I spent a good portion of last week preparing for a trial scheduled for today that settled on Friday. It is a little depressing how many man hours our firm spends every year preparing cases for trial that settle. But every time you really prepare for a trial, you learn and, sometimes more importantly, relearn law and strategies that help you down the road.
The trial was an auto accident case pending in Prince George’s County. The evidence in the case would show a classic chain reaction car accident: Vehicle #2 rear-ends Vehicle #1 and Vehicle #3 hits Vehicle #2 which hits Vehicle #1. Plaintiff felt two impacts which could only happen under this fact pattern.
Plaintiff’s treating orthopedic surgeon would testify that the injury is related to the accident. The problem – which caused me a momentary freakout – was that the doctor could not parse which accident caused the injury. How could the doctor possibly know which accident caused the injury?
We have joint and several liability in Maryland and there is no question that there can be more than one proximate cause of an accident. But my fear was that because the first impact was clearly more significant than the second this fact would highlight to the court that Vehicle #3 may not have been a significant contributor to Plaintiff’s injuries. So, the driver of Vehicle #3’s lawyer Erie Insurance) could argue that there is no evidence that his negligence actually caused injury. Then, Vehicle #2’s lawyer (also, ironically, Erie) would argue, you know, that same logic applies to us. Even if our drivers are negligent, the joint argument goes, how is this different from a drunk in a bar throwing a punch that never lands? Negligence in the air is not negligence.
I couldn’t put my hands on it right away but I was confident there was Maryland law that would save me from this argument. See Thodos v. Bland, 542 A.2d 1307, 75 Md.App. 700 (Md. App., 1987) and, even better, Consumer Protection Division v. Morgan, 387 Md. 125 (2005). But even with that law, I was struggling with the rationale. I wanted a source more reliable than my own argument of “it would be even more unfair if the plaintiff could not recover in such a case.”
The best answer is in the Second Restatement of Torts. I didn’t find this myself. I posted a question on the Maryland Association of Justice listserv. The clearest rationale is presented in Comment d to Section 433B:
The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility. As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former.
The shifting of the burden makes sense. If the defendant can provide medical evidence that defendant’s negligence was not a substantial contributing cause to the plaintiffs’ injuries, than that defendant should not be held responsible. But the “you can’t prove which one of us hurt you” defense should not be allowed to stand and, at least in the majority of jurisdictions, it is not.
There is, rightfully so, a lot of hubbub when our laws appear to make no sense. But, more often than not, our legislatures and our courts get it right.