Arizona Supreme Court Confirms Abolishment of Original Tortfeasor Rule
For more than thirty years, Arizona law has allowed juries to allocate fault among all who contribute to an injury. On July 18, 2016, the Arizona Supreme Court unanimously re-affirmed Arizona’s commitment to “comparative fault” by reversing a trial court’s decision that attempted to reconcile “full allocation” of fault with a much older doctrine that made the “original” or first in- line tortfeasor legally responsible for all injuries resulting from an occurrence regardless of the fault of subsequent tortfeasors. In Cramer v. Starr, No. CV-15-1317- PR, filed July 18, 2016, the Court held that the “original tortfeasor rule” (“OTR”) was abolished by the Arizona Legislature with the enactment of the Uniform Contribution Among Tortfeasors Act (“UCATA”), ARS §§ 12-2501 to 12-2509, including the comparative fault provision, ARS § 12-2506, which extinguished joint and several liability, subject to three exceptions.
In Cramer, the plaintiff was injured in a car accident with petitioner-defendant Cramer. Following the accident, plaintiff had spinal fusion surgery performed by a physician to treat her injuries from the car accident. The defendant driver designated the physician as a non-party at fault, alleging that the surgery was unnecessary and made plaintiff worse. After the defendant filed a notice of nonparty-at-fault against the physician, the trial court granted partial summary judgment in favor of plaintiff by striking the defendant’s notice of nonparty-at- fault as inconsistent with the OTR.
The trial court, without discussing ARS 12-2506, ruled that the enactment of comparative fault did not abolish the OTR. This rule, found in the Restatement (Second) of Torts § 457 (1965), provides that a tortfeasor is subject to liability for additional injuries a plaintiff suffers when they are caused by plaintiff’s third-party physicians when treating the plaintiff’s injuries from a tort, irrespective of whether such acts are performed in a proper or negligent manner.
After reviewing the applicable legislative history, statutory provisions, and case law, the Arizona Supreme Court reaffirmed Arizona’s strong commitment to several liability and apportionment of fault, by holding:
In view of these statutory directives, we today hold that the common-law “original tortfeasor rule” (“OTR”) 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 plaintiff for injuries allegedly sustained from the defendant’s tort.
We further hold that under the OTR, an actor who negligently causes an injury that reasonably necessitates medical treatment may also be liable for any enhanced harm proximately resulting from the actor’s negligence, including subsequent injury and related damages negligently but foreseeably caused by a medical provider. Any such liability, however, 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 between the parties and nonparties in accordance with Arizona statutes.
Comparative fault also applies when a party settles out of a case or a plaintiff chooses not to sue a tortfeasor. It is common in multi-party medical malpractice cases that the alleged “original tortfeasor” healthcare provider may assert that an alleged injury is either aggravated or worsened by subsequent healthcare providers. When the healthcare providers are defendants in the case, comparative fault applies. However, when healthcare providers either settle out of the case or the plaintiff decides not to sue them, a designation of nonparty- at- fault may be made. The Supreme Court recognized that allowing the OTR to coexist with comparative fault would create a large judicial exception to comparative fault, which was not intended by the Legislature, and defeats the purpose of protecting defendants from bearing more than their fair share of liability for a plaintiff’s injury.
Arizona’s pure comparative fault statutory scheme provides clear, bright line rules that are easy for current and future litigants to know, understand, and apply regarding allocation of fault among alleged tortfeasors. The statute protects defendants from bearing more than their fair share of liability, and, contrary to the OTR, prevents a partially responsible defendant from being held liable for damages caused by a codefendant or nonparty. Moreover, allowing the OTR would likely result in a return to litigation over contribution and indemnification, which the pure comparative fault provision of ARS § 12-2506(D) has virtually eliminated.