Defense lawyers will often seek to avoid their client's liability for an accident by arguing that someone else may have actually caused the harm to the injured party. Similarly, they may seek to minimize their client's liability by arguing that someone else may have worsened the damages suffered by the injured party. In both instances, they are essentially arguing that there should be an apportionment of fault and/or damages, which would either negate or minimize their client's responsibility for compensating an injured party.
Fortunately for injured parties, this type of argument is ineffective in Nevada.
The leading case on apportionment of fault is Summers v. Tice, 199 P.2d 1, 33 Cal. 2d. 80 (Cal. 1948). The Summers v. Tice case involved an interesting set of facts, where two hunters negligently fired their rifles in the general direction of the Plaintiff, and the Plaintiff was struck by one of them. It was unknown which of the two shooters actually fired the shot that struck the Plaintiff.
The Court held, since both of the defendant shooters had acted negligently, the burden of proof was shifted to them, and it was incumbent upon them to establish that they should be absolved from responsibility for the harm. In the absence of meeting their burden of proof, they would be jointly and severally liable to the Plaintiff.
As explained by the Court, "If Defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment."
This approach has been successfully used to support recovery for injured parties in many types of cases, including products liability, food poisoning, and explosion cases. It certainly lends itself well to an explosion case, or any other sort of case where the evidence is virtually destroyed through the incident itself. In fact, the firm was recently able to defeat a summary judgment motion relying, in part, upon the Summers v Tice analysis, in a case where the plaintiff was injured by a bottle that exploded after having been placed in a bonfire. The Summers v. Tice analysis was helpful in convincing the Court to reject the defendant's contention that the defendant was not liable to the plaintiff for the harm that was caused since others had also placed bottles or other objects in the fire, and it was impossible to show which bottle had exploded.
The Summers v. Tice decision speaks to the question of apportionment of causation, i.e., responsibility for the harm, and it has been cited with approval in Nevada in the case of Kleitz v. Raskin, 103 Nev. 325, 738 P.2d 508 (Nev. 1987), for situations "when two separate tortfeasors act near simultaneously and it is unclear which one of the two caused the injury."
On the question of apportionment of damages, the Kleitz v. Raskin decision went further, and explained that a similar approach would apply to a defense attempt to avoid liability where the plaintiff has no ability to apportion damages between two separate incidents.
The Kleitz v. Raskin case involved a plaintiff that was injured in an automobile accident and diagnosed with a probable herniated disc. Approximately one month after the initial accident, the plaintiff was involved in a second automobile accident while on the way to the hospital seeking treatment for the first. The plaintiff settled with the driver from the first accident and continued with the claim against the driver responsible for the second accident. The defense obtained a summary judgment against the plaintiff, based upon the lower court's conclusion that since "...Plaintiff cannot apportion damages as between tortfeasors, the jury would have nothing upon which to base a reasoned opinion as to damages to be awarded in the event liability was established."
On appeal, the Nevada Supreme Court reversed, holding that "...plaintiff must prove that the second accident defendants' actions were a cause of the injury. Once this is established, the burden shifts to the defendant to apportion damages. If the defendant fails to meet his burden, he is jointly and severally liable for the entire amount of damages attributable to the injury."
Thus, in Nevada, where the plaintiff is injured in successive automobile accidents, the Kleitz v. Raskin decision will shift the burden of proof on apportionment of damages to the defendants causing the harm. Of course, there may be other sorts of accidents that would fall within the application of this rule as well.
So, when the defense argues that Plaintiff must apportion its harm between two simultaneous tortfeasors or two separate incidents, Nevada law will shift the burden of proof to the defendant, and in doing so, will properly favor the interest of those with legitimate rights to legal redress, over the interest of those whose negligence has caused harm to another.
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