455 N.E.2d 1075 | Ohio Ct. App. | 1982
Lead Opinion
This action was commenced by the filing of a complaint by the plaintiff, James Williams, against defendants-appellants, Cincinnati Yellow Cab Company and Donald F. Gragston, and against defendant-appellee, Marianne McDermott, seeking damages for injuries received in two automobile accidents, the first occurring on June 23, 1979, when a taxicab operated by Gragston collided with a vehicle operated by the plaintiff. The complaint alleged injuries to plaintiff's "teeth, head, neck, back and other parts of his body causing him pain and suffering and permanent disability." The complaint's third cause of action alleged a second automobile collision on August 11, 1979, between automobiles operated by plaintiff and by appellee McDermott, in which plaintiff was alleged to have received injuries to "his head, neck, back, legs, and other parts of his body causing him pain, suffering, and permanent disability." Damages were demanded against the defendants "jointly and/or severally." Defendants-appellants answered and cross-claimed against appellee McDermott, asserting, inter alia, that if liable at all, they were liable only for injuries suffered in the accident prior to the August 11, 1979, collision, and, alternately, that any verdict against appellants "will have been brought about and caused by the actions of * * * McDermott, and not by reason of any negligence on the part of [defendants-appellants]," and demanding judgment against McDermott for any sums recovered by plaintiff against appellants. Appellee McDermott, after answering, moved to dismiss the cross-claim of appellants. This motion was opposed and briefed; it was ultimately granted by the trial court. Appeal was timely filed pursuant to certification under Civ. R. 54(B), with one assignment of error presented for review: that the trial court erred as a matter of law in dismissing the cross-claim for contribution of defendants-appellants against defendant-appellee.
The question posed in this appeal, while quite limited, is not without its small perplexities. Both sides cite the contribution statutes, R.C.
In Ryan, the plaintiff's car had been struck by an automobile operated by one Boley, plaintiff suffering back injuries requiring initial treatment and hospitalization. Five months later, plaintiff's car was again struck by one Mackolin, resulting in further problems to his back requiring surgical procedures. Ryan then filed suit, joining as defendants both Boley and Mackolin, and prayed for judgment "against the defendants, either jointly or severally." Id. at 214. A demurrer was sustained based on misjoinder of the defendants and of the causes of action, and improper joinder of causes of action. The court of appeals reversed and the Supreme Court sustained the reversal.
It is apparent from the decision and the syllabus in Ryan that two questions concerned the Supreme Court: first, *371 whether a joinder of the two tortfeasors as parties in one action was permissible where the successive torts were separated and unrelated in time, place or source; and, second, whether the liability of the tortfeasors was, as prayed for in the complaint, a joint as well as a several liability. The second question is of obvious pertinence to the instant inquiry.
Addressing the first question, the court examined the then controlling statute, R.C.
"Successive torts, separated and unrelated in time, place or source, constitute a `series of occurrences' within the meaning of Section
There is no reason to believe (and the question is not raised here) that the substitution of the substantially similar Civ. R. 20(A) for R.C.
The second question, concerning the joint or several liability of the tortfeasors, was next addressed by the Ryan court. Although not debated in terms of the contribution statutes, R.C.
"The concurrence required in Ohio, so as to permit not only the joinder of, but a joint judgment against, both tort-feasors, isnot in the production of an injury, but in the negligent placement of plaintiff by the first tort-feasor in a zone of danger so that the negligence of the second tort-feasor injures plaintiff while involuntarily in that zone of danger." (Emphasis added.) Id. at 220.
