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June 15th, 2021
An interpretation of Spencer v. Johnson, No. 2021 WL 1035175 (Pa. Super. Ct. Mar. 18, 2021) suggests Pennsylvania’s Fair Share Act does not apply unless there is a finding that the plaintiff was comparatively negligent. By way of brief background, prior to the Fair Share Act the law was when two or more parties were jointly and severally liable for a tortious act, each party was independently liable for the full extent of the injuries stemming from the tortious act no matter their proportion of liability. Thus, any defendant could be responsible for satisfying the entire judgment. However, the Fair Share Act limited the application of joint and several liability to the extent that individual defendants are generally only responsible for their proportionate share of a judgment, excepting a tortfeasor who is found to be 60 percent or more liable. Under that scenario, the tortfeasor could be held responsible for satisfying the entire verdict.
In 2014, Keith Spencer suffered permanent, debilitating injuries after he was struck by a vehicle driven by Cleveland Johnson (“Cleveland”) as he was lawfully crossing the street. The vehicle was owned by the Philadelphia Joint Board Workers United, SEIU (“PJB”), who loaned the car to its employee, Tina Johnson (“Tina”), Cleveland’s wife. In 2016, Spencer sued Cleveland, Tina and PJB. The disputed issues were: (1) whether Tina was negligent in allowing Cleveland to operate her work vehicle, and (2) whether PJB was negligent under the laws of agency and vicarious liability for the vehicle it provided to Tina. Evidence showed that Tina had a history of allowing Cleveland to use PJB’s vehicle for personal use. Cleveland was intoxicated at the time of the incident. Moreover, evidence showed that PJB did little, if anything, to ensure that its vehicle was only being used by Tina for business purposes. Ultimately, a jury returned a verdict in favor of Spencer against all Defendants in the amount of approximately $13 million. Liability was apportioned as follows: PJB (45%), Cleveland (36%), and Tina (19%).
Spencer argued that PJB should be responsible for the entire verdict because the combined liability of PJB and its employee was greater than 60%, the threshold for joint and several liability under Pennsylvania’s Fair Share Act. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii) (“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 … [w]here the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.”). The trial court denied Spencer’s request, and this appeal to the Pennsylvania Superior Court followed.
First, the Superior Court concluded there was sufficient evidence to support a finding that Tina’s acts were committed during the course of and within the scope of her employment, primarily because she was “on call” for her job “24/7.” (There were no special jury interrogatories concerning whether Tina was acting within the course and scope of her employment when the incident occurred.) Accordingly, the Superior Court determined that the trial court erred in failing to grant Spencer’s motion to mold the verdict pursuant to the Fair Share Act, as the jury’s general verdict warranted a finding that PJB was vicariously liable for Tina’s negligence and therefore, the theory of joint and several liability applied.
Moreover, the Superior Court determined that even if there was no evidence to support a finding of vicarious liability, the Fair Share Act would have nonetheless applied. After pouring through the extensive history of Pennsylvania’s laws on joint and several liability and the legislative history of the Fair Share Act, the Court explained the “general rule” of the Fair Share Act is focused on cases where a plaintiff is found to have negligently contributed to her own injuries. The addition of subsection (a.1), i.e., “Recovery against joint defendant; contribution,” does not clearly or explicitly expand the scope of the Fair Share to include cases where the plaintiff has not been found to be contributorily negligent. Therefore, for the Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.
