Shacter v. Richter

Sheran, Justice

(concurring specially).

If the order for consolidation was made in contemplation of separate trials to determine liability with respect to the November 5, 1959, accident; then liability with respect to the April 22, 1963, accident; and, finally, damages as against defendants previously found liable to plaintiff, it would not constitute, in my opinion, an abuse of discretion justifying prohibition. In such event, the defendants sued on account of one of the accidents would not be burdened by required participation in proceedings to determine liability in the other. Only those defendants found liable would be required to contest plaintiff’s claim for dam*94ages resulting from the composite injury, and the district court- would not be foreclosed from requiring joint trial of the damage issue in a case -where the total and intertwined loss has been caused by successive tortfeasors.

Separate trial of issues of liability and damages is within the contemplation of Rule 42.02.1 . '

- Where a unitary .injury results from successive but separate torts, there is as between the tortfeasors a common question of fact, i. e., to what extent did the injuries result from the first accident and to what extent from the second. This may not be a logical certainty, but experience suggests that it is a .practical one. In separate trials, the plaintiff suffering from an injury due to two unrelated accidents can be expected to attribute the bulk of his trouble to the defendant at hand; and that defendant can be expected to insist that the absent party was the one whose wrong really caused the loss. Once liability is established, a more fair allocation of responsibility for the damage caused by one and aggravated by another might be expected if the plaintiff and the successive tortfeasors litigate the damage question at one time. At least, it has not been made to appear that the trial court was clearly exceeding the bounds of his discretion in so deciding.

While I agree with the view expressed in the dissenting opinion that a consolidated trial of the liability issue against both sets of defendants would be onerous, it has not been made to appear clearly that this was planned. We can assume, I think, that the order for consolidation was made so that the liability issues could be tried separately *95and the damage issue only tried jointly. I therefore agree with the majority conclusion that the writ'should be discharged.

For discussion of the feasibility of separate trials for liability and damage issues, see Separate Trials on Liability and Damages in “Routine Cases”-. A Legal Analysis, 46 Minn. L. Rev. 1059; Weinstein, Routine Bifurcation of Jury Negligence Trials: An Example of the Questionable Use of Rule Making Power, 14 Vanderbilt L. Rev. 831; Miner, Court Congestión: A New Approach, 45 A. B. A. J. 1265. See, also, Separation of Issues of Liability and Damages in Personal Injury Cases: An Attempt to Combat Congestion by Rule of Court, 46 Iowa L. Rev. 815; Trial Practice: Separate Trials on the Issues of Liability and Damages, 17 Okla. L. Rev. 114; Original Separate Trials on Issues of Damages and Liability, 48 Va. L. Rev. 99.