Prop. 51, known as Multiple Defendants Tort Damage Liability Act, abolished the rule of joint and several liability with respect to noneconomic damages, defined as “subjective, nonmonetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” In cases to which Prop. 51 applies, each defendant’s liability for these damages is several only, in direct proportion to each defendant’s percentage of fault. CC §1431.2(a),(b)(2). This means that each defendant’s liability for these damages is several only in direct proportion to each defendant’s percentage of fault. DaFonte v. Up Right, Inc. (1992) 2 C4th 593, 596, 7 CR2d 236. This legislation was passed to prevent going after deep pocket co-defendants for the entire amount of non-economic damages regardless of the amount of the defendant’s fault in the lawsuit. Dozens of lawsuits were filed after Prop 51 was passed in California.
As of Prop. 51, a defendant has no right of contribution or indemnity against another third party joint defendant with respect to plaintiff’s noneconomic damages. Defendant’s remedy is to assert as a defense that it is only partly responsible (i.e., the third person shares culpability) for plaintiff’s noneconomic injuries. Aetna Health Plans of Calif., Inc. v. Yucaipa Calimesa Joint Unified School Dist. (1999) 72 CA4th 1175, 1193-1194, 85 CR2d.
Prop. 51 has impacted greatly in strategizing plaintiff’s cases (i.e. personal injury cases) because under Prop. 51, collectability of pain and suffering would have an issue unless a deep pocket defendant is substantially at fault for economic damages in a given case. As a personal injury lawyer in Sacramento, CA, our firm Law Offices of Peter Park always takes Prop. 51 into consideration from the investigation phase of any client’s case. Opponents of this legislation argued that this law produces injustice when a plaintiff cannot collect for his or her damages merely because a defendant is broke. On the other hand, whether another co-defendant who is only at fault by 10% of the economic damages must contribute and pay for most of the non-economic damages is fair is another injustice for the defendant.
One interesting point to note in applicability of Prop. 51 in a jurisdiction, which adopted modified comparative negligence scheme where a plaintiff can only recover if the defendant’s fault is at least 50% or 51%. (Some jurisdictions adopted 50% and some 51% under their modified comparative negligence rule whereas California adopted a pure form of comparative negligence.) In those jurisdictions, co-defendants whose fault is more than 51% combined will be liable for the entire damages to the plaintiff. Although it is possible to extend the percentage liable for non-economic damages based on the fault, it seems to create a contradictory policy by adopting a rule similar to the Prop 51 without abolishing joint and several liability entire as to economic damages because it would mean the deep pocket defendant would still be inconsistently responsible for other party created economic damages but not non-economic damages. What justifies this seeming inconsistency would be a political matter but not without a legal analysis for the contrary.