Exceptions to the Fair Share Act Continued

As discussed in my recent post "Circumventing the Fair Share Act....Maybe" I think some major battles over Pennsylvania's Fair Share Act are soon to unfold. Specifically, there are going to be some wars over the continued applicability of joint and several liability. Though I am having research conducted right now on the topic, I am guessing there is no present case law in PA analyzing specific case facts that implicate the Fair Share Act's exceptions. These initial arguments will probably turn, in part, on the rationale's of other court's around the country who have already faced the same questions.

One important case may be Merrill Crossings Assoc. v. McDonald which I have linked to. The first step in determining the applicability of the holding in this case is to compare the language of the Florida Comparative Negligence Statute to Pa's Fair Share Act. The Fair Share Act states, in part:

(3)  A defendant's liability in any of the following
        actions shall be joint and several, and the court shall enter
        a joint and several judgment in favor of the plaintiff and
        against the defendant for the total dollar amount awarded as
        damages:
                (i)  Intentional misrepresentation.
                (ii)  An intentional tort.
                (iii)  Where a defendant has been held liable for not
            less than 60% of the total liability apportioned to all
            parties.
                (iv)  A release or threatened release of a hazardous
            substance under section 702 of the act of October 18,
            1988 (P.L.756, No.108), known as the Hazardous Sites
            Cleanup Act.
                (v)  A civil action in which a defendant has violated
            section 497 of the act of April 12, 1951 (P.L.90, No.21),
            known as the Liquor Code.

The pertinent portion of Florida's statute states:

(4) APPLICABILITY.-

(a) This section applies to negligence cases. For purposes of this section, “negligence cases” includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort or breach of warranty and like theories. In determining whether a case falls within the term “negligence cases,” the court shall look to the substance of the action and not the conclusory terms used by the parties.

(b) This section does not apply to any action based upon an intentional tort.§ 768.81, Fla. Stat. (1993).

The critical discussion in Merrill Crossings was the following:

We also agree with the district court that the language excluding actions “based on an intentional tort” from the statute gives effect to a public policy that negligent tortfeasors- such as those in negligent security cases- should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence. See, Hall v. Billy Jack's, Inc, 458 So.2d 760 (Fla.1984) (lounge proprietor owes its patrons the duty to protect them from reasonably foreseeable harm); Holley v. Mt. Zion Terrace Apts., Inc., 382 So.2d 98 (Fla. 3d DCA 1980) (the deliberate act of the rapist and murderer did not constitute an independent intervening cause which would insulate the landlord from liability for failing to provide reasonable security measures); see also Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985); Whelan v. Dacoma Enterprises, Inc., 394 So.2d 506 (Fla. 5th DCA 1981); Rosier v. Gainesville Inns Associates, Ltd., 347 So.2d 1100 (Fla. 1st DCA 1977) (a landlord's breach of an implied duty to provide locks and maintain common areas in safe condition may render landlord liable to the tenant for injuries resulting from unauthorized entry and criminal acts within the premises).

The Restatement (Second) of Torts states, “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Restatement (Second) of Torts, § 449 (1965). Thus, it would be irrational to allow a party who negligently fails to provide reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against....and Boom goes the dynamite.

The Florida law, different from the Fair Share Act, states “In determining whether a case falls within the term ‘negligence cases,’ [such that comparative fault would be required] the court shall look to the substance of the action and not the conclusory terms used by the parties.” So when looking “to the substance of the action and not the conclusory terms used by the parties,” the Court held that the substance of a negligent security case is an intentional tort, not just negligence. The Court then pointed out that in limiting apportionment to negligence cases, the Florida legislature expressly excluded actions “based upon an intentional tort.” Pennsylvania's statute does the same thing! The drafters did not say including an intentional tort; or alleging an intentional tort; or against parties charged with an intentional tort. The words chosen, “based upon an intentional tort,” imply to us the necessity to inquire whether the entire action against or involving multiple parties is founded or constructed on an intentional tort. In other words, the issue is whether an action comprehending one or more negligent torts actually has at its core an intentional tort by someone.

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