TEGMAN TODAY Darcy Covert Stritmatter Law, University of Washington School of Law 1
OUTLINE The Tegman Doctrine Recent Cases Case Study: Hochhalter v. State (King County Superior Court) Practical Takeaways
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Tegman 3
THE TEGMAN DOCTRINE
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THE TEGMAN PROBLEM RCW 4.22.070: “fault” must be apportioned across all entities that caused plaintiff’s damages, and those parties are generally jointly and severally liable for all damages caused by that “fault” if the plaintiff is fault-free. “Fault” = acts or omissions that are negligent or reckless What about damages caused by intentional acts or omissions? 5
Welch v. Southland Corp., 134 Wn.2d 629 (1988) Convenience store robbery. One defendant (convenience store), one negligence claim. Holding: The damages resulting from negligence must be segregated from those resulting solely from intentional acts or omissions. Fault is not apportioned between negligent and intentional tortfeasors. 6
Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102 (2003) Negligence, malpractice, fraud, etc. related to representation in MVA case. Multiple defendants, multiple negligent and intentional torts. Holding: The negligent defendants are jointly and severally liable only for the damages resulting from their negligence. They are not jointly and severally liable for damages caused by intentional acts of others. 7
WELCH & TEGMAN Suit against one negligent tortfeasor no issue of joint and several liability akin to Welch Suit against at least one negligent tortfeasor and at least one intentional tortfeasor joint and several liability is at issue akin to Tegman
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COMMON SCENARIOS IMPLICATING WELCH & TEGMAN Client was abused while in government care Client was abused outside government care, but government didn’t respond as required Police didn’t arrest someone, that person then harmed client Someone intentionally hurt client using product purchased from company Someone intentionally hurt client and law enforcement or medical aid didn’t respond as required 9
RECENT CASES
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Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Two bus passengers assaulted by unknown riders sued King County Metro Transit, alleging it neglected its duties as a common carrier in failing to maintain a safe environment. Plaintiffs did not sue the intentional tortfeasors. Akin to Welch 11
Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Issue #1 Was the trial court required to instruct the jury that the plaintiff bore the burden of proving the percentage of damages caused by the defendant’s negligent conduct and the percentage of damages caused by the unnamed assailants’ intentional conduct?
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Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Trial court’s segregation instruction: In calculating a damage award, you must not include any damages that were caused by acts of the unknown assailants and not proximately caused by negligence of the defendant. Any damages caused solely by the unknown assailants and not proximately caused by negligence of defendant King County must be segregated from and not made a part of any damage award against King County. 13
Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Holding #1 The instruction “accurately stated the law and allowed [the defendant] to argue its theory of the case.” And “[t]he court placed no burden of segregation upon the defendant.”
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Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Issue #2 Should the trial court have given a special verdict form requiring the jury to calculate the percentage of damages caused by the defendant’s negligent conduct and the percentage of damages caused by the unnamed assailants’ intentional conduct?
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Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) Holding #2 Here and in Welch, plaintiffs sought recovery only for damages proximately caused by the defendant’s negligence. In neither case was there a risk that the negligent defendant would be held liable for the assailants’ “share” of the damages, so there was no need for the jury to determine the size of that share or to deduct it from its damages award. Recognized that Judge Martinez put intentional tortfeasor on special verdict form in R.K. v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, No. C04-2338RSM, 2006 WL 3486798, at *1 (W.D. Wash. Dec. 1, 2006), aff’d sub nom. Fleming v. Church of Latter Day Saints, 275 F. App’x 626 (9th Cir. 2008). 17
Rollins v. King County Metro Transit, 148 Wn. App. 370 (Div. 1 2009) How to instruct on damages will often depend upon the circumstances of the case, which is one reason for the discretion invested in the trial judge. Here, the practical question was how to focus the jury upon the damages caused by the negligent defendant. The instructions accomplished that and properly stated the law. The court did not abuse its discretion. (footnote omitted) 18
Tisdale v. Apro LLC, 25 Wn. App. 2d 47 (Div. 2 2022) Sablan was in the process of robbing convenience store APRO when Tisdale went inside. When Sablan left, he rummaged through Tisdale’s car in the parking lot. Tisdale confronted Sablan, and Sablan assaulted Tisdale then left with his car. Tisdale did not sue Sablan. Akin to Welch
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Tisdale v. Apro LLC, 25 Wn. App. 2d 47 (Div. 2 2022) The trial court gave: WPI 15.04: injuries can have multiple proximate causes, and the jury should find for APRO “if you find that the sole proximate cause of injury or damage to the plaintiff was the act of some other person who is not a party to this lawsuit.” WPI 30.02.01: if the jury finds for Tisdale, “then you must first determine the amount of money required to reasonably and fairly compensate the plaintiff for the total amount of such damages as you find were proximately caused by the negligence of [APRO], apart from any consideration of contributory negligence.” 20
Tisdale v. Apro LLC, 25 Wn. App. 2d 47 (Div. 2 2022) The trial court gave no segregation instruction, i.e., no instruction specifying jury couldn’t find APRO liable for acts of Sablan. The special verdict form required the jury to determine Tisdale’s “total damages” and then used language that required apportionment between APRO and Tisdale alone, requiring their percentages to equal 100%. 21
Tisdale v. Apro LLC, 25 Wn. App. 2d 47 (Div. 2 2022) No mention of damages caused by Sablan in jury instructions or special verdict form, and special verdict form suggests APRO negligence + Tisdale negligence = 100% of damages. “Without the required segregation of damages instruction, the jury may have believed that it could hold APRO liable for all of Tisdale’s damages, even those that it may have found were caused solely by Sablan.” 22
Tisdale v. Apro LLC, 25 Wn. App. 2d 47 (Div. 2 2022) It was legal error for the trial court to decline to give a Rollins instruction on segregating damages when the case involved a negligent defendant and a nonparty intentional tortfeasor. And collectively, the lack of a Rollins instruction, the sustained objection regarding segregation during closing, and the special verdict form were both misleading and prejudicial.
