Zeller v. Cantu
Zeller v. Cantu
Opinion of the Court
In this case we are asked to decide whether contribution among joint tortfeasors is to be apportioned on a pro rata basis, pursuant to G. L. c. 23IB, § 2 (1984 ed.), or whether codefendants’ liability should be apportioned on the basis of their relative degrees of fault. Dr. Robert C. Cantu is appealing an order of the Superior Court directing him to pay to the American Safety Razor Corporation (ASRC) a pro rata contribution of fifty per cent of the judgment entered for the plaintiff, Donna L. Zeller. He argues that his share of the damages awarded to Zeller should be based upon his degree of fault in causing her injury. We disagree.
Both Cantu, the operating surgeon, and ASRC, the manufacturer of the blades used, were defendants in an action brought by Zeller for injuries she suffered when surgical blades broke and became permanently lodged in her back during the course of surgery. The judgment for Zeller, which was affirmed by the Appeals Court, was in the amount of $1,287,466.
Cantu claims that the judge erred in failing to determine his contribution on the basis of his share of responsibility for the plaintiff’s injuries. He contends that: (1) the enactment of the Commonwealth’s comparative negligence act, G. L. c. 231, § 85 (1984 ed.), modified G. L. c. 23IB so as to require consideration of comparative fault in assessing contribution among joint tortfeasors; (2) by making “principles of equity
1. Implied Repeal.
Under the common law, there was no right to contribution among joint tortfeasors. George W. Gale Lumber Co. v. Bush, 227 Mass. 203, 205 (1917). In 1962, the Legislature enacted, by St. 1962, c. 730, § 1, the Uniform Contribution Among Tortfeasors Act which states in relevant part: “In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degrees of fault shall not be considered; (b) if equity requires, the collective liability of some as a group shall constitute a single share; and (c) principles of equity applicable to contribution generally shall apply.” G. L. c. 23IB, § 2. In their comment to § 2 of the Uniform Act, which is identical to G. L. c. 23IB, § 2, the Commissioners on Uniform State Laws state that, “[tjhis section in positive terms resolves several difficult questions of policy. First, it recognizes and registers the lack of need for a comparative negligence or degree of fault rule in contribution cases.” Commissioners’ Comment, Uniform Contribution Among Tortfeasors Act, § 2,12 U.L.A. (Master ed. 1975).
Cantu concedes that G. L. c. 23IB, § 2, “appears to require a Court to assess contribution between codefendants without even considering the degree of responsibility of each such joint tortfeasor.” However, he argues that the Legislature’s later enactment of G. L. c. 231, § 85,
Opinions that have examined the relationship between the two acts have found no inconsistency in their provisions. In Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 350 (1983), we explained: “Taken together, these statutes [G. L. c. 231, § 85, and G. L. c. 23IB] make clear ‘that the negligence of a plaintiff is to be compared with the total negligence of all the defendants, all of whom are liable to the plaintiff, with contribution among the joint tortfeasors on a pro rata basis,’ ” quoting Grad v. Damon, 6 Mass. App. Ct. at 170. In Grad, supra at 169, the Appeals Court noted that in adopting G. L. c. 231, § 85, “it is clear that the Massachusetts Legislature
To support his argument for implied repeal, Cantu cites the cases of Bartels v. Williston, 276 N.W.2d 113 (N.D. 1979) and Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152 (1982). Both are easily distinguishable. In Bartels, supra at 121, the court held that § 2 of North Dakota’s Uniform Contribution Among Tortfeasors Act had been impliedly repealed by the State’s comparative negligence act because the latter specifically provided that when “two or more persons ... are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each.” Id. at 118. General Laws c. 231, § 85, contains no analogous provisions mandating contribution by comparative fault which would conflict with the pro rata provisions of G. L. c. 23IB. In Bartlett, supra at 158-159, the court, having already adopted the doctrine of pure comparative negligence, held that contribution was also to be determined according to principles of comparative fault. There, however, the court was not confronted with a contribution statute which, like G. L. c. 23IB, § 2, expressly prohibited any consideration of fault in determining pro rata shares. Id. at 158. In those jurisdictions which have enacted § 2 of the Uniform Contribution Among Tortfeasors Act, courts have been unwilling to presume, solely on the basis of the subsequent adoption of comparative negligence, an intent to repeal the Uniform Act’s pro rata method of allocating liability. See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430-433 (Alaska 1979) (judicial adoption of comparative
Thus neither the language of G. L. c. 231, § 85, its interpretation by our courts, nor the decisions of other jurisdictions regarding the impact of comparative negligence on § 2 of the Uniform Contribution Among Tortfeasors Act support Cantu’s argument for implied repeal. We are sympathetic to the proposition that, where joint tortfeasors bear different degrees of responsibility for a plaintiff’s injuries, it is more equitable to apportion their liability on the basis of comparative fault. However, it is the Legislature’s prerogative to make such a change in our law, not ours. We therefore agree with the judge below that G. L. c. 23IB, § 2, bars any consideration of the relative fault of a codefendant in assessing his or her pro rata share of the damages.
