v.
APOUA AND
and
High Court of
Trial Division
CA No. 121-95
[1] Where different defendants
each played a role in the harm suffered by the plaintiff, but the conduct of
the defendants was not jointly
linked, and the harm is not indivisible and the tortfeasors were not acting in
concert as part of one inextricable,
continuous act, the strictures of joint and several liability do not
apply.
[2] Where it is possible to apportion liability,
the need to invoke joint and several liability is negated.
[3] A.S.C.A.
§ 43.5101 abolishes the contributory negligence bar to recovery, but because it
is silent on the appropriate application of the principles of joint and several
liability or comparative fault in a multiple tortfeasor situation, the court must decide on the proper standard to
apply.
[4] Where it is possible to estimate and assign fault, it is a more
equitable and fitting approach than automatically deeming liability “joint and
several.” [2ASR3d143]
[5]
A.S.C.A. § 27.0531(f) was enacted to make establishments that directly benefit
financially from the consumption of alcohol accountable to the public, but it
was not intended to unfairly penalize businesses, and it is unfair to invoke
joint and several liability where it is possible to apportion fault to the
parties involved.
[6] Operationally,
A.S.C.A. § 43.5101 functions as a comparative fault mechanism, and this court
has previously affirmed the doctrine of comparative fault in our jurisdiction.
[7] Where a party timely submits a motion for new
trial on grounds that the court abused its discretion in an evidentiary
finding, but fails to timely file its brief and arguments, the motion will not
be considered.
Before: KRUSE, Chief Justice, TIUANU`U, Chief Associate Judge, and SAGAPOLUTELE, Associate Justice
Counsel: For
Plaintiff, Jennifer L.
For Defendants Apoua and Bill Tendrick [sic]
d.b.a. The Country Club, Mason Martin
ORDER
DENYING NOTION FOR A NEW TRIAL
Introduction
Masania`i sued Bill and Apoua Tedrick d.b.a. the
Country Club (referred to jointly as the “Country Club”) and Asuelu Tiumalu (“Tiumalu”) and Samoa Alefosio
(“Alefosio”) to recover the
damages suffered on the evening of February 24, 1994. A contested trial was held with counsel for
both sides present. On
We found
the Country Club liable for 25 percent of the damages as follows: $79,499 for
future wages and $25,000.00 for pain and suffering. Total damages accorded
these defendants were $104,499.
We ordered Alefosio and Tiumalu jointly and
severally liable for 50 percent of all damages as follows: $158,997 for
future earnings, $50,000 for
general damages including pain and suffering and $100,000 in punitive damages.
Total damages accorded these defendants were $308,997.
On
Discussion
I. Apportionment of Fault and
Liability
The first issue presented to us by plaintiff deals with the apportionment
of fault and liability. Plaintiff argues that “but for his admittance onto the premises of the
Country Club, he would not have been hurt” — and, therefore, joint and several
liability should apply. Plaintiff
posited an alternative argument — that “it is impossible to say how much damage
is apportioned to which actor.” (Oral Argument, February 17, 1998.)
[1-2] We find that although each
actor may have played a role in the harm suffered by Masania`i, the conduct of
each was not jointly linked. Masania`i
would not have been hurt had he not been out there seeking and inciting trouble. But, on the other hand, he would not have
suffered had others, including Tiumalu and Alefosio, not acted on their
compulsions, conduct which served as the supervening cause of his harm. These
actions serve as disparate links in the harm suffered by Masania`i and these
parties did not act in concert as part of one inextricable, continuous act. We, therefore, do not believe that they fall
within the intended strictures of joint and several liability, a remedy which
is invoked when the harm is considered indivisible or the tortfeasors were
acting in concert.[1] We also believe that it is possible to apportion
liability in this case, a fact which negates the need to invoke joint and
several liability. This court has
apportioned damages in the past and believes that the allocation of fault is
fitting here.
[3] Legislatures enacted comparative liability statutes
for a simple reason: to eliminate the harsh result of the complete bar to
recovery that would result when the plaintiff himself may have been partially at fault. [2ASR3d145]
This statutory and judicial[2]
departure to the common law served to achieve greater fairness in
situations in which even the most minor contributory negligence may have barred
any sort of recovery. By enacting A.S.C.A. § 43.5101, the Fono clearly
abolishes the contributory negligence bar to recovery, but remains silent on
the appropriate application of the principles of joint and several liability or
comparative fault in a multiple tortfeasor situation. The court,
therefore, must decide on the proper standard to apply.
