Recently, in Spencer v. Johnson, 2021 PA Super 48 (Mar. 18, 2021), the Pennsylvania Superior Court altered the legal landscape of tort law in limiting the reach of Pennsylvania’s Fair Share Act. A two-judge panel held an employee and employer jointly and severally liable for the entirety of an almost $13 million judgment stemming from a motor vehicle accident.
Pennsylvania’s Fair Share Act, which was enacted in 2011, dictates that a defendant can only be monetarily responsible for whatever percentage of liability was assigned to that defendant in a suit with multiple tortfeasors, up to 60%. For example, if defendant A was found to be 30% liable in a matter where the total damages were $100,000, then defendant A would only be responsible for $30,000, or 30%, of the total judgment. However, the Act provides an exception that if a defendant is found to be 60% or more liable, that defendant then would be responsible jointly and severally for satisfying the entire amount of the judgment. Using the earlier example, if defendant A was assigned liability in the amount of 70%, defendant A then would be responsible for the entire $100,000 verdict.
In Spencer, plaintiff, Keith Spencer (“Mr. Spencer”), sustained serious injuries when he was struck by defendant, Cleveland Johnson (“Mr. Johnson”), while crossing the street. Mr. Johnson was under the influence at the time, and he was driving a vehicle owned by his spouse’s employer, the Philadelphia Joint Board Workers United (“PJBWU”). The vehicle was provided to his spouse, Tina Johnson (“Ms. Johnson”), by PJBWU for her use in he course and scope of her work with PJBWU. In 2016, Mr. Spencer filed a complaint in the Court of Common Pleas of Philadelphia County, against Mr. Johnson for his negligence in use of the vehicle on the day of the incident, Ms. Johnson for allowing her husband to use the vehicle, and PJBWU for providing Ms. Johnson the vehicle.
In 2019, a jury found all three defendants liable and awarded damages in the amount of approximately $13 million. The jury held Mr. Johnson 36% liable, Ms. Johnson 19% liable, and PJBWU 45% liable. Post-trial, Mr. Spencer requested the trial court to join Ms. Johnson’s liability to PJBWU because Ms. Johnson was an employee of the company, and apply the 60% or more exception under the Fair Share Act. The trial court denied the request. Mr. Spencer appealed the decision to the Superior Court.
In its ruling, the Superior Court held that Ms. Johnson was acting within the scope of her employment when Mr. Johnson used the vehicle belonging to PJBWU and, as a result, PJBWU was vicariously liable for the negligent act. The Court also ruled that Ms. Johnson’s liability could be imputed onto PJBWU’s liability, thus putting the company’s liability over 60%, triggering the Fair Share Act exception. As a result, now PJBWU would be responsible for satisfying the entirety of the almost $13 million judgment.
Although much of the Superior Court’s opinion was filled with dicta in respect to the Fair Share Act, including part of the opinion that appears to suggest that the Fair Share Act does not apply unless there is a finding that the plaintiff was comparatively negligent. However, if the Superior Court’s decision appears to revert back to the pre-2011 framework of joint and several liability, which would, in turn, potentially have widespread negative implications on defendants in tort litigation, especially those with the ability to pay. As of April 6, 2021, more than a dozen defense bar organizations have urged the Pennsylvania Superior Court to grant an en banc rehearing on the matter.
For additional questions, please contact Conrad James Benedetto, Esq. and/or Zyta Zegar, Esq.
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