Larry Coben's recent article in the Law Weekly, published on Aug. 15, asks the question, “Should Vehicle Manufacturers Be Entitled to Apportionment of Liability?” We contend that Pennsylvania's tort law should be applied to vehicle manufacturers in just the same way it is applied to any other litigant.

Allocating liability between a negligent driver and an automobile maker liable for a crashworthiness defect requires the use of straightforward, universally applicable, principles of tort law. The common law provides that each tortfeasor is responsible for all injuries proximately caused by a tort, and therefore it frequently occurs that more than one defendant is liable for a particular injury. “It is axiomatic that, in a common law tort action, the tortfeasor is liable for all injury caused by his negligence or other unlawful conduct,” as in Better v. Forbes, 519 Pa. 422, 426, 548 A.2d 1215, 1217 (1988), and Wallace v. Pennsylvania Railroad, 222 Pa. 556, 564, 71 A. 1086, 1089 (1909) (negligent medical treatment of accident-induced injury did not relieve the original tortfeasor of liability because “the consequences following the operation and resulting directly therefrom are in a legal sense the sequence and result of the original accident”). Common law jurisdictions have rules for which tortfeasor pays how much under these circumstances. In Pennsylvania the Comparative Negligence Act and the Uniform Contribution Among Tort-feasors Act control the question, as in Kemper National P&C Companies v. Smith, 419 Pa. Super. 295, 309, 615 A.2d 372, 379 (1992) (“the rights of contribution and apportionment of liability among multiple defendants is a matter which is governed exclusively by statute in Pennsylvania”).

Pennsylvania law defines “joint tortfeasors” as “two or more persons jointly or severally liable for the same injury.” When it has been determined that two tortfeasors are liable for the same injury, the statutes are applied to determine how much each defendant is obliged to pay. There are not different rules applicable to different torts.

What Damages Is a Negligent Driver Liable For?

A negligent driver is liable for all injury proximately caused by the driver's negligence. This is true whether medical malpractice follows the accident, as in Lamont v. Adams Express, 264 Pa. 17, 22, 107 A. 373, 375 (1919), the plaintiff is especially susceptible to injury, as in Gustison v. Ted Smith Floor Products, 679 A.2d 1304, 1311 (Pa. Super. 1996), or the plaintiff's injuries are made more serious by a crashworthiness defect in the plaintiff's car, as in Harsh v. Petroll, 584 Pa. 606, 623, 887 A.2d 209, 219 (2005). The negligent driver in Harsh argued that as between a negligent driver and a crashworthiness defendant, when “the injuries attributable to each are capable of division on a rational basis, the negligent driver and the manufacturer cannot be subject to joint and several liability,” so that the car's manufacturer could not proceed on a claim under the Uniform Contribution Among Joint Tort-feasors Act. To “support the claim that the … injuries were capable of rational division, the negligent driver relied on the plaintiffs']evidence as demonstrating that defendants survived the initial impact with moderate physical injuries and would not have died absent the fire caused by the car's defective fuel system.” Despite the driver's vigorous argument that the injuries were “divisible,” not “indivisible,” the Supreme Court held that the negligent driver was jointly liable with the manufacturer for all the injuries caused by the defect in the car. “Although crashworthiness theory establishes a basis to support manufacturer liability for enhanced injury, it does not require that a manufacturer be the exclusive cause of such injury, nor does it diminish the causal link that exists between an initial collision and all resultant harm.”

What Damages Is a Crashworthiness Defendant Liable For?

A crashworthiness defendant is liable for all injury proximately caused by a defect in the vehicle. In other words, an automobile maker may be “civilly liable to an injured plaintiff for increased or enhanced injuries over and above those which would have been sustained as a result of the initial impact.” Like the negligent driver, the manufacturer is liable for all the injuries caused by its tort, but, in some accidents, some injuries are inevitable from the accident itself, and some are enhanced or caused by the defect. Only the injuries “over and above” those which would have occurred anyway are the responsibility of the manufacturer.