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Fugere v. Pierce

The Court of Appeals of Washington, Division Two
490 P.2d 132, 5 Wash. App. 592 (1971)
ELI5:

Rule of Law:

When the independent tortious acts of two or more actors combine to cause a single, indivisible harm to a plaintiff, the burden of proof shifts to each defendant to prove that the harm is capable of apportionment; if a defendant cannot meet this burden, they are jointly and severally liable for the entire harm.


Facts:

  • On November 7, 1968, the plaintiff was driving at night in heavy rain on a highway.
  • An oncoming car driven by a third party, Lopez, lost control and struck the plaintiff's left front fender.
  • Approximately one to three seconds later, the defendant, Pierce, who had been following the plaintiff's vehicle, struck the plaintiff's car on the left side near the front door.
  • The plaintiff testified that the second impact was more severe and that it threw her forward into the steering wheel.
  • As a result of the collisions, the plaintiff sustained multiple injuries, including a severe six-inch laceration to her liver.
  • The plaintiff's physician testified that the liver injury was caused by a severe blow to the abdomen but could not definitively determine which of the two impacts caused it.

Procedural Posture:

  • The plaintiff filed a personal injury action against the defendant, Oscar E. Pierce, Jr., in the trial court.
  • The jury returned a verdict in favor of the plaintiff, awarding her $2,500 in damages.
  • The plaintiff moved for a new trial on the issue of damages, which the trial court denied.
  • The plaintiff, as appellant, appealed the judgment and the order denying her motion for a new trial to the intermediate court of appeals.

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Issue:

Does the burden of proof for apportioning damages shift to the defendants when the independent tortious conduct of two or more actors combines to cause a single, indivisible harm to the plaintiff?


Opinions:

Majority - Armstrong, J.

Yes. When the tortious conduct of two or more actors combines to bring about a single indivisible harm to the plaintiff, the burden of proof for apportioning the harm rests upon each actor seeking to limit their liability. The court adopts the 'single indivisible injury rule' and the framework of Restatement (Second) of Torts § 433B(2), finding it unfair to place an impossible burden of proof on an innocent plaintiff to segregate damages when it is certain the defendants collectively caused the entire harm. Because injuries like the severe liver laceration in this case are by their nature incapable of logical apportionment between two successive impacts, and the defendant failed to present substantial evidence proving the damages could be apportioned, the defendant is jointly and severally liable for all of plaintiff's injuries. The trial court therefore erred by instructing the jury that the plaintiff had the burden to prove which party caused which injuries.



Analysis:

This decision formally aligns Washington state law with the modern majority rule regarding indivisible injuries caused by multiple independent tortfeasors. By shifting the burden of apportionment to the defendants, the court makes it significantly easier for innocent plaintiffs in successive-impact cases to obtain a full recovery. This precedent prevents defendants from escaping liability by merely pointing to another tortfeasor and claiming the plaintiff failed to prove causation for specific injuries. The ruling forces defendants who wish to limit their liability to affirmatively produce evidence sufficient to allow a jury to apportion damages with reasonable certainty.

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