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WHERE DOES THAT LEAVE US? The trial court must give a Rollins instruction telling the jury that it must segregate damages caused by negligent tortfeasors from damages caused by intentional tortfeasors. The trial court likely has discretion over whether to include the intentional tortfeasor on the special verdict form, so long as the special verdict form accurately states the law, i.e., does not direct the jury to apportion “total damages” between only negligent tortfeasors. 24
CASE STUDY Hochhalter v. State
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FACTS Two plaintiffs in foster care, placed in foster home at issue in late 1970s/early 1980s. Before being licensed as foster home, foster father had a long history of seeking out positions of authority over young boys (swim coach) to sexually abuse those boys. One former employer compiled letters documenting this. Foster father had been arrested for luring young boys to his house and abusing them and done a deferred sentence. Foster father sexually abused both plaintiffs throughout placements. 26
FACTS While first plaintiff was in home, told multiple caseworkers that he wanted a new placement. DSHS placed second plaintiff in the home without speaking with the first plaintiff. DSHS did not do home checks before or after placing plaintiffs as required by policy. DSHS conducted almost no visits while either plaintiff was there, contrary to policy. After first plaintiff ran away, DSHS did not speak with either plaintiff. 27
FACTS Second plaintiff eventually admitted to a friend that foster father was sexually abusing him. Law enforcement interviewed both plaintiffs once. Pierce County charged the foster father with child sexual abuse, but no one ever told the plaintiffs about the criminal charges.
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LITIGATION We didn’t sue the foster father, who has since accrued many convictions for sexually abusing children. The foster father (currently facing new child sex abuse charges) ignored our deposition subpoena. We didn’t ask the court to enforce it. Defense never sought to depose him or call him as a witness at trial.
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TRIAL Plaintiffs’ theory: Had DSHS properly investigated the foster father before licensing him, it would have never licensed him. Had DSHS properly monitored the foster placements, it would have removed the first plaintiff from the home and never placed the second one there or at least removed the second one after the first ran away. State’s theory: DSHS mostly followed its own policies (standard of care) and, where it didn’t, the foster father would have evaded detection even if it had followed its own policies because he was extremely manipulative and successfully hid his abusive behavior from his family and community.
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MAIN QUESTION FOR THE JURY How much of the damages to each plaintiff were caused solely by the foster father’s intentional acts, and how much of the damages were caused, at least in part, by the State’s negligence? In other words, how much of the damages could the State have prevented if had acted as required by the standard of care, and how much of the damages would have occurred even if the State had been diligent? 32
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PRACTICAL TAKEAWAYS
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WHETHER THE NEGLIGENT DEFENDANT IS LIABLE FOR THE INTENTIONAL TORTFEASOR’S ACTIONS If so, you may be able to avoid this problem altogether. Consider: Vicarious liability Indemnification Non-delegable duties Agency 36
WHETHER TO SUE THE INTENTIONAL TORTFEASOR In most cases, the defense won’t be able to bring them in using CR 14 (impleader) or CR 19 (necessary parties). Consider: Assets Adverse vs. similar interests of defendants Impression intentional tortfeasor is likely to make on jury How jury is likely to feel about missing intentional tortfeasor Focus group it 37
WHETHER TO CALL THE INTENTIONAL TORTFEASOR AT TRIAL Any party can subpoena the intentional tortfeasor under CR 45 and pursue enforcement through the court. Consider: What testimony you would want from the intentional tortfeasor and whether you can get it a different way Whether the intentional tortfeasor has a Fifth Amendment right Must have reasonable cause to apprehend danger from a direct answer Question-by-question analysis
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THE CAUSAL CHAIN Any damages caused solely by the intentional tortfeasor and not proximately caused by the negligence of the defendant must be segregated from and not made a part of any damage award against the negligent defendant. Consider: Timing/ordering Opportunity Knowledge But-for causation 39
THE CAUSAL CHAIN You need the second paragraph of the proximate cause instruction. WPI 15.01 Proximate Cause—Definition The term “proximate cause” means a cause which in a direct sequence [unbroken by any superseding cause,] produces the [injury] [event] complained of and without which such [injury] [event] would not have happened. [There may be more than one proximate cause of an [injury] [event].] 40
WHO IS ON THE VERDICT FORM If the intentional tortfeasor isn’t a party, are they included on the verdict form? Under Rollins and Tisdale, the trial court has discretion to decide—as long as it also gives a segregation instruction. “How to instruct on damages will often depend upon the circumstances of the case . . . .” 41
ORDER OF ENTITIES AND QUESTIONS ON THE VERDICT FORM Not specific to Tegman, but an interesting issue that came up in Hochhalter v. State. Do you want defenses at the beginning or the end of the special verdict form? Consider: Likely