Seattle-First National Bank v. Shoreline Concrete Co.

588 P.2d 1308, 91 Wash. 2d 230, 1978 Wash. LEXIS 1178
CourtWashington Supreme Court
DecidedDecember 28, 1978
Docket44996
StatusPublished
Cited by151 cases

This text of 588 P.2d 1308 (Seattle-First National Bank v. Shoreline Concrete Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seattle-First National Bank v. Shoreline Concrete Co., 588 P.2d 1308, 91 Wash. 2d 230, 1978 Wash. LEXIS 1178 (Wash. 1978).

Opinions

Stafford, J.

This court granted direct review of a trial court order which restricts the liability of multiple tortfeasors to their apportioned fault. We affirm in part, reverse in part and remand for trial.

George Stanford, an employee of Batterman Engineering and Construction Co. (Batterman), was electrocuted when the boom of the truck upon which he was working came in contact with a high-energy power line. The truck was owned and operated by Shoreline Concrete Co. (Shoreline).

Seattle-First National Bank (Sea-lst), as personal representative of the Stanford estate, commenced an action for wrongful death against Shoreline and Dico Corp. (Dico), the manufacturer of the boom. Sea-lst alleged negligent, [233]*233reckless and wanton misconduct by Shoreline and additionally asserted strict liability and a warranty claim against Dico.1 The complaint also prayed for judgment against "any other defendant that might later be joined by way of third-party complaint . . . who might be responsible for decedent's death ..."

Shoreline and Dico, by third-party complaints, asserted claims for indemnity, contribution or apportionment against Batterman. At this juncture, Batterman moved for a summary judgment of dismissal arguing that the Industrial Insurance Act (RCW 51.04 et seq.) barred the third-party claims. Apparently before the hearing on Batterman's motion, Dico was granted leave to add as an additional third-party defendant Cutler-Hammer, Inc. (Cutler), who was the manufacturer of the boom's toggle switch.2

The trial court denied Batterman's motion and entered the order for which review is here sought. Insofar as relevant, the order provides that (1) Batterman shall remain a party to the action; (2) the jury shall apportion the "fault" of all parties (plaintiff, defendants and third-party defendants); (3) each defendant and third-party defendant's liability to Sea-lst shall be limited to that party's apportioned "fault"; and (4) any judgment entered against Batterman will be fully satisfied upon proof of Batterman's premium payments into the industrial insurance fund.

Sea-lst sought direct review asserting that the order (1) abolishes the joint and several liability of multiple tortfeasors; (2) improperly directs that Stanford's contributory negligence shall be a damage-reducing factor in a strict liability action; and (3) by retaining Batterman as a party to [234]*234the action, is inconsistent with Batterman's immunity under the Industrial Insurance Act and thus prejudices the recovery rights of the Stanford estate. For reasons not here relevant, Batterman has not sought review.

The challenged order raises three basic issues. I. Shall the joint and several liability of multiple tort-feasors be abolished? II. In an action based upon a defendant's strict liability, is a plaintiff's contributory negligence a damage-reducing factor? III. Should Batterman, an employer covered by the Industrial Insurance Act, have been retained as a third-party defendant in this action wherein the underlying conduct giving rise to Batterman's liability is its alleged negligence to Stanford, the decedent?

I

Joint and Several Liability

All parties agree the challenged order would abolish the joint and several liability of multiple tort-feasors by restricting each tort-feasor's liability to the injured party to that tort-feasor's respective fault. Additionally, the order implicitly requires the injured party to seek recovery from all potential tort-feasors in one lawsuit to effectuate full recovery.

This is a radical departure from our traditional rules of liability. Respondents suggest two reasons in support of such a change. First, they urge that joint and several liability should only be imposed upon those multiple tort-feasors who cause a "joint tort." Second, they argue that the recent adoption of comparative negligence (RCW 4.22.010) and the apparent "trend" permitting contribution among multiple tort-feasors logically require that we discard joint and several liability. We disagree.

It has long been recognized that the single tortfeasor is liable for all damage for which his tortious conduct is a proximate cause. See Boeing Co. v. State, 89 Wn.2d 443, 448, 572 P.2d 8 (1978); Mason v. Bitton, 85 Wn.2d 321, 326, 534 P.2d 1360 (1975); Litts v. Pierce County, 5 Wn. App. 531, 536-37, 488 P.2d 785 (1971). See also W. Prosser, [235]*235Joint Torts and Several Liability, 25 Cal. L. Rev. 413 (1937); 1 F. Harper & F. James, The Law of Torts § 10.1 (1956); W. Prosser, Law of Torts § 52 (4th ed. 1971); 2 Restatement (Second) of Torts §§ 434(2), 439 (1965). In the case of multiple tort-feasors the principle is the same. That is, each multiple tort-feasor is personally liable for any injury for which his tortious act is a proximate cause. See W. Prosser, Law of Torts §§ 46, 47; 1 F. Harper & F. James, The Law of Torts § 10.0.

Multiple tort-feasors are often characterized as "joint", "concurrent", or "successive" when differentiating between the type of harm caused and the nature of the duty owed. Joint tort-feasors are those who have acted in common or who have breached a joint duty. White Pass Co. v. St. John, 71 Wn.2d 156, 158, 427 P.2d 398 (1967); Young v. Dille, 127 Wash. 398, 404, 220 P. 782 (1923); 1 F. Harper & F. James, The Law of Torts § 10.1. Concurrent tort-feasors are those whose independent acts concur to produce the injury. See Boeing Co. v. State, supra at 448; Mason v. Bitton, supra at 326; Litts v. Pierce County, supra at 534-37. Significantly, the harm caused by both joint and concurrent tort-feasors is indivisible. The distinguishing factor between these types of tort-feasors is the duty breached. Joint tort-feasors breach a joint duty whereas concurrent tort-feasors breach separate duties.3

Since the harm caused by both joint and concurrent tortfeasors is indivisible, similar liability attaches. We have long held that such tort-feasors are each liable for the entire harm caused and the injured party may sue one or all to obtain full recovery. While respondent correctly notes that such liability at common law applies only to joint tort[236]*236feasors, the indivisible nature of the harm caused by both of these tort-feasors requires, at a minimum, that each be wholly responsible for the entire harm caused.

While the indivisibility of the harm caused warrants imposition of entire liability upon those tort-feasors, sound policy reasons also support application of the procedural, or several, aspect of the liability rule. The cornerstone of tort law is the assurance of full compensation to the injured party. To attain this goal, the procedural aspect of our rule permits the injured party to seek full recovery from any one or all of such tort-feasors.

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Cite This Page — Counsel Stack

Bluebook (online)
588 P.2d 1308, 91 Wash. 2d 230, 1978 Wash. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seattle-first-national-bank-v-shoreline-concrete-co-wash-1978.