Prop. 51 Foes Say It Will Also Cut Safety Incentives

If Californians approve Proposition 51, the “deep pockets” initiative on the June 3 ballot, they will be removing a crucial incentive for companies and local governments to protect the public from injury accidents, attorneys opposed to the measure argue.

They say, for example, that blame for an injury accident at a city-owned playground could be spread around if the initiative passes, and thus diminish the city’s interest in maintaining a safe facility and safe equipment.

“The only thing that talks is money. If a manufacturer or a city is only going to be held (responsible) for $5,000, they are not going to be as concerned as if they can be tagged for $250,000,” said proposition opponent Larry Feldman, past president of the Los Angeles Trial Lawyers Assn.

Feldman and his colleagues have a personal stake in the outcome of the measure, because it could affect their contingency fees.

Those favoring the initiative, including government lawyers, say the proposition poses no threat whatever to the deterrent factor against inadequate safety measures and could offer an even greater safety incentive by making each defendant fully accountable for his own behavior.

Fully Responsible

Under present law, the wealthier or best insured of two or more co-defendants on the losing end of a personal injury lawsuit could be made to pay all damages due, even if only marginally to blame. If the other defendants have no funds--an uninsured driver in an injury accident, for example--the historic legal doctrine of “joint and several liability” requires the “deep pockets” defendant to pay all of the jury award.

Under Proposition 51, a well-funded defendant’s obligations could be reduced. In the non-economic “pain-and-suffering” category of damages, defendants would pay injured parties only to the extent of their fault--$40,000 of a $100,000 verdict, for example, if the jury found that defendant 40% liable.

The wealthy defendant would remain fully responsible for all economic damages assessed, such as medical expenses or lost wages.

Robert B. Steinberg, former president of the California Trial Lawyers Assn., the lead group opposing the measure, said the current system has traditionally forced companies to provide safer working conditions and products. However, abandoning joint and several liability, he said, would relax the deterrent effect against many defendants, particularly those in toxic injury cases.

He won strong agreement from Harvey Rosenfield, attorney and spokesman for the Ralph Nader-related Citizens Against Proposition 51, and from San Francisco attorney Weyman I. Lundquist, who represents both plaintiffs and defendants. Lundquist opposes the measure because he sees no factual basis for eliminating joint and several liability.

“If you have a number of people who are polluting at a waste site, now you can look to everybody who is in there as having a financial responsibility for the whole cleanup. So they all kind of police each other,” Lundquist said. “But if each one can get off for only the share it’s proved they contributed, they will be less concerned about policing.”

Lawrence P. Grassini, veteran Los Angeles lawyer for various injury victims who is staunchly opposed to the measure, said abandoning joint and several liability in lucrative non-economic damages would ease safety incentives for both private companies and local governments and could increase, rather than lessen, government litigation costs.

He offered examples from his own recent cases:

- A worker who lost the use of two fingers because a generator fan lacked an appropriate guard device won $969,000, mostly for his pain and suffering and altered life style.

The defendant manufacturer has now placed fan guards on its generators. However, under Proposition 51, Grassini said, the manufacturer could countersue subcontractors of the engine or other parts, in an effort to spread the blame. He said the manufacturer could also forgo the expense of attaching fan guards, because in the event of future accidents, the manufacturer would not be stuck with the total verdict.

- The family of a motorist killed when a negligent driver ran a stop sign obscured by a Los Angeles city tree won $650,000.

The city trimmed that and other trees within 20 feet of stop signs. Under Proposition 51, Grassini said, the city would countersue the allegedly drunk and speeding driver and nearby homeowners who might have some responsibility for the tree, lengthening the trial and increasing taxpayers’ litigation costs. He predicted the city would also be far less motivated to improve its tree-trimming program.

- The orphaned son of a 28-year-old man killed when the cruise control on his General Motors car malfunctioned, propelling him off the road, won $700,000.

The manufacturer installed an on-off switch in all its cars with cruise control, correcting the problem. Under Proposition 51, Grassini speculated, the manufacturer would have avoided the somewhat expensive alteration, choosing to countersue the county for improper road signs in an attempt to share the damages.

“Cities and counties will be brought in on more cases,” Grassini insisted, “because any defendant who realizes he is responsible for an accident will look for ways to try to spread the responsibility. Now he doesn’t bother, because he would probably have to pay the whole thing anyway.”

However, Peter Krichman, senior assistant Los Angeles County counsel, scoffed at the idea that Proposition 51 would mean more suits for the county to defend or that it would encourage county lawyers to sue more cross-defendants.

Public Entities

“Just record laughter as my response,” he said. “Plaintiffs’ attorneys already join (include) public entities in every suit they can. We are there. The argument is specious. And we have no viable cross-defendants. Why bother suing an uninsured driver?”

Krichman agreed with his City of Los Angeles counterpart, John Neville, chief of the city attorney’s civil liability division, that Proposition 51 will in no way lessen the very real deterrent that damage awards have for local government.

“Certainly any kind of a large settlement or judgment makes the involved department focus in on the reasons. But the size of the judgment doesn’t dictate any closer look,” Neville said. “If it’s $200,000 or $800,000, the $200,000 judgment would be looked at very closely and corrective action would be taken.”

One major deterrent factor, Neville noted, is that any damage award gives the city formal legal notice to correct a problem. If no action is taken, the city will be hit harder in subsequent cases over the same safety hazard.

Neville said he chooses to not say whether he favors passage of Proposition 51, which his boss, Mayor Tom Bradley, says he is against.

Injury Cases

“I just don’t think removal of joint and several liability in non-economic damages will make the deterrent disappear,” Krichman said. “For one thing, economic damages in these big injury cases are very substantial, so the county would be looked upon for all those. Certainly government responds to all liability verdicts. It would be unrealistic not to.”

Their view was partially supported by a recent case that Feldman is appealing. A judge dismissed civil charges against Los Angeles County by quadriplegic Ralph Geffen, who broke his neck six years ago diving into the surf at the southern end of Santa Monica Beach. The county posted warning signs in the area, after the suit was filed, indicating that mere initiation of litigation may serve as a deterrent, as much as a final verdict.

Feldman accepted pretrial settlements of $100,000 from Santa Monica and $50,000 from the state of California in the Geffen case but said he would not do so under Proposition 51. Unsure how much liability a jury would assess each government, he said he would take all three defendants to trial, increasing their litigation fees if not ultimate damages.

Amount of Fault

A leading advocate for passage of the initiative, Fred Hiestand, general counsel of the Assn. for California Tort Reform, argues that Proposition 51 could provide even stronger deterrence from sacrificing safety for savings by exposing all defendants to paying damages according to their amount of fault.

“Joint and several liability is over-Draconian deterrence, because it makes you pay for what somebody else did,” Hiestand said.

“The no-deterrence argument just doesn’t hold water,” he said. “You are accountable for your actions. This doesn’t take away accountability. It just says you don’t have to be accountable for something you didn’t do.”