Cramer v. Starr (7/18/16)

The Supreme Court discusses the interplay of several liability and the Original Tortfeasor Rule.

The defendant in a car-accident case named as a non-party at fault a surgeon who had performed on plaintiff, purporting to treat her injuries, an allegedly unnecessary and harmful surgery. Plaintiff moved to strike the notice, traditional law – which the court grandly calls the Original Tortfeasor Rule – being that a defendant is liable for malpractice in the treatment of the injuries he caused. The trial court granted the motion. Defendant took a special action; the Court of Appeals denied it but the Supreme Court accepted it.

The Supreme Court reverses. The court gives as lengthy explanation of how UCATA works and then basically says that it means what it says: the jury allocates fault among everyone who contributed to the injury. Restatement (Second) 457 – tortfeasor is liable for negligence of those rendering aid to his victim – is rejected to the extent it contradicts UCATA. The court agrees with Plaintiff that the traditional rule is one of causation – it makes the tortfeasor the proximate cause of the malpractice – but causation is among the factors considered by the jury in allocating fault.

The court then largely undoes this in discussing Restatement (Third) 35, the new version of 457. The court, like the Restatement, argues that it “can be read in conjunction with” several liability. The court adopts the section “but only to the extent it does not conflict with UCATA”; the court does not clarify the extent to which the two cannot, after all, be read “in conjunction with” each other. But the bottom line is that although the jury must consider the fault of the malpracticing non-party the plaintiff may still argue, under the traditional rule, that the defendant should nevertheless be liable for damage caused by the malpractice. The court says that in this way the rule “can serve a useful purpose” although it does not specify what that purpose is. We can think of several purposes for allowing plaintiffs, despite UCATA, to collect damages for the negligence of people they did not think to, did not wish to, or could no longer sue. The court does not discuss whether any are consistent with legislative intent. Whether they are “useful” is an exercise we will leave for the reader.

(Opinion: Cramer v. Starr)