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Apportionment of Damages in Nevada When Two Accidents Injure the Plaintiff

Posted by: on Tue, Nov 27, 2012

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It’s a typical scenario. An individual is injured in an accident or trip and fall and then files suit against the defendants. During discovery, the defendants ascertain that rather than being a simple cookie cutter injury case, it has now become more medically complex because the plaintiff suffered the same injury previously in another earlier accident. How is the jury or judge to handle the apportionment of the harm when there were two contributing accidents leading up to the same or similar injury? The Nevada Supreme Court addressed these issues in the case of Kleitz v. Raskin, 738 P.2d 508 (1987). In the Kleitz case, appellant Kleitz was injured in an automobile accident on December 23, 1981. Dr. Bentley examined Kleitz and determined that he was suffering from a loss of lumbar curve due to muscle spasms. Dr. Bentley again examined Kleitz on January 25, 1982 and determined that Kleitz should be hospitalized, thinking that there was a good possibility that Kleitz had a herniated disc.

While driving to the hospital on January 25th, Kleitz was involved in a second automobile accident. The driver of the other car in the second accident was respondent, Ellen Raskin. In 1985, Kleitz brought suit against the persons involved in both the first accident and the second accident. Kleitz settled with the first accident defendants but reserved his rights against Raskin. Raskin then moved for summary judgment alleging that the second accident did not cause additional injury to Kleitz. Raskin supported her motion for summary judgment with the deposition testimony of Dr. Bentley, who stated that he had examined Kleitz before and after the second accident and found that his condition was unchanged. Kleitz moved for partial summary judgment on a legal issue asking the trial court if two unrelated tortfeasors in separate automobile accidents produce an injury to the plaintiff which cannot be apportioned between the two impacts, are both jointly and severally liable to the plaintiff.

The trial court granted Raskin’s motion for summary judgment concluding that “Inasmuch as plaintiff cannot apportion damages as between tortfeasors, the jury would have nothing upon which to base a reasoned opinion as to damages to be awarded in the event liability was established.” Upon appeal, the Nevada Supreme Court concluded that under the facts presented, the plaintiff must prove that the second accident defendant’s actions were the cause of the injury. Once this is established, the burden of proof then shifts to the defendant to apportion damages. If the defendant fails to meet his burden, then he is jointly and severally liable for the entire amount of the plaintiff’s damages attributable to the injury.

The Nevada Supreme Court relied heavily upon the Washington Supreme Court case of Phennah v. Whalen, 621 P. 2d 1304 (1980). In Phennah, the plaintiff was injured in two automobile accidents occurring approximately four months apart. Trial testimony established that both accidents caused the plaintiff’s injury, but there was no basis for segregating or apportioning damages among the causes. The issue before the court was whether the plaintiff was required to proffer an evidentiary basis for the segregation of damages among successive tortfeasors. The Wisconsin Supreme Court held as follows:

“Once a plaintiff has proved that each successive negligent defendant has caused some damage, the burden of proving allocation of those damages among themselves is upon the defendants; if the jury finds that the harm is indivisible, than the defendants are jointly and severally liable for the entire harm. Id. 1310.”

The Nevada Supreme Court expressly agreed with the findings and result in the Phennah decision and noted that a similar legal principle is also found in section 433B(2) of the Restatement of Torts, which explains that the rational for placing upon the defendant the burden of apportioning damages as follows:

“As between the proved tortfeasors 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.” Restatement (Second) of Torts, Section 433B Comment D (1965).

As is made clear from both the Restatement and the Phennah decision, before the burden shifts to the defendant to apportion damages, the plaintiff must first establish that the defendant’s actions were the cause of his injuries. The Nevada Supreme Court reversed summary judgment but noted that Raskin may renew his motion for summary judgment at which time Kleitz must demonstrate a genuine issue of material fact concerning whether the second accident contributed to his injury.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

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