Applying this rule to the Ryan facts, the court concluded against joint liability of the tortfeasors in the following words:
"Although we are obliged to indulge in every inference favorable to the *372
pleader, we cannot ignore the allegation in the petition herein that following the first collision Ryan was hospitalized and received medical treatment for an injury to his back. The nature and extent of the disabling effect of that collision having been subject to medical scrutiny, we cannot assume that however indivisible in effect plaintiff's back injury became after the second collision, it will be incapable of separation as tocause. The sequence of events here is not such that, however difficult, it should be insurmountable to chart the course of cause to effect as a subsequent event adds its force to the flow. See Milks v. McIver,
We are unable to distinguish in any material respect the allegations of the instant complaint from these summarized above in Ryan. Here, as there, the plaintiff was hospitalized and received medical treatment after the initial injury. Here, as there, one may not assume that however indivisible in effect the first injuries became after the second accident, the matter will be incapable of separation as to cause. This matter is not aMaddux, supra, chain-reaction accident rendering the determination of causation problematical. We would conclude, therefore, on authority of Ryan, that the instant tortfeasors were not concurrent tortfeasors jointly liable for the plaintiff's injuries, but that they were severally liable for the consequences of their several torts.
The task of the trier of facts under these circumstances, where the joinder of non-concurrent tortfeasors is permissible but joint liability is not available, is set out in paragraph three of the syllabus of the Ryan case, as follows:
"Section
Applied here, appellants would be liable to the extent that their default contributed to plaintiff's injuries, and appellee to the extent that her default contributed to the injuries. The duty of establishing and separating the two is the burden of plaintiff which, while arguably difficult, is clearly not impossible under the circumstances of the case.
The sole remaining question is whether the enactment, subsequent to Ryan, of the contribution statutes requires a change in the rule set forth above. We think not. We find no express or implied requirement in the language of R.C.
Appellant's assignment of error is accordingly overruled, and the judgment is affirmed.
Judgment affirmed.
SHANNON, P.J., concurs.
BLACK, J., dissents.
"(A) * * * where two or more persons are jointly or severally liable in tort for the same injury to person or property * * *, there is a right of contribution among them even though judgment has not been recovered against all or any of them. * * *" (Emphasis added.)
Appellants argue that the similarity of body parts alleged to have been injured in the separate accidents comports with the statutory requirement that it be the "same injury," while appellee argues that whether or not the same leg was reinjured (for instance), it can logically never be the "same injury" when two separate incidents or occurrences are involved.
Dissenting Opinion
I respectfully dissent. In my opinion, it was error to dismiss with prejudice the first tortfeasor's (Gragston's) cross-claim against the second tortfeasor (McDermott), because I believe that under certain circumstances, however remote in possibility, Gragston could demonstrate that he is entitled to relief under R.C.
The dismissal is based, not on evidence of what injury or injuries were caused by each tortfeasor and what was the relationship between those injuries, but on the broad and unsubstantiated allegations of the pleadings. The dismissal has the effect of precluding any recovery between the tortfeasors (whether the first against the second or vice versa) under any and all circumstances, simply because they were not concurrent tortfeasors. The wrongful acts in the instant case were wholly independent of one another, separated in time and space, but the injured party (Williams) claims that as the result of these separate acts, he received permanent injuries to his head, neck, back and other parts of his body. Any one part might have been twice injured. It is conceivable, by way of example, that the injuries to a leg are permanent and will result in seventy percent disability, i.e., twenty percent was caused by the first tort and fifty percent by the second tort. When the tortfeasors are joined in the same trial, the trier of the facts will in the usual trial be required to allocate the "proportionate share of the common liability," to quote from R.C.
I would give effect to the language used by the legislature. The right of contribution was given to tortfeasors severally liable as well as those jointly liable. No requirement that the torts be "concurrent" is found in the statute. The "proportionate share of the common liability" is to be determined by considering relative degrees of fault, and no party can be compelled to contribute beyond his proportionate share of the common liability.
The phrase "same injury," in my opinion, is not limited to mean only a single trauma jointly and concurrently caused. It has a broader meaning, this being a statute that creates new rights of contribution previously denied under the common law. The phrase refers to the ultimate harm suffered by the injured party when caused by two or more torts, whether the torts were concurrent, joint, separate or independent. The purposes *374 are to insure full recovery to the injured party and to divide the liability among the tortfeasors who caused that harm in accordance with their proportionate share of the common liability.