Harris v. City of Compton

HANSON (Thaxton), J. Concurring.

— Affirmance of the instant case is required under well-established rules of appellate review and controlling decisional law as discussed in the lead opinion. However, there are troubling aspects of this case by applying current decisional law which appear to strain reason, and run afoul of notions of basic fairness which should be brought to the attention of the state Legislature.

Here, the apportionment of fault as between named defendants Jackson and Fuller was never determined by a trier of fact since defendant Fuller was not served with the complaint and the cross-complaint was not tried with the basic action. (See Procedural History in the lead opinion.) However, my review of the entire record (augmented by the superior court file and all exhibits) leads me to conclude, after giving full faith and credit to that which constituted substantial evidence supporting the verdict as discussed in the lead opinion, that any fault attributable to Officer Jackson as a legal cause is minimal (in my view, less than 5 percent); while fault attributable to named, unserved, and presumably insolvent defendant Fuller was at least 95 percent.1 Yet, pursuant to American Motorcycle Assn. v. *13Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], the besieged taxpayers of the City of Compton who were not involved in the accident (applying the principle of respondeat superior) must pony up 100 percent of the half-million dollar judgment.

Such a result cannot be reconciled with the rationale in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], bottomed on the proposition that “responsibility and liability for damage [shall be assigned] in direct proportion to the amount of negligence of each of the parties.” (Id., at p. 829.)

If it is reasonable and fair in single plaintiff and defendant cases to hold that the extent of fault should govern the extent of liability, as in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, is it reasonable, fair and good public policy, in multiple defendant cases, to continue to hold a solvent defendant with minimum fault liable for the full judgment (i.e., pay the major unserved or insolvent tortfeasor[s] portion of the judgment) as held in American Motorcycle Assn., supra, 20 Cal.3d 578?

In my view, this case is a prime example justifying the concerns expressed by Justice William P. Clark in his dissenting opinions in Li v. Yellow Cab Co., supra, 13 Cal.3d at pages 832-834 and American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d at pages 608-617, in which he urged legislative review and action. In Li, the state Supreme Court judicially abrogated the defense of contributory negligence2 and adopted in its place a system of “pure” comparative negligence.

The Li court, in rejecting the doctrine of contributory negligence, said: “The basic objection to the doctrine [of contributory negligence]—grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability—remains irresistible to reason and all intelligent notions of fairness.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 811.)

The Li court in rationalizing its adoption of a “pure” comparative negligence rule enunciated the principle that the extent of liability must be *14governed by the extent of fault. The court said, “liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault [fn. omitted], (id., at p. 813; italics added) and “the fundamental purpose of [the rule of pure comparative negligence] shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. (Id., at p. 829; italics added.)

Justice Clark in his strong dissent in Li (joined by Justice Marshall McComb) asserted that the court’s action invaded the province of the Legislature. He accurately pointed out that California is a code state and that Civil Code section 1714 codifies the defense of contributory negligence and that the power to enact and amend statutes is constitutionally entrusted to the Legislature and not the judiciary. He further correctly noted that the court is not an investigatory body or equipped, as is the Legislature, to fairly appraise the merits of these competing systems. (See Li v. Yellow Cab, supra, 13 Cal.3d 804, 832-834.)

Three years after handing down Li, the state Supreme Court in American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, was faced with the issue of joint and several liability, i.e., whether a plaintiff or a solvent defendant should bear the portion of the loss attributable to unknown or judgment proof defendants.

The American Motorcycle court declared that its adoption of the “pure” comparative rule in Li did not warrant the abolition of joint and several liability of concurrent tortfeasors. The court held that a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only in proportion to the amount of negligence attributable to the person recovering.

In light of the principles underlying its previously adopted rule of comparative negligence in Li, the American Motorcycle court modified the common law equitable indemnity doctrine to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis. However, this modification of the common law equitable indemnity doctrine does not solve the problem of a slightly responsible target “deep pocket” defendant’s requirement to pay all of the damage award since the tortfeasor[s] primarily at fault may be judgment proof.

Justice Clark in his dissent in American Motorcycle stated that the majority’s “attempted rationale for rejection [in American Motorcycle] of the Li principle [the extent of liability must be governed by the extent of fault] *15insofar as it is based on a newly discovered public policy is entitled to little weight. The public has no such policy and any attack on the principle based on logic or abstract notions of fairness fail. . . . [f] If not applied across the board the Li principle should be abandoned. The reason for abandonment applies not only to multi-party cases but also to two-party cases, warranting total repudiation of the principle, not merely the majority’s partial rejection” (id., at p. 615) and that any new policy should be left to the Legislature.

Justice Clark stated: “I do not suggest return to the old contributory negligence system. The true criticism of that system remains valid: one party should not be required to bear a loss which by definition two have caused. However, in departing from the old system of contributory negligence numerous approaches are open, but the Legislature rather than this court is the proper institution in a democratic society to choose the course.” (Id., at p. 616.)

