“Clearly, the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.” Fabre v. Marin, 623 So.2d 1182, 1185 (Fla. 1993)[2].
That broad statement by the court has been adopted by defense counsel as a basis for attempting to name all manner of parties as Fabre defendants including intentional tortfeasors, spouses, employers with workers’ compensation immunity, and initial tortfeasor in crashworthiness litigation. Fortunately for the public, subsequent interpretation has served to provide a more limited scope to that initial broad proclamation. A prominent issue in products liability actions is the issue of what persons are proper Fabre defendants by way of them being joint or concurrent tortfeasors as opposed to initial/subsequent tortfeasors. The D’Amario v. Ford[3] case looked at this issue in crashworthiness litigation, but the reasoning adopted by the court has wider impact.
In D’Amario, a minor was injured when the car in which he was a passenger burst into flames after colliding with a tree. D’Amario at 427. The driver of the vehicle at the time of the incident was 15 years old and allegedly intoxicated and speeding. Id. The injured minor sued Ford alleging that a defect in the automobile caused the fire and his resulting injuries. Id. at 428. At trial, Ford sought to amend its affirmative defenses to name the driver as a Fabre defendant and was permitted to introduce evidence of the driver’s intoxication and speed. Id. Thereafter, the jury returned a defense verdict without reaching the issue of comparative fault on the interrogatory verdict form. Id.
The automobile manufacturers argued that the driver was a proper Fabre defendant and that fault should be apportioned between all persons who contributed to the injuries without exception for crashworthiness cases. Id. at 435. The Court, though, noted that its determination of the issue in Fabre may not control as “it is not entirely clear that our holding in Fabre resolves the question presented today since Fabre involved a simple automobile accident involving joint and concurrent tortfeasors, and did not involve successive tortfeasors or enhanced or secondary injuries allegedly stemming from a manufacturing or design defect.” Id. (emphasis in original). In reaching its determination that the initial tortfeasor in crashworthiness litigation should not be placed on the verdict form with the manufacturer, the court looked to its prior rulings in medical malpractice litigation for guidance.
The Supreme Court examined two cases wherein an allegedly negligent physician had sought to compare the negligence of the patient in creating the need for medical care, to the physician’s subsequent negligence in treating the patient-created medical condition. Id. at 435-436. In the Stuart v. Hertz case, the Court held that apportionment of fault was not proper between initial and subsequent tortfeasors. Id. [citing Frank M. Stuart, M.D. v. Hertz Corp., 351 So.2d 703 (Fla.1977)]. The Court adopted this reasoning and concluded that crashworthiness cases could be analogized to medical malpractice cases such that the accident-causing fault of the driver (initial tortfeasor) would not be compared to the manufacturer’s fault for the defective condition (subsequent tortfeasor). D’Amario at 437. “The initial accident merely furnished the occasion for the manufacturer’s fault to be tested.” Id. The court further noted that permitting evidence concerning the cause of the initial accident may confuse the jury as it would focus attention on that conduct rather than the conduct of the manufacturer in putting on the market a defective product. Id. at 440. As a final basis for its ruling, the court noted that permitting that evidence could unfairly insulate the manufacturer, as the initial tortfeasor would always be completely at fault when compared to fault for the enhanced injuries. Id. at 434.
It is this same three-pronged reasoning that plaintiffs in products liability actions can use to argue that an initial tortfeasor should not be a Fabre defendant. As the initial accident is presupposed, the accident-causing fault of the initial tortfeasor is not relevant to the negligence of the manufacturer in the design or manufacture of the allegedly defective product or liability related to enhanced injuries. Id.
In the case of Bearint v. Dorel, plaintiff sought damages for the brain injuries sustained by an infant restrained in a child seat when the vehicle in which she was riding was rear-ended. Bearint v. Dorel, 389 F.3d 1339 (11th Cir. 2004). The court permitted the manufacturer of the vehicle, whose front seat was alleged to have collapsed rearward in the accident, to be placed on the verdict form as a Fabre defendant along with Dorel, the manufacturer of the child seat. Id. at 1345. The court, in finding that permitting this was not in error, noted that “the Bearints consistently characterized the impact of the front seat back with the Arriva as a single, simultaneous ‘enhanced injury’ event.” Id. at 1347. The Bearint Court further noted, “the crashworthiness doctrine does not operate to exclude evidence of Saturn’s fault for the simple reason that Saturn was alleged to have contributed to Kagan’s enhanced injuries.” Id. at 1348.
In the case of Sta-Rite v. Levey, the appellate court reversed a jury award after determining that the pool owner and maintenance company should have been Fabre defendants along with the pool pump manufacturer. Sta-Rite Industries, Inc. v. Levey, 909 So. 2d 901, 906 (Fla. 3d DCA 2004). In Sta-Rite, the manufacturer was sued for failing to have an automatic device to shut off the pump once the drain was blocked for more than a few seconds. Id. at 903. Plaintiffs alleged that had this device been included, the injured minor would have been held underwater for only seconds before being released and would have escaped serious injury. Id. at 906. As a basis for the reversal, the court held that the injuries sustained by plaintiff stemmed from a “single uninterrupted series of events.” Id. at 907-908. The court felt that the division of causation between the injuries plaintiff sustained after initially being trapped, and those that he sustained due to the lack of a shut off device was artificial. Id. The court noted that interval between the two was only seconds long, during which time the plaintiff remained trapped by the pump in the same precarious position. Id.
As D’Amario illustrates, there is a viable argument for the exclusion of an improper Fabre defendant in products liability actions, however, plaintiffs must ensure that the pleadings are consistent with it being an enhanced injury claim. Further, plaintiffs should stress the division in time and causation between the initial injury-producing event, and the enhanced injury-producing event.
