This article originally appeared in the 2016 September/October issue of Ohio Lawyer. It is republished here with permission.
Applying Ohio’s tort reform legislation to a situation where a non-party is immune from the tort liability in issue has resulted in contradictory holdings.
Ohio’s tort reform legislation modified the rules governing joint and several liability among tortfeasors. It also set forth the protocol by which a tortfeasor may reduce its exposure by having the fact finder allocate responsibility between parties and non-parties. The application of these rules to a situation where a non-party is immune from the tort liability in issue has resulted in contradictory holdings. This article attempts to clarify this issue by discussing the methodology of apportionment as between parties and non-parties and exploring the potential impact on such rights when a defendant seeks the apportionment of tortious conduct from a non-party who would otherwise be immune. While courts are split on the issue, we believe that the more persuasive position is to permit apportionment to immune non-parties, even though those parties may never be liable.
R.C. 2307.22 governs the means of determining joint and several liability between persons who caused the same injury. Under this provision, a defendant who is determined to be more than 50% responsible for a plaintiff’s injury is jointly and severally liable in tort for all compensatory damages that represent economic loss. A defendant deemed to be less than 50% responsible for the plaintiff’s injury will only be liable for his or her proportionate share of the compensatory damages that represent economic loss. If a defendant is liable for an intentional tort, that defendant is jointly and severally liable in tort for all compensatory damages that represent economic loss, even if they are determined to be less than a 50% cause of the plaintiff’s injury. Finally, in a situation where one defendant is determined to be an intentional tortfeasor, any non-intentional tortfeasor defendant who is found to be a 50% or less cause of the plaintiff’s injuries is responsible only for their proportionate share of compensatory damages that represent economic loss. The calculation of an individual’s proportionate share is straightforward—the court multiplies the total economic damages by the percentage of tortious conduct allocated to the non-intentional tort defendant.
R.C. 2307.22 also provides that there is no joint and several liability for a non-economic loss. With respect to damages for pain, suffering and mental anguish, each defendant is responsible only for their proportionate share of such damages.
R.C. 2307.23 establishes the protocol by which the fact finder determines the percentage of liability attributable to each party and non-party claimed to be responsible for the plaintiff’s injuries. The statute mandates that when properly requested, the court in the non-jury action or the jury in a jury action “shall” return a general verdict form accompanied by answers to interrogatories to specify all of the following:
The percentage of tortious conduct that proximately caused the injury or loss to person or property or the wrongful death of the plaintiff to each party to the tort action for whom the plaintiff seeks recovery;
The percentage of tortious conduct that proximately caused the injury or loss to personal property or the wrongful death of the plaintiff to each person from whom the plaintiff does not seek recovery.
The allocation protocol set forth in R.C. 2307.23(C) is designated an affirmative defense, though the statute provides that “any party to the tort action from whom the plaintiff seeks recovery in this action may raise an affirmative defense under this division at any time before the trial of the action.” Courts dispute whether a party can assert an allocation claim under R.C. 2307.23 when the party fails to raise the defense in its answer. Most courts give deference to the language in the statute providing that the allocation request can be raised “at any time before the trial of the action.” One federal court, however, holds that the reference in the statute allowing the raising of the allocation defense “at any time before trial” is procedural and, as a consequence, the requirements of the Federal Rules of Civil Procedure govern. Under this interpretation, the request for allocation under R.C. 2307.23 was deemed an affirmative defense subject to the pleading requirements in Fed. R. 8.
R.C. 2307.27 makes it clear that a plaintiff’s recovery against one tortfeasor does not discharge the liability of the other tortfeasor unless the entire judgment is satisfied. Subsection B of this provision provides that valid answers to jury interrogatories apportioning the percentage of liability of several defendants as set forth in R.C. 2307.23 shall be binding “as among those defendants in determining their right of contribution.”
This leads us now to consider whether a jury’s obligation to apportion a non-party’s “percentage of tortious conduct” under tort reform applies to a non-party defendant that would have immunity from the tort “liability” in issue. Ohio state courts are split on this issue. In Romig v. Baker Hi-Way Express, a 2-1 decision, the Fifth District Court of Appeals concluded that apportionment would not apply where the non-party was immune under Ohio’s workers’ compensation framework. This court initially noted that the apportionment protocol did not include an exception for employers immune from work-related claims. Nevertheless, the court went on to find that any consideration of an employer’s proportionate share of liability in the context of an R.C. 2307.23 apportionment analysis would be inconsistent with the statutory and constitutional immunities afforded complying employers under Ohio’s workers’ compensation system. In rejecting the defendant’s request to have the jury apportion fault to an employer who had workers’ compensation immunity, the majority panel reasoned: “[A]s there is no such thing as employer negligence, a tortfeasor cannot raise the affirmative defense of the empty chair as to an employer for negligent acts.” The panel concluded: “[W]e find to include the employer’s negligence in the allocation of fault is completely inconsistent with the workers’ compensation system as structured by the constitution and legislature and as construed by the courts.”
In dissent, Judge Edwards distinguished apportionment of fault from the imposition of liability, reasoning:
R.C. 2703.23 contains no exceptions for an employer or any other potential non-party who enjoys immunity from liability. I would find that despite the fact that Baker is immune from liability for negligence pursuant to the Workers’ Compensation Act, the jury still could assign a portion of the tortious conduct to Baker pursuant to the empty chair doctrine. The ruling of the majority does not ensure that no defendant pays more than his or her fair share of the plaintiff’s damages; in fact, this decision forces Worthington to pay its own share plus Baker’s share by not allowing Washington to present any evidence of Baker’s tortious conduct that contributed to the plaintiff’s injuries.
