The full case caption appears at the
end of this opinion. PER CURIAM. We have for review a decision of the Fourth District Court of Appealaddressing the following question, which the court certified to be of great publicimportance:
WHERE A PLAINTIFF IS INVOLVED IN TWOUNRELATED ACCIDENTS AND SUES ONLY THETORTFEASOR IN THE FIRST ACCIDENT, ARE THEPRINCIPLES OF APPORTIONMENT CONTAINED INC.F. HAMBLEN, INC. V. OWENS, 127 Fla. 91, 172 So.694, 696 (1937), AND WASHEWICH V. LeFAVE, 248So.2d 670, 672 (Fla. 4TH DCA 1971) APPLICABLE?
Gross v. Lyons, 721 So. 2d 304, 312 (Fla. 4th DCA 1998). We have jurisdiction.See art. V, � 3(b)(4), Fla. Const. We answer the certified question affirmatively. The facts and procedure are as follows:
[Respondent]‘s lawsuit arises from a [July 1992]rear-end collision that she claims resulted in multipleinjuries, including an injury to her back. Three monthslater [respondent] was involved in a second automobileaccident. [Respondent] claimed that she did not suffer anyadditional injuries as a result of this second accident andthat her damages resulted from the first accident. When[respondent]‘s condition did not improve, [respondent]‘streating orthopedic surgeon performed a fusion on herlower lumbar spine. [The operation and subsequenttherapy occurred after the second accident.] [Petitioner] admitted liability for causing the firstaccident, but denied being the legal cause of[respondent]‘s damages. [Petitioner] claimed that any of[respondent]‘s medical problems, including her backsurgery, resulted from a preexisting back condition [a Parsdefect] or alternatively from the second accident.
Gross, 721 So. 2d at 305. The trial court instructed the jury that respondent could recover for anaggravation of a preexisting condition; however, the court also gave the followinginstruction concerning the second accident:
The court has determined and now instructs you asa matter of law that Mrs. Gross was negligent in theoperation of a motor vehicle and that such negligence wasthe sole legal cause of the collision involving RebeccaLyons on July 2, 1992.Rebecca Lyons is therefore entitled to recover fromSelma Gross such loss, injury or damage as is shown bythe greater weight of the evidence to have thus beencaused.You are further instructed that Rebecca Lyons maynot recover any loss, injury or damage caused by thesecond accident of September 15, 1992.
(Emphasis added.) Subsequent to receiving the above instruction, the jury returneda defense verdict and awarded zero damages. On appeal, the Fourth District Court of Appeal reversed the trial court’s rulingon the instruction because
if the injuries could not be apportioned between the twoaccidents, the tortfeasor causing the first accident could beheld responsible for the entire condition if plaintiff hasmade all reasonable efforts to apportion the injuries.Because the jury instruction was an incompletestatement of the law concerning subsequent accidents, thejury might reasonably have been confused and misled asto what to do if they determined a combination of bothaccidents caused [respondent]‘s condition but that thedamages could not be separated. In conjunction with thecomplete instruction given on aggravation of a preexistingcondition, this incomplete instruction might have alsoimproperly led the jury to believe that if the damagescould not be apportioned, the first tortfeasor would not beresponsible for the damages.
Id. at 308. C. F. HAMBLEN, INC. V. OWENS On review before this Court, petitioner argues that the Fourth District erred inextending the rule in C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694, 696(1937), to the instant scenario so that a previous tortfeasor may be liable for theharm caused by a subsequent tortfeasor if the jury cannot apportion the injurybetween the two. Petitioner also advocates that this Court should adopt the “roughapportionment” method of dividing damage where a jury cannot apportion by apreponderance of the evidence. We disagree with petitioner on both counts. The reasoning in support of Hamblen and its progeny also supports theapplication of the Hamblen rationale to the instant circumstance. Hamblenrecognized the
settled law that where injuries aggravate an existingailment or develop a latent one, the person whosenegligence caused the injury is required to respond indamages for the results of the disease as well as theoriginal injury. In such cases the injury is the prime causewhich opens the way to and sets in motion the other causeand the latter cannot be regarded as an independent causeof injury, nor can the wrongdoer be allowed to apportionthe measure of responsibility to the initial cause. Thedefendant must be responsible in damages for such part ofthe diseased condition as his negligence has caused and ifthere can be no apportionment, or it cannot be said thatthe disease would have existed apart from the injury, thenhe is responsible for the diseased condition.
