Phennah v. Whalen
621 P.2d 1304, 28 Wash. App. 19, 1980 Wash. App. LEXIS 2479 (1980)
Rule of Law:
When a plaintiff has proven that each successive negligent defendant caused some damage, and the resulting harm is indivisible, the burden shifts to the defendants to prove allocation of damages among themselves; otherwise, they are jointly and severally liable for the entire harm.
Facts:
- Dorothy E. Phennah, a woman in her mid-sixties with a preexisting osteoarthritic condition, had been receiving treatment from Dr. Scott Wisner for 14 years.
- On January 14, 1976, Phennah was a passenger in a Metro bus driven by defendant Lorenzo when it was struck from the rear by a Volkswagen driven by defendant Whalen.
- Dr. Wisner concluded that Phennah's new symptoms of neck and upper back pain, and an aggravation of her preexisting condition, were caused by the January 14 accident.
- On April 8, 1976, Phennah was driving when her vehicle was struck in an intersection by a vehicle driven by defendant McHugh.
- After the second accident, Dr. Wisner found Phennah's symptoms to be worse, with a restriction of movement and muscle spasms, and testified that her condition was permanent.
- Dr. Wisner further testified that while neither accident caused Phennah's arthritic condition, each affected the severity and permanence of her disability, and it was impossible to state which accident caused what degree of injury and permanence.
- Testimony from other medical experts and Phennah herself indicated she sustained injuries from each accident, but provided no basis for segregating damages among the causes.
- Phennah claimed Lorenzo and Whalen were negligent in the first accident, and McHugh was negligent in the second accident.
Procedural Posture:
- Haydn P. Phennah and Dorothy E. Phennah (plaintiffs) sued Lorenzo, Whalen, and McHugh (defendants) in a state trial court.
- At trial, after the close of the defendants' case, all defendants moved to dismiss the action for insufficiency of the plaintiffs' evidence.
- The trial court granted the defendants' motion to dismiss, relying on Smith v. Rodene which required plaintiffs to segregate damages among successive tort-feasors.
- The plaintiffs appealed the trial court's dismissal to the Court of Appeals of Washington.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Are defendants entitled to a dismissal when a plaintiff fails to provide an evidentiary basis for segregating damages among successive tort-feasors, even if the harm is indivisible?
Opinions:
Majority - Ringold, J.
No, defendants are not entitled to a dismissal when a plaintiff fails to proffer an evidentiary basis for segregating damages among successive tort-feasors if the harm is indivisible. The court first clarified that while the defendants were successive tort-feasors due to independent accidents, the core issue was the burden of proof for an indivisible harm. Reviewing Washington precedent, the court identified a trend towards placing the burden of apportionment on defendants in cases where it is impossible to segregate damages. Adopting the Restatement (Second) of Torts approach (specifically Section 433B(2)), the court held that once a plaintiff proves each successive negligent defendant caused some damage, the burden shifts to the defendants to prove allocation of damages among themselves. If the harm remains indivisible, the defendants become jointly and severally liable for the entire harm, reflecting the policy that hardship from lack of evidence should fall on the proven tortfeasor rather than the innocent plaintiff.
Analysis:
This case significantly altered the burden of proof in Washington for injuries caused by successive tort-feasors when the resulting harm is indivisible. It moves away from a strict 'plaintiff must segregate' rule, aligning Washington with the Restatement (Second) of Torts and a more plaintiff-friendly approach. This ruling provides a critical mechanism for plaintiffs to recover full damages in complex injury scenarios where medical science cannot precisely delineate harm among multiple negligent acts. Future cases involving multiple accidents or sequential medical malpractice will likely apply this shifted burden, compelling defendants to either demonstrate divisibility or face joint and several liability.
