants who were sued could bring other tortfeasors who were allegedly responsible for the plaintiffs injury into the...