Monday, January 28, 2008
Court: Negligent Entrustment Liability Subject to Prop. 51
By Steven M. Ellis, Staff Writer
Proposition 51’s prohibition on apportioning non-economic damages jointly and severally applies to damages arising from negligent entrustment, this district’s Court of Appeal ruled Friday.
Reversing the decision of Los Angeles Superior Judge William F. Highberger, Div. One held that an unlicensed minor driver who was involved in a vehicle collision after she was negligently entrusted with a vehicle could not be held jointly liable for resulting non-economic damages because the tort of negligent entrustment did not impose vicarious or derivative liability that would except it from Proposition 51’s scope.
The matter arose after 16-year-old Anna Litovsky drove a vehicle on the wrong side of the road and crashed head-on into a Toyota driven by Paulette Bayer-Bel.
Litovsky and a friend had cut class and gone to a party “in the hills” with Anthony Mosley and Eugene Green in Mosley’s Chevrolet Tahoe. However, Litovsky asked Mosley to take her back to school when she realized people at the party were drinking and using drugs.
Both Mosley and Green refused to drive because they had been drinking, but Litovsky’s friend held a learner’s permit, so Mosley allowed the friend to drive his vehicle back to the school, accompanied by Green and Litovsky as passengers. Once the three arrived at the school, Green asked Litovsky to drive him back to the party, and Litovsky agreed, even though she did not have a driver’s license or a learner’s permit, and the collision occurred shortly thereafter.
Bayer-Bel sued Litovsky, Mosley, and Green, alleging for negligence against Litovsky as the driver of the vehicle and Mosley as its owner, and negligent entrustment against both Mosley and Green. At trial, Highberger granted Bayer-Bel’s motion for partial directed verdicts against Litovsky on the issues of negligence and causation, against Green on the issue of negligent entrustment, and against Mosley on the issue of negligent entrustment or negligence as an owner.
The jury allocated 60 percent of fault to Bayer-Bel, who was not wearing a seatbelt at the time of the collision. Of the remainder of fault, Litovsky was allocated 40 percent, Mosley 20 percent, and Green 40 percent.
However, Highberger, finding that all three defendants’ liability was based on something akin to respondeat superior or vicarious liability—rather than comparative fault—and therefore excepted from Proposition 51, entered a judgment making all three defendants jointly and severally liable for the entire amount of the judgment.
Proposition 51, as codified by Civil Code Sec. 1431.2, provides that defendants “shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.” Courts have determined that a defendant is not entitled to the benefits of Proposition 51 where he or she is liable only by reason of a derivative, non-delegable duty.
However, Justice Miriam A. Vogel rejected Highberger’s conclusion that Proposition 51 was not applicable in the matter.
“Because at least two of the defendants in our case (Litovsky and Green) were ‘independently acting tortfeasors who have some fault to compare’…, the exception relied on by the trial court to justify joint liability vis-à-vis Litovsky has nothing to do with this case,” Vogel wrote.
Holding that Litovsky’s liability for Bayer-Bel’s non-economic damages was several, and not joint, and that Litovsky was liable only for the amount of non-economic damages allocated to her by the jury, the court remanded the matter the trial court with directions to enter a new judgment in which Litovsky was jointly and severally liable for Bayer-Bel’s economic damages, but only severally liable for 40 percent of the 40 percent of Bayer-Bel’s non-economic damages.
Vogell was joined in her opinion by Justices Robert M. Mallano and Frances Rothschild.
Litovsky’s attorney, David H. Ryan, said he had not reviewed the opinion when contacted by the METNEWS, but that he was not surprised by the decision given the court’s apparent unwillingness to hear arguments he offered the day before the opinion was released.
Derek L. Tabone, who represented Bayer-Bel, maintained that the court had determined incorrectly that a negligent entrustment tort did not fall with the exception to Proposition 51, but he said that his client had not yet decided whether to seek review of the decision.
The case is Bayer-Bel v. Litovsky, B197829.
Copyright 2008, Metropolitan News Company