127 Fla. at 95-96, 172 So. at 696. The Fourth District in Washewich v. LeFave, 248 So. 2d 670 (Fla. 4th DCA1971), applied Hamblen to an instance of successive accidents and held that
where the evidence reveals two successive accidents, andthe defendant is only responsible for the second accident,the burden is on the plaintiff to prove to the extentreasonably possible what injuries were proximatelycaused by each of the two accidents. The jury should beinstructed to make an apportionment of the damages asbetween the two accidents insofar as it may be reasonablypossible to do so, but if an apportionment is impossible,the jury may be authorized to charge the defendant withall damages flowing from the entire injury.
Washewich, 248 So. 2d at 672-73. The Washewich court relied on what it found tobe the purpose of the Hamblen court’s decision against apportionment: “The rule ofHamblen v. Owens has as its purpose the prevention of a subsequent wrongdoerfrom escaping responsibility where his conduct contributed to the creation of thesituation in which the problems of apportionment arose.” Washewich, 248 So. 2d at673. An additional purpose in support of the Washewich decision is that the injuredparty should be able to recover for his or her injuries and the recovery should not bediminished because of a jury’s inability to apportion injury between wrongdoers. In the present case, we have the reverse of Hamblen and Washewich, i.e., theprior tortfeasor is sued, but the concerns are the same. In keeping with Hamblen’sprinciple of making the plaintiff whole, we conclude that where the plaintiff sues thefirst of two successive tortfeasors and establishes liability, but the jury cannotapportion the injury between the two after both parties have had the opportunity topresent evidence on the issue, the first tortfeasor will be liable for the entire injury.The requirement of proving proximate cause as it relates to the issue ofapportionment is relaxed so as to allow recovery for the indivisible injury. See id. at672. Furthermore, “a tortfeasor should not escape responsibility when twoindependent causes both proximately contribute to cause an ultimate injury andplaintiff has done everything that could reasonably have been expected of her tosegregate the damages as between the two accidents.” Gross, 721 So. 2d at 307(internal quotation marks omitted). In such an instance, prior tortfeasors will beliable for whole injuries just as subsequent tortfeasors have been liable for entireunapportionable injuries, thereby providing full relief for proven injuries suffered byvictims of negligence. Imposition of liability for the indivisible injury upon the priortortfeasor mirrors the like imposition on subsequent tortfeasors imposed byHamblen. THE INDIVISIBLE INJURY RULE Our application of Hamblen to the instant scenario effectively results in ourapplication of the “Indivisible Injury Rule” under which successive tortfeasors causedamages which the jury cannot apportion, thus giving rise to their liability for all ofthe damages. The Restatement (Second) of Torts provides for the apportionment ofdamages between various tortfeasors who contribute to injury if each tortfeasor’sharm is “distinct” or there is a “reasonable basis for determining the contribution ofeach cause to a single harm.” Restatement (Second) of Torts � 433A (1965).Conversely, the Restatement explains that when “two or more causes combine toproduce such a single [harm], incapable of division on any logical or reasonablebasis, and each is a substantial factor in bringing about the harm, the courts haverefused to make an arbitrary apportionment for its own sake, and each of the causesis charged with the responsibility for the entire harm.” Id. � 433A(2) cmt. i. Manystates apply this rule. See, e.g., Stubbs v. Ringler, Nos. 85C-OC-1, 86C-MR-13,1988 WL 117284, at *3 (Del Super. Ct. Oct. 6, 1988)(citing Leishman v. Brady, 3A.2d 118, 120 (Del. Super. Ct. 1938)); Carlson v. K-Mart Corp., No. WD53151,1998 WL 6951, at *3 (Mo. Ct. App. Jan. 13, 1998)(citing Barlow v. Tornhill, 537S.W.2d 412, 418 (Mo. 1976)); Ravo v. Rogatnick, 514 N.E.2d 1104, 1107 (N.Y.1987); Pang v. Minch, 559 N.E.2d 1313, 1323-25 (Ohio 1990); Bradford v. Vento,997 S.W.2d 713, 734 (Tex. App. 1999)(“Joint and several liability is alsoappropriate when the tortious acts of multiple tortfeasors combine to produce asingle, indivisible injury.”). Application of the indivisible injury rule is not inconsistent with Floridastatutory law concerning the apportionment of damages amongst tortfeasors basedon fault. Section 768.81(3), Florida Statutes (1999), provides that trial courts “shallenter judgment against each party liable on the basis of such party’s percentage offault and not on the basis of the doctrine of joint and several liability.” In Fabre v.Marin, 623 So. 2d 1182 (Fla. 1993), this Court observed that the Legislature’sintention in enacting