Comparative fault ameliorates the harsh effects of the all-or- nothing defense of contributory negligence and provides a mechanism for the apportionment of fault among those whose fault caused loss or damage to an injured plaintiff or plaintiffs. One of the perplexing problems in construing comparative fault statutes is in determining whose fault should be considered in the apportionment of fault in tort litigation, and more specifically, whether the fault of nonparties should be considered in the allocation of fault, and if so, which nonparties.
The nonparty issue inheres in any comparative negligence or fault statute. While the issue is sometimes directly addressed in a statute, often it is not. Minnesota’s comparative negligence and fault statutes did not directly address that question, leaving it to the courts to resolve the issue.
Minnesota’s Comparative Fault Act is a modified comparative fault statute. A plaintiff will be barred from recovery if the plaintiff’s fault is greater than the fault of the person from whom recovery is sought. In general, Minnesota requires individual comparisons of fault. A plaintiff will be barred from recovery if the plaintiff’s fault is greater than the fault of each individual defendant.
Minnesota’s default rule is several liability. That means that defendants will be held liable for only their percentage of fault unless one of the four joint and several liability exceptions applies, one of which imposes joint and several liability on a defendant who is more than 50% at fault.
The greater the distribution of fault, the greater the likelihood that any individual defendant will be held severally liable rather than jointly and severally liable. This means that the issue of whose fault is included in the allocation of fault will be critical, not only in determining whether a plaintiff is entitled to recover against any individual defendant, but also whether any given defendant will be only severally liable or jointly and severally liable to the plaintiff.
The rule of several liability became the default rule in Minnesota in a 2003 amendment to the Comparative Fault Act. Section 604.02, subdivision 1 of the Act reads in part as follows: “When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each,” subject to four enumerated exceptions where joint and several liability continues to apply.
A loss reallocation statute, enacted in 1978, further provides that if a party’s equitable share of the obligation is uncollectible after the entry of judgment, it must be reallocated among the remaining parties to the litigation according to their respective percentages of fault.
The problem of determining whose fault should be considered in the apportionment of fault has persisted from the time of the adoption of the comparative negligence statute in 1969, through the adoption of the 1978 and 2003 amendments. If anything, inconsistencies in the language in the amendments amplified the problem. The Minnesota Supreme Court had previously determined that the fault of certain nonparties should be considered in the allocation of fault, but not in cases arising after the 2003 amendment. The issues of whether the fault of nonparties should be considered in the apportionment of fault under post- amendment section 604.02, subdivision 1 and its impact on those who were parties to the litigation remained unresolved until the supreme court’s decisions in Staab v. Diocese of St. Cloud in 2012 and 2014.
The plaintiff in the case was injured at a parish school, owned and operated by the diocese, when her husband pushed her wheelchair over a five-inch drop, causing her to pitch forward and out of the chair. The plaintiff brought suit against the Diocese of St. Cloud. At trial, the fault of the diocese and the plaintiff’s husband was submitted to the jury, which found both to be at fault. The jury allocated 50% of the fault to the diocese and 50% to the husband, even though he was not a party to the litigation.
Staab I required the supreme court to consider for the first time the impact of the legislature’s 2003 amendment of Minnesota Statutes section 604.02, subdivision 1 of the Comparative Fault Act. That amendment was the culmination of years of legislative erosion of the rule of joint and several liability, a process that began in 1978 and concluded in the 2003 legislative amendments, making several liability the default rule, subject to limited exceptions.
The court construed the amendment to mean that “persons . . . severally liable” includes nonparties, and held that Mr. Staab’s fault was appropriately considered in the apportionment of fault in the case, and that the consequence was that the other severally liable party, the diocese, would be held liable for only its percentage of fault.
In Staab II, decided two years later, the supreme court held that the loss reallocation statute in section 604.02, subdivision 2, which requires reallocation of the uncollectible share of a party (defined to include a non-party), could not be applied to increase the liability of a severally liable party.
The upshot of the Staab decisions is that where the fault of a nonparty is considered, it will have consequences, one of which is that the parties to a lawsuit will be held liable only for their percentages of fault, unless one of the joint and several liability exceptions applies, and that the loss reallocation statute cannot be used to increase the obligation of a severally liable party.
Staab I and II resolved two of the issues concerning the allocation of fault. Others remain, however, including the circumstances under which the fault of nonparties will be considered; the rule of loss reallocation and its relationship to joint and several liability; the impact of the Staab decisions on products liability loss reallocation, which is subject to a special reallocation rule; and, finally, the impact of the decisions on cases involving third-party contribution claims against employers.
The purpose of this article is to address these issues in depth. Part II is a short history of comparative negligence and fault. It looks at the law in distinct periods, including before and after the 1978 amendments to the Comparative Fault Act. And, because Minnesota’s comparative negligence statute was based on Wisconsin’s, it also surveys early Wisconsin decisions dealing with the problem of the nonparty. Part III takes a detailed look at the Staab decisions. Part IV considers a variety of situations where the issue of the fault of a nonparty may arise. Part V examines the impact of the Staab decisions on joint and several liability and loss reallocation. Part VI considers the impact of the decisions on section 604.02, subdivision 3, which is the special loss reallocation provision that applies to products liability cases where the parties are in the chain of manufacture and distribution. Part VII considers the impact of the Staab decisions on contribution claims by third parties against employers. Part VIII is the conclusion.