Why is Apportioning Damages Important?

Posted Tuesday, October 04, 2016 by Ed Harper

Dorothy Phennah, (see Phennah v Whalen 28 Wn. App. 19 (1980)), was injured in two auto accidents about three months apart. She admittedly had a pre-existing arthritic condition and had been seeing her physician for care for this condition. In two successive collisions, she injured her neck and back. She was not at fault for either collision. In trial, the court dismissed her case because she did not provide any information dividing up the responsibility of her injuries and the long-lasting effect of these injuries.

In this case her doctor testified that neither accident caused her underlying arthritic condition, “each affected the severity and permanence of her disability and that it is impossible to state which accident caused what degree of injury and permanence.” Phennah, at 21. The plaintiff provided no testimony for segregating the damages among the various causes and this was fatal to her case, at least initially.

However, the Washington Court of Appeals (Div. 1) states otherwise: “Once a plaintiff has proved that each successive negligent defendant has caused some damage, the burden of proving allocation of those damages among themselves is upon the defendants’ if the jury finds the harm is indivisible, then the defendants are jointly and severally liable for the entire harm.” Phennah, at 29.

This holding is based on RCW 4.22.070(1) which stands for joint and several liability. “…the liability of each defendant shall be several unless a party was acting in concert with another party or person…or when a person was acting as an agent or servant of the party, or the trier of fact determines the claimant or party suffering bodily injury or incurring property damages was not at fault. If it is determined that the claimant or the person injured or damaged was not at fault, the defendants against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares of the claimant’s total damages.”

Thus, when a jury is provided the law, the defendant has the burden to establish their percent of responsibility if any, of plaintiff’s injuries. Washington Pattern Jury Instruction 41.04 states “If you find that more than one entity was negligent, you must determine the percentage of the total negligence is attributable to each entity that proximately caused the injury and/or damage to the plaintiff…”

So, why is this important? The court provided reasoning emanating from basic fairness. It would be unjust for an injured plaintiff, to be deprived of the right of redress, when independent wrong doers have caused the injuries.

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