He concluded: “Again, it must be urged that this is a subject to which the Legislature should address itself. . . . The two most modern trends of compensating accident victims run in directly contrary approaches—the non-fault approach where negligence may be ignored and the comparative fault approach where the quantum of negligence is to be meticulously divided among the parties. No area of the law calls out more for a clear policy established by democratically elected representatives. (id., at p. 617; italics added.)

Justice Clark recommended that “a full evaluation should be made of society’s compensation to accident victims through our tort system in comparison to all other means used by society to compensate victims. A study should include such matters as the relative workings of the liability insurance system in providing benefits, disability insurance and employer benefits, medical insurance, workers’ compensation, insurance against uninsured defendants, Medicare, Medi-Cal and the welfare system. . . . The evidence gathering and hearings necessary for the requisite study are within the capabilities of the Legislature; this court is institutionally incapable of undertaking it.” (Id., at pp. 612-613.)

That the Legislature is the proper and only branch to establish such public policy is unassailable. Indeed, a chief reason why California became a code state was in recognition of the doctrine of separation of powers embodied in our federal and state Constitutions.

*16“ ‘There are only certain propositions which have become maxims of government, one of which is that the legislative and judicial departments should be kept distinct, or in other words, that the same person should not be both law-giver and judge. There is no need of arguing about it. The maxim is founded on philosophy and experience. It has taken ages of struggle to establish it. And here it is. We profess to take it for absolute truth; we talk of it as one of the fundamental doctrines of modern government; we write it at the head of our constitutions; but we violate it every hour that we allow the judges to participate in the making of the laws. ’ ” (See Palmer & Selvin, The Development of Law in California (1954) p. 38, quoting from David Dudley Field (1886) 20 Am.L.Rev. 1.)

The purpose and benefits to be derived from the Legislature addressing this vexing problem are reflected in the views expressed by Thomas W. Cooley as quoted in Palmer and Selvin, The Development of Law in California, supra, at pages 41-42: “ ‘Benefits are expected to be realized from codification as follows: It will relieve the law of very many uncertainties and doubts over which judges and lawyers now stumble and disagree; and which make legal advice and judgment uncertain; it will cover many points upon which hitherto there have been no judicial decisions, so that the law is still unknown, and when declared under the common-law system would have retroactive and presumably unjust operation; it will render innumerable and confused decisions, now constantly appealed to as precedents, unimportant, thereby relieving lawyers and judges of the onerous burden of studying them; it will render the administration of the law more easy, speedy and certain; it will stop the process of judicial legislation which now goes on at the will of the judges, and remit the making of the law to the department of the government to which the duty properly belongs, and it will put some check upon the great multiplication of law reports and treatises. It can not be denied that these are desirable ends; and if they were certain or even likely to be attained, provision for codification would be the first duty of the law-maker.”’

Having established (1) that the Legislature and not the judiciary is the constitutionally mandated department of government charged with the responsibility of setting public policy which impacts so drastically on society concerning compensation of accident victims through our tort system, and (2) that the Legislature is far better equipped than the courts to investigate and reconcile the myriad of competing interests, the question is: Is it not time for the state Legislature to reevaluate the complex rules governing compensation of victims injured in tort cases involving multiple defendants—named, named but not served, unnamed, settled out, or insolvent in *17the wake of Li v. Yellow Cab Co., supra, 13 Cal.3d 804 and American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578?

A petition for a rehearing was denied October 8, 1985, and appellants’ petition for review by the Supreme Court was denied December 4, 1985.

Fuller, who was employed with his brother doing lawn service, was called as a witness by plaintiff’s counsel and testified that he was not aware that plaintiff’s Volkswagen was involved in the accident until three weeks before trial; that he just became aware of this when one of plaintiff’s attorneys personally subpoenaed him for trial; that he had bought the 1972 Grand Torino he was driving from his brother-in-law, Nathaniel Brown, about six months before the accident; that he was behind the police car “about a car and a half or so” and traveling “about 30, 25 to 30 miles per hour;” that he was aware that the traffic signal was red but that the police car “made a sudden stop” and he did not see the red taillights on the patrol car because some round spools (or table tops) obstructed his view of them; that he “probably could have avoided hitting the car in front—if the streets hadn’t been wet” and his brakes locked; and that he was not injured in the accident although the front of his car sustained damage to the headlights and grill.

The police, who came to the scene, cited Fuller for driving without a license; his license having been previously revoked in 1978 for driving under the influence of alcohol.

The traditional doctrine of contributory negligence (an “all or nothing” defense), of common law origin, was enacted into statutory law in California in 1872 in Civil Code section 1714. This doctrine was based on the principle that one should not recover for damages brought upon oneself which in turn was underpinned by the traditional Anglo-Saxon (i.e., American) emphasis on acceptance of individual responsibility. The doctrine came increasingly under fire by legal writers as being too harsh and inequitable because it failed to distribute responsibility in proportion to fault.