section 768.81 was to “replace joint and several liability with asystem that requires each party to pay for noneconomic damages only in proportionto the percentage of fault by which that defendant contributed to the accident.”Fabre, 623 So. 2d at 1185. The indivisible injury rule and the apportionment ofdamages based on fault are not mutually exclusive. Here, for example, petitionerwas the sole legal cause for the accident; therefore, if that accident was a substantialfactor in causing respondent to suffer an indivisible injury, then petitioner would beliable for the entire damage. Accordingly, we hereby adopt into Florida law theindivisible injury rule to be applied when a jury cannot apportion injury, as quotedfrom the Arizona Supreme Court: “When the tortious conduct of more than onedefendant contributes to one indivisible injury, the entire amount of damageresulting from all contributing causes is the total amount of damages recoverable bythe plaintiff.” Piner v. Superior Court, 962 P.2d 909, 915-16 (Ariz. 1998)(internalquotation marks omitted). ROUGH APPORTIONMENT In so holding, we reject petitioner’s invitation for this Court to adopt intoFlorida law the “rough apportionment” method of dividing damages where the jurycannot apportion injury by a preponderance of the evidence. The Supreme Court ofHawaii in a scenario similar to the case sub judice held that it was error to instructthe jury that the defendant in the first accident would be liable for all the damages ifit could not apportion damages between successive unrelated accidents. That courtheld that
the proper procedure is for the trial court to instruct thejury that if it is unable to determine by a preponderance ofthe evidence how much of the plaintiff’s damages can beattributed to the defendant’s negligence, it may make arough apportionment. Heretofore, this court hasrecognized thatthe law never insists upon a higher degree ofcertainty as to the amount of damages thanthe nature of the case admits, and that where,as here, the fact of damage is established, amore liberal rule is allowed in determiningthe amount . . . .Inherent in such a lessening of the burden of proofis the assumption that both parties will be permitted tointroduce all relevant evidence pertaining to all theaccidents even though all the alleged tortfeasors may notbe before the court in the same action . . . .The trial court should instruct the jury that if it isunable to make even a rough apportionment, it mustapportion the damages equally among the variousaccidents. We recognize that this resolution is arbitrary.It is, however, no less arbitrary than placing the entire losson one defendant.
Loui v. Oakley, 438 P.2d 393, 397 (Haw. 1968) (footnote omitted). We decline to adopt “rough apportionment” into Florida law because it is aspeculative method of apportioning damage since the jury is asked to make adecision by less than a preponderance of the evidence. [FOOTNOTE 1] Furthermore, to proceed tothe next stage of the “rough apportionment” method and simply divide evenly thedamage between tortfeasors would work, in many cases, to deny plaintiffs recoveryfrom tortfeasors not a party to the proceeding based on an apportionment that,again, is not supported by the greater weight of the evidence. Under either guise of”rough apportionment,” victims of negligence would be prevented from beingcompensated because inferior evidence would result in an arbitrary apportionment.Finally, we view our expansion of the rule in Hamblen and the adoption of theindivisible injury rule to be less of a departure from established Florida precedentthan would be the case if we adopted “rough apportionment” into our jurisprudence.We therefore decline to adopt “rough apportionment.” Accordingly, we answer the certified question in the affirmative and approvethe decision below. It is so ordered. HARDING, C.J., and SHAW, WELLS, ANSTEAD, LEWIS and QUINCE, JJ.,concur. PARIENTE, J., recused. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IFFILED, DETERMINED. :::FOOTNOTES::: FN1 A “preponderance” of the evidence is defined as “the greater weight of the evidence,” Black’s Law Dictionary 1201 (7th ed. 1999), or evidence that “more likely than not” tends to prove a certain proposition. American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) (quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
Gross v. Lyons Supreme Court of Florida No. SC94201 SELMA GROSS, Petitioner, vs. REBECCA LYONS, Respondent. [May 18, 2000] Application for Review of the Decision of the District Court of Appeal – Certified GreatPublic Importance Fourth District – Case No. 4D96-1399 (Palm Beach County) Elizabeth M. Rodriguez of Kubicki Draper, Miami, Florida,for Petitioner Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, West Palm Beach,Florida,for Respondent Richard A. Barnett, Hollywood, Florida,for The Academy of Florida Trial Lawyers, Amicus Curiae
