On March 1, 2012, in Cafe Moda v. Palma, 128 Nev. Adv. Op No. 7 (March 1, 2012), _ Nev. _, _ (2012), _ P.3d _,_ (2012), the Nevada Supreme Court held that a negligent defendant in a tort action is only severally liable for a plaintiff’s damages, even when other defendants committed intentional torts.
More applicable to the majority of cases in litigation, the Court impliedly held that defendants in negligence actions are only severally liable so long as the defense of comparative fault is raised— regardless of whether a jury ultimately finds there to be comparative fault on the part of the Plaintiff. While the decision is not particularly groundbreaking, the Court’s statutory construction, including replacement of statutory text with its own, is noteworthy.
The factual background of the case is that the Plaintiff (Palma) was stabbed (intentional tort) by Defendant (Richards) while in the premises of Defendant Restaurant (Cafe Moda), which was allegedly negligent in allowing the incident to occur.
The jury found the Plaintiff to be 0% negligent (comparative fault); Richards to be 80% at fault, and Palma to be 20% at fault. The district court held both defendants to be jointly and severally liable (i.e., each were responsible for 100% of the judgment).
In reversing the lower court, the Nevada Supreme Court looked to NRS 41.141 (Nevada’s Comparative Fault / Liability among Tortfeasors statute). The statute provides in part:
[¶ 1]. When comparative fault is raised as a defense, a Plaintiff’s claim is not barred if he or she is partially (comparatively) at fault for the accident, so long as his or her fault is not greater than the combined fault of the Defendants. (doing away with contributory negligence).
[¶ 4]. In such cases (i.e., comparative fault is raised as a defense) the defendants are severally liable for only their portion of the verdict — that is they are only responsible for the amount of the verdict the jury attributes to their negligence.
[¶ 5] Defendants are jointly and severally liable for damages caused by intentional torts.
To reach this result, the Nevada Court replaced the word “negligence” in paragraph 4 of the statue with “fault.” Thus, instead of apportioning just negligence, all fault (including intentional torts, strict liability, breach of contract) is apportioned among the defendants, and those who are only “negligent” are only severally liable — that is, responsible for only their portion of the judgment. Those who committed intentional torts, on the other hand, remain liable for 100% of the judgment.
More significant (or at least more applicable to the majority of cases in the court system) the Court impliedly held that defendants are only severally liable so long as comparative fault is “asserted” as a defense, even if a jury ultimately finds there to be no comparative fault.
Jay Kenyon is a principal of the law firm of Yan Kenyon. His practice is 100% devoted to personal injury law.