Judge Edwards’ dissent has since been embraced in a number of decisions, resulting in an apparent jurisdictional split. In Fisher v. Beazer East, Inc., the Eighth District Court of Appeals, without even referencing the prior Romig holding, held that a defendant could seek to have a jury apportion fault to a non-party employer under R.C. 2307.23—even though the non-party employer would otherwise be immune from an underlying claim. The court reasoned that R.C. 2307.23 did not exclude any party who may be entitled to immunity. The court further noted that pursuant to the express language of R.C. 2307.11(G), the phrase “[p]ersons from whom the plaintiff does not seek recovery in this action,” includes “[p]ersons who are not a party to the tort action whether or not that party was or could have been made a party.” Recognizing that the statutory definition includes persons “whether or not that person could have been a party to the tort action,” the Fisher court concluded that the statute requires a jury to consider the fault attributable to each person who caused the injury, regardless of whether the plaintiff could seek recovery from that person.1
The Eighth District’s analysis has been recognized and applied by a number of trial courts. In Farley v. Complete Gen. Constr. Co., the trial court addressed whether a litigating defendant could seek to have the jury apportion a percentage of tortious conduct to an immune, non-party employer. After noting the contrast between the Fifth District’s decision in Romig and the Eighth District’s decision in Fisher, the Farley court disregarded the Romig decision, finding that it undermined the purpose of R.C. 2307.23 to ensure that a defendant should only have to pay its proportionate share of liability. The court further noted that the Romig majority panel failed to properly consider the statutory definition of a “person from whom the plaintiff does not seek recovery” under R.C. 2307.01(G) and its impact on the scope of permissible apportionment relative to non-parties under R.C. 2307.23.
More recently, in Wise v. Mary Moppet Early Learning Ctr., the trial court considered whether a litigating defendant could seek to have the jury apportion the percentage of tortious conduct as against a non-party parent who would have parental immunity from the underlying claim in litigation. After citing approvingly to the Eighth District Court of Appeals decision in Fisher, the Wise court held:
As the Fisher court noted, the legislator could have specifically exempted employer negligence from the apportionment statute. They did not. The same is true for parental negligence. R.C. 2307.23 entitles defendant to present evidence in support of the apportionment of fault to other not named as defendants in this litigation.
The Wise court also cited approvingly to an earlier Franklin County trial court decision in Webb v. Fire-Safety Sys. Like the Fisher case, Webb involved a workers’ compensation fact pattern. The Webb plaintiff sought to recover for a workplace injury, but did not seek to recover from his coworkers or employer due to the existence of immunity for such parties. As the trial date drew near, the plaintiff filed a motion in limine seeking to preclude evidence of negligence on the part of his employer. The trial court denied the motion and allowed the issue of apportionment to go forward. The court rejected the argument that the employer’s conduct cannot be “tortious” because it was immune from finding that “the statutes specifically require the jury to apportion responsibility for the conduct that gives rise to the plaintiff’s claims to all parties to the conduct, whether or not plaintiff seeks a recovery from them.” The court also cited R.C. 2307.23(C) for the proposition that any party to a tort action may raise the “empty chair” defense at any time prior to trial.
The conclusions set forth by courts in Fisher and Wise and the dissenting opinion in Romig find support for reasons beyond those specifically discussed in those cases. In this regard, the immunity bestowed upon a complying employer in R.C. 4123.74 or Art. III, Sec. 35 of the Ohio Constitution provides that the complying employer “shall not be liable to respond to damages at common law or statute.” Simply stated, these immunity provisions speak in terms of shielding the employer from “liability.” However, there is no question that any apportionment established by the fact finder as to a non-party under R.C. 2307.23(A)(2) would not result in the imposition of “liability” against such non-party. This conclusion finds support in the language of R.C. 2307.27, which governs “the binding effect of answers to interrogatories by jury or findings of fact by court.” Subsection (B) of this section only speaks to the binding effects of an apportionment determination on “those defendants” in determining their right of contribution. Noticeably absent from this section is any reference to the potential binding effect as to “non-parties” to the litigation.
This interpretation is consonant with a decision rendered by the Kentucky Supreme Court in Floyd v. Carlisle Construction Co., Inc., where the court emphasized the distinction between establishing “liability” against a non-party and the mere apportionment of fault. California and Georgia courts make similar distinctions.
While this issue has yet to be resolved by the Ohio Supreme Court, we believe that the more persuasive line of reasoning is set forth in Fisher and Wise. As a consequence, litigants should consider the possibility of raising the affirmative defense of apportionment in any litigation matter where a plaintiff has not pursued a claim against a party for the reason that said party would have immunity from a direct claim by the plaintiff. Pursuant to the allocation protocol set forth in R.C. 2307.23(A)(2), a litigating defendant still has a right to have the jury allocate the percentage of liability to the non-party. The jury’s assessment of any percentage of responsibility to the non-party would not result in a finding “liability,” but could limit the damages imposed by an adverse verdict as to the litigating defendant.
1 Id. at ¶ 38.