upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.
The provisions of Proposition 51 thus abrogated the rule of joint and several liability for non-economic damages
and mandates that tortfeasors will be liable in relation to their percentage of fault.
Proposition 51 has not yet been applied to situations involving multiple tortfeasors, some of whose conduct was negligent and others whose conduct was intentional and criminal. The Court finds that the instant case is not one where Proposition 51 applies because this is not a case where the principles of comparative fault apply.
California courts abolished the doctrine of contributory negligence as a bar to recovery in Li v. Yellow Cab. Co., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (Cal. 1975). Li instituted the principle of comparative fault for apportionment of damages providing that:
A comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. Id. at 1241.
Thus under Li, intentional conduct is excluded from the principles of comparative fault in California.
Apportionment of damages has been extended to cases of multiple tortfeasors where one defendant was strictly liable and another was liable in negligence, Safeway v. Nest-Kart, 21 Cal. 3d 322, 579 P.2d 441, 146 Cal. Rptr. 550 (Cal. 1978), and to a case of wilful misconduct by defendant and contributory negligence of plaintiff. Sorensen v. Allred, 112 Cal. App. 3d 717, 169 Cal. Rptr. 441 (Cal. App. 1980). However, principles of comparative fault have not been extended in California to situations where one person who causes an injury is guilty of intentional conduct, and another person who causes the same injury is negligent.
The defendant contends that the trend to apportion damages between strictly liable and negligent tortfeasors implies that apportionment should also extend to cases involving intentional and negligent tortfeasors, such as the instant case. The United States urges this Court to follow a recent New Jersey case which reviewed this issue and did allow apportionment among a negligent plaintiff, a negligent defendant and several defendants whose conduct was found to be intentional. Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (N.J. 1991). However, the Blazovic opinion acknowledged that California was a jurisdiction which had declined to extend principles of comparative fault to intentional conduct. Id. at 227-28. Moreover, California courts have shown a reluctance to rely on out-of-state interpretations of comparative fault principles, since in California, the principles are based solely on judicial decisions. See e.g. Sorensen v. Allred, 112 Cal. App. 3d 717, 169 Cal. Rptr. 441 (Cal. App. 1980).
Defendant further alleges that it would be inequitable to hold the United States liable for the full amount of damages because the injury was primarily caused by the intentional and criminal conduct of Gary Johnson.
Plaintiffs argue that inequity would result in allowing the defendant to escape complete liability for the injury because the defendant had a duty to prevent the criminal act of the third party. The Court recognizes the reasoning which would preclude apportionment between two tortfeasors when the duty of one encompasses the obligation to prevent the specific misconduct of the other. In this case, however, the Court does not need to rely on this causal connection to deny apportionment since there is substantial authority for not applying principles of comparative fault where intentional conduct is involved.
In conclusion, the Court finds under the circumstances of this case, neither Vikki Martin nor Elizabeth Martin may maintain a cause of action for negligent infliction of emotional distress under California law. Accordingly, summary adjudication is granted on these claims.
The Court finds California Civil Code §§ 1431.1-1431.5 (Proposition 51) inapplicable to the apportionment of any adjudged non-economic damages.
IT IS SO ORDERED.
DATED: December 3, 1991
HONORABLE JAMES WARE
UNITED STATES DISTRICT JUDGE