2. Equitable Principles.
Cantu also argues that fault-based contribution is implicitly sanctioned by G. L. c. 23IB, § 2 (c), which states that in determining the pro rata shares of joint tortfeasors “principles of equity applicable to contribution generally shall apply.” He contends that § 2 (c) modifies §2 (a) — which prohibits consideration of the relative fault of tortfeasors — and that, construed in its entirety, G. L. c. 23IB, § 2, allows for apportionment by comparative fault where a simple pro rata decision is inequitable.
We agree with Cantu that “allegedly conflicting provisions of a statute should, if possible, be construed in a way that is harmonious and consistent with the legislative design.” Peters
Cantu claims that “numerous jurisdictions” apply equitable principles to require apportionment of damages by relative liability despite “the presence of a contribution statute substantively identical to Chapter 23 IB.” However, without exception, the jurisdictions he relies upon either: (1) have not enacted the Uniform Contribution Among Tortfeasors Act; see Packard v. Whitten, 274 A.2d 169, 179 (Me. 1971) (judicially created contribution rule); Bielski v. Schulze, 16 Wis. 2d 1 (1962) (same); (2) have enacted a version of that act which does not prohibit and, in some cases, expressly provides for consideration of fault in determining pro rata shares; see American Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578 (1978) (contribu
We acknowledge that strong policy arguments support the apportionment of damages between joint tortfeasors on the basis of their relative degrees of fault. As the court stated in Bielski, supra at 9, “If the doctrine is to do equity, there is no reason in logic or in natural justice why the shares of common liability of joint tortfeasors should not be translated into the percentage of the causal negligence which contributed to the injury.” See Smith, 54 Mass. L. Q., supra at 148 (“The adoption of the Comparative Negligence Statute should eventually cause reconsideration of the pro rata concept in the contribution statute”). However, we are precluded from “making any decision ... in the name of equity which would undercut the legislative scheme.” Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 349 (1983). We therefore do not read § 2 (c) of G. L. c. 23IB as sanctioning the apportionment of liability on the basis of comparative fault.
3. Due Process and Equal Protection.
Finally, Cantu argues that, if G. L. c. 23IB requires pro rata contribution among joint tortfeasors without consideration of their relative fault, the statute violates the due process and equal protection provisions of the Constitutions of Massachusetts and the United States. As applied to the facts presented here, there is no difference of substance between our standard of review under the Massachusetts Declaration of
For the purpose of this appeal, we will assume, without deciding, that Cantu has raised a valid due process claim.
. . . [T]he reform may take one step at a time.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-489 (1955). See Zayre Corp. v. Attorney Gen., 372 Mass. 423, 443 (1977).
The foregoing due process principles are “likewise applicable where a legislative classification is attacked as a violation of equal protection: if the legislative difference in treatment is
In reviewing the constitutionality of statutes subject to a rational basis test, we adhere to principles of judicial restraint based upon our “recognition of the inability and undesirability of the judiciary substituting its notion of correct policy for that of a popularly elected Legislature.” Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). To overcome this standard of deference to legislative judgment, Cantu bore the burden of proving “the absence of any conceivable grounds which would support” G. L. c. 23IB. Franklin Fruit, supra at 235. He failed to meet this burden. Instead, as in his argument for implied repeal, he relied upon the availability of a more
So ordered.
The computation encompasses a remittitur, and interest as of the date of judgment after rescript.
The figure represents one half of the amount paid by ASRC, which includes interest to date of payment, minus the $100,000 earlier payment by Cantu to Zeller.
General Laws c. 231, § 85, states in relevant part: “Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage
In 1976 the Florida Legislature amended the State’s contribution act to provide that in determining the pro rata shares of tortfeasors “[tjheir relative degrees of fault shall be the basis for allocation of liability.” Fla. Stat. Ann. § 768.31 (Supp. 1985).
Cantu also erroneously cites Great West Casualty Co. v. Fletcher, 56 N.C. App. 247 (1982), which held that, under Tennessee’s controlling Uniform Contribution Act, comparative fault shall not be considered in determining a pro rata division of damages.
To state a valid due process claim Cantu must show that G. L. c. 23IB deprives him of an interest “encompassed in the Fourteenth Amendment’s protection of liberty and property.” McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 785 (1975). Although the parties fail to address this issue, it is questionable whether a tortfeasor has a constitutional right to any form of contribution, let alone contribution determined by his relative fault. See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 441 n.1 (Alaska 1979).
“Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty, unless we are to be so ingenious as to say that the plaintiff is under an obligation to protect the defendant against liability for the consequences of the plaintiff’s own negligence.” W. Prosser & W. Keeton, Torts § 65, at 453 (5th ed. 1984).
Reference
- Full Case Name
- Donna L. Zeller v. Robert C. Cantu & another
- Cited By
- 1 case
- Status
- Published