In the past, we have diverged from strictly
adhering to the common-law rule of joint and several liability when we find it
is possible to ascertain and allot comparative liability to the parties
involved.[3] While it is true that this course is
one that only a minority of jurisdictions have adopted, we feel it the most
just position to take. And moreover
it is under our purview to adopt this albeit minority position, but one which
marks the emerging trend in the common law.
The fundamental goals of fairness and
equity underlied the Fono’s statutory divergence from the common law and
they similarly motivate us here.
[4-5] Just as comparative negligence is a more equitable outcome than contributory
negligence, so is the apportionment of liability according to fault. If it is possible to estimate and assign
fault, this would be a more equitable and fitting approach than automatically
deeming liability “joint and several.”[4]
Moreover, we disagree with plaintiff’s argument that
we should diverge from the common law in one instance (i.e. to grant him relief notwithstanding his own
contribution to his injuries) and invoke the common law in another (i.e. to grant joint and several
liability to all defendants) for ostensibly no reason other than to afford him
the greatest [2ASR3d146] award of
damages. We can come to no other conclusion since the rationale and logic
underlying these arguments counter, and thus negate, each other.
Abrogating the harshness of contributory negligence
doctrine was the intention of the Fono when they passed A.S.C.A. §
43.5101. This statutory modification
served as a legal departure from
the common law that more equitably apportioned liability according to
culpability. Although not explicitly stated in the statute, this statute
operationally functions as a comparative fault mechanism.
[6] This court has previously affirmed the doctrine of
comparative fault in our jurisdiction. In United
Airlines Employee Credit Union v. M/V
Sans End, 15 A.S.R.2d 95, 106 (1990), the court relied upon the rule
enunciated by the United States Supreme Court: “liability for such damage is to
be allocated among the parties proportionately to the comparative degree of
their fault.”
In Saufo`i
v. American Samoan Gov’t, 14 A.S.R.2d 15 (1990),
aff’d, 19 A.S.R.2d 54 (App.
For the aforementioned
reasons, we find that the Country Club should not be held jointly and severally
liable. This court is not prepared to allow plaintiff to escape all blame for
his own conduct under the cloak of this
doctrine.
II. Untimely Filing
[7] Second, the Country Club seeks a new trial on grounds
that the court abused its discretion in finding that Masania`i was intoxicated
when he was allowed entry onto the club’s premises. Unfortunately, although [2ASR3d147] defendant submitted this
motion in a timely manner, it failed to meet the deadline for the submission of
its brief and arguments. As a result, we
decline to consider defendant’s motion on procedural grounds.[6] Our order and opinion with respect to
this second issue stands without modification.
Conclusion
Both
plaintiff’s and defendant’s motions for a new trial are denied.
It is so
Ordered.
**********
[1] See W.
Prosser and F. Keeton on the Law of Torts, Fifth Edition, St. Paul: West
Publishing, 459 (1984); Restatement
(Second) of Torts § 875, “Contributing
Tortfeasors—General Rule” and § 876 “Persons Acting in Concert
(1979); United
Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 106 (1990); Saufo`i
v. American Samoan Gov’t[ ], 14
A.S.R.2d 15 (1990); aff’d, 19 A.S.R.2d 54 (App. Div. 1991); Interocean
Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76; Cf. Eute v. Etimani, 24
A.S.R.2d 139 (1993).
[2] See e.g. Bradley v.
Appalachian Power Company, 256 S.E. 2d 879 (
[3] See supra note 1.
[4] The Fono enacted statute A.S.C.A. § 27.0531(f)
to make those establishments that directly benefit financially from the
consumption of alcohol accountable to the public. Along with profit and gain
come social and legal responsibility, especially in an area that carries such a
high potential for harm. But this statute was not intended to unfairly penalize
businesses. It would be unfair to invoke joint and several liability when we
find it is possible to apportion fault to the parties involved. The Country
Club should not be made to bear the burden of damages alone in the event that
indemnification is not possible.
[5] The Hercules
court ruled that: Under a “proportional fault” system . . . complete
apportionment between the negligent parties, based on their respective degree
of fault, is the proper method for calculating and awarding damages.
[6] We note, however, that a great amount of evidence was
presented to the court to show that Masania`i was intoxicated when he entered
the Country Club, We carefully weighed the evidence and found that the Country
Club breached its statutory duty, under A.S.C.A. § 27.0531(f), to refrain from
allowing intoxicated patrons onto the premises. (See Masaniai v.
The Country Club, 2 A.S.R.3d 120, 128 which reads, “Masania`i
voluntarily consumed an inordinate amount of alcohol.”)