The Superior Court’s recent decision threatens to shift nearly a decade of legal precedent interpreting the Fair Share Act and revives issues for joint tortfeasor defendants under the traditional joint and several liability framework.
In 2011, the Pennsylvania legislature passed the Fair Share Act, 42 Pa. C.S. § 7102, which many believed addressed the perceived inequity of joint and several liability among joint tortfeasors. Under Pennsylvania’s traditional joint and several liability statutory framework, plaintiffs were unlikely to settle with defendants in cases with an indivisible injury caused by multiple tortfeasors where there were “deep pocket” defendants because a plaintiff could potentially recover the full verdict amount from the “deep pocket” defendant. For nearly 10 years, Pennsylvania courts interpreted the Fair Share Act as abolishing joint and several liability in most negligence cases, setting forth that defendants in negligence cases would generally only be liable for their fair share of liability, subject to the exceptions enumerated in 42 Pa. C.S. § 7102(a.1)(3).
The Superior Court of Pennsylvania’s recent opinion in Spencer v. Johnson, however, marks a sharp deviation from the widely accepted statutory interpretation that under the Fair Share Act, a defendant is liable only for its proportionate share of liability, when the proportionate share is less than 60%. In Spencer, Tina Johnson (Appellee/Cross-Appellant), worked for the Philadelphia Joint Board Workers United, SEIU (PJB) (Appellee/Cross-Appellant) and the PJB provided Ms. Johnson with a vehicle to perform union work. On October 16, 2014, Ms. Johnson drove the PJB vehicle to a small family gathering in West Philadelphia. Ms. Johnson’s husband, Cleveland Johnson, decided to move the PJB vehicle, despite being intoxicated and having a suspended driver’s license, because he thought the vehicle was obstructing a sidewalk where it was parked. When Mr. Johnson was moving the vehicle, he struck Keith Spencer (Appellant/Cross-Appellee) and Mr. Spencer suffered severe, catastrophic injuries.
In his Complaint, Mr. Spencer set forth claims of negligence and negligence per se against Mr. Johnson, claims of negligence, and negligence/negligence entrustment against Ms. Johnson, and claims of negligence/negligence entrustment, negligent hiring, negligent retention, and negligent supervision against PJB. After a five day jury trial, the jury found that all three defendants were negligent, and their negligence was each factual causes of harm to Mr. Spencer. The jury’s allocation of liability was: Cleveland Johnson (36%), Tina Johnson (19%), and PJB (45%).
Significantly, the apportionment of liability was such that no one defendant’s liability for negligence was found to be 60% or greater. Mr. Spencer argued that because PJB was Ms. Johnson’s employer, and because the combined apportionment of liability of Tina Johnson and PJB was greater than 60%, that PJB should be liable for the damages award as to all three defendants under the Fair Share Act. According to Mr. Spencer, the Fair Share Act did not preclude the trial court from molding the verdict when an employer’s negligence is less than 60%. The trial court rejected this argument based on the premise that Mr. Spencer’s Fair Share Act argument depended on a finding that PJB was vicariously liable, and the jury never made a specific finding that PJB was vicariously liable.
On appeal, the Superior Court of Pennsylvania concluded that the trial court erred in failing to grant Spencer’s motion to mold the verdict because the Fair Share Act did not in fact apply to this particular set of facts and circumstances. The Superior Court further reasoned that the Fair Share Act only applies in cases where a plaintiff’s contributory negligence is at issue, and there were no allegations that Mr. Spencer was contributorily negligent. The Court’s limited application of the Fair Share Act focused on the language of 42 Pa. C.S. § 7102(a), which states in pertinent part, “In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative…” (emphasis added). The Superior Court concluded that the plain language of the statute indicates that the Fair Share Act only concerns matters where a plaintiff’s own negligence may have caused or contributed to an incident.
Decision may signal a return to joint and several liability for joint tortfeasors
Tina Johnson and PJB have already filed an application for en banc review, and many business and industry groups support en banc review. If upheld, Spencer will change the landscape of negligence liability in Pennsylvania and threaten to disrupt nearly a decade of established legal precedent interpreting the Fair Share Act. This decision has the potential to revive many of the issues and problems associated with traditional joint and several liability principles as they relate to settlements, joint tortfeasor releases, and verdict slips.