In the nearly thirty years since the Arizona Legislature abolished joint and several liability, Arizona's comparative fault statute has been subject to periodic challenges from the plaintiffs' bar, seeking to add to the few, specifically enumerated exceptions to the rule.
Yesterday, the Arizona Supreme Court rejected another attack with its opinion in Cramer v. Starr, CV-15-01317, where the plaintiff sought to use the common law "original tortfeasor rule" to preclude the defendant from attributing fault to a doctor whose negligent care allegedly resulted in the plaintiff becoming disabled following a minor rear-end collision.
As part of the firm's commitment to devoting pro bono resources to promote fairness for defendants in civil proceedings, Bowman and Brooke prepared an amicus brief on behalf of the Arizona Association of Defense Counsel (AADC). The Court's opinion adopted the plain-language approach that the AADC advocated in its brief, finding statutory language dispositive and refusing to read into the statutes exceptions to comparative fault that the Legislature did not adopt or intend.
The plaintiff in Cramer was involved in a rear-end collision. Following the accident, she sought medical treatment for lower back pain, which she attributed to the accident. Nearly a year after the collision, plaintiff underwent back surgery, which was unsuccessful and left her nearly disabled. Plaintiff then sued the driver of the vehicle who had rear-ended her, seeking damages for her enhanced injuries.
The defendant driver retained a doctor to perform an independent medical examination. This doctor concluded that the unsuccessful surgery was not medically necessary and, moreover, that the collision at issue could not have caused the damage the plaintiff attributed to the accident. Accordingly, the defendant filed a notice of nonparty at fault, seeking to allow the jury to apportion fault to the nonparty doctor who had performed plaintiff's unsuccessful and, arguably, unnecessary surgery.
Arguing that the "original tortfeasor rule" rendered the defendant driver exclusively liable for the full extent of her injuries—including any subsequent medical negligence—the plaintiff moved to strike the defendant's notice of nonparty at fault. The trial court granted plaintiff's motion. After the Arizona Court of Appeals declined to hear the case, the Arizona Supreme Court accepted review.
In a unanimous decision, the Arizona Supreme Court reversed the trial court's order, concluding that the plain language of the comparative fault statute requires a jury to compare the fault of all parties and nonparties and that the original tortfeasor rule "does not preclude a defendant from alleging and proving, or the trier of fact from considering and finding, fault of a nonparty physician who treated the plaintiff for injuries allegedly sustained from the defendant's tort." In doing so, it acknowledged that a jury may apportion fault to an original tortfeasor for subsequent harm, but cautioned that any such liability "results not from automatically imputing the medical negligence to the original tortfeasor, but instead depends on the trier of fact's assessment and allocation of fault."