Virginia Brain Injury: Joint and Several Liability – a Lawyer’s Restatement
The Defendant Assistant Principal opposed the imposition of joint and several liability against him at post-trial motions hearing in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. But in so doing, Defendant Burns misstated the applicable negligence law.
He cited Finley, Inc. v. Waddell, 207 Va. 602 (1996) and Panther Coal Co. v. Looney, 185 Va. 758 (1946) ostensibly for the proposition that all tortfeasors acting independently versus in concert only are liable separately for brain injury. But Defendant Burns failed to disclose in Gagnon that Finley and Panther are “nuisance,” not “negligence,” cases.
Finley actually distinguishes between “nuisance” and “negligence”. “The torts of nuisance and negligence are distinct and differ in their nature and consequences. And the rules which have been formulated by the courts for determining joint liability for nuisance are not the same as those applicable to negligence. Joint liability for negligence may be imposed even though there is no concert of action between the joint tortfeasors and even though it is impossible to determine in what proportions each contributed to the injury. But in nuisance cases, joint liability depends upon whether there is concert of action between the joint contributors, unless the independent act of the one sought to be held is sufficient to cause the whole loss.” 207 Va. at 610-611.
Panther too delineates the same special “nuisance,” not “negligence,” formulation. 185 Va. at 770. To the same effect is Pillis v. Nash, 2 Va. Cir. 377, 380-381 (Jul. 16, 1973 Richmond)(quoting Finley).
Conversely, Gagnon is a “negligence” case of brain injury. Hence Defendant Burns’ citation of “nuisance” law is irrelevant and misleading.
Sullivan v. Robertson Drug Co., Inc., 273 Va. 84 (2007), a contribution action, reaffirms the application of joint and several liability in “negligence” cases like Gagnon. “If separate and independent acts of negligence of two parties directly cause a single indivisible injury to a third person, either or both wrongdoers are responsible for the whole injury. Thus, in determining the liability of a person whose concurrent negligence results in such an injury, comparative degrees of negligence shall not be considered and both wrongdoers are equally liable irrespective whether one may have contributed in greater degree to the injury.” Id. at 92.
Moreover, Sullivan concluded that inviting the jury to apportion damages between Defendants is erroneous. “We also conclude that the circuit court erred in giving Instruction O. This instruction was erroneous because it directed the jury to apportion damages based on the joint tortfeasors’ relative degrees of negligence. By improperly directing the jury to compare the negligence of the wrongdoers, Instruction O violated the established principle that comparative degrees of negligence are not to be considered in determining the liability of persons whose concurrent negligence results in an injury. Id. at 93.
