California Supreme Court Rules Intentional Tortfeasors Cannot Reduce Their Share of Noneconomic Damages under Proposition 51
In B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, the California Supreme Court unanimously ruled that intentional tortfeasors cannot use Civil Code Section 1431.2 to reduce their share of noneconomic damages. Civil Code Section 1431.2, commonly known as Proposition 51, makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault.
On the evening of August 3, 2012, the Los Angeles County Sheriff’s Department responded to a report of an ongoing assault in Compton, California. Upon arrival, officers observed Darren Burley (“Burley”) in a fight with another woman. While attempting to subdue Burley, Defendant David Aviles (“Aviles”) pressed one knee into the center of Burley’s back and another onto the back of his head until Burley was restrained. Other officers took over for Aviles, who continued to hold Burley. When paramedics arrived they found Burley restrained and face down on the pavement, with a deputy pressing a knee into the small of his back. Burley had no pulse. He was treated for his injuries, but died 10 days later.
Burley’s heirs sued the County of Los Angeles and several deputies, including Deputy Aviles, for battery, negligence, and wrongful death. A jury found that Aviles had committed battery by using unreasonable force. The jury allocated 20% of the responsibility for Burley’s death to Aviles, 40% to the remaining deputies, and 40% to Burley himself. Despite this allocation, the trial court entered a judgment against Aviles for $8 million, the full amount of the noneconomic damages, on the grounds that his liability was based on the intentional tort of battery.
The Court of Appeal reversed the judgment, holding that Section 1431.2 limits the liability for noneconomic damage of all defendants, including intentional tortfeasors, to their proportionate share of fault. The appellate court expressly disagreed with Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1108, which held that “an intentional tortfeasor is [not] entitled to a reduction or apportionment of noneconomic damages under Proposition 51.” The Supreme Court granted review to address this split of authority and to consider Section 1431.2’s application to intentional tortfeasors.
Section 1431.2 became part of the Civil Code in June 1986, through the adoption of Proposition 51, an initiative measure entitled the Fair Responsibility Act of 1986. In pertinent part, Section 1431.2, subdivision (a), provides:
In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.
Plaintiffs argued that the key phrase to determine the statute’s applicability to intentional tortfeasors was the phrase “based on principles of comparative fault.” They argued while negligence is based on this principle, intentional tort liability is not. Defendants argued that the key language is the phrase “the liability of each defendant” which by the plain and clear unambiguous meaning of this phrase guarantees apportionment to every defendant in a wrongful death case regardless of the nature of the defendant’s wrongdoing. Defendants asserted this language provides instruction on how the percentage of fault should be calculated, i.e., according to the proportion of fault determined by the fact-finder.
The Supreme Court considered whether existing principles of comparative fault applied under the law to intentional tortfeasors. After reviewing numerous court decisions before Proposition 51’s adoption, the Court concluded that these decisions “uniformly held that reduced liability under principles of comparative fault [was] not available to defendants liable for intentional torts.” As such, by June 1986, when the electorate adopted Proposition 51, the well-established law was that intentional tortfeasors may not reduce their liability based on the negligent acts of others under principles of comparative fault. Moreover, after Proposition 51’s passage, published appellate decision similarly held that intentional tortfeasors may not obtain reduction of their liability under principles of comparative fault. The Supreme Court concluded, “[t]he preceding discussion demonstrates that California principles of comparative fault never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others.” Because Proposition 51 incorporates those “principles of comparative fault,” the Supreme Court held that Aviles was not entitled to reduce his liability based on the acts of Burley or the other defendants.
Defendants who are sued under theories of intentional tort or defendants who may be vicariously liable for intentional torts should evaluate their noneconomic damages exposure early because they will not be able to seek a reduction under Proposition 51 if they are found liable for an intentional tort. However, it remains unclear how this decision affects negligent tortfeasors who are co-defendants with an intentional tortfeasor. The California Supreme Court, in footnote four, explicitly declined to express an opinion as to whether a negligent tortfeasor could obtain a reduction in their liability for noneconomic damages based on the extent to which an intentional tortfeasor contributed to the injured party’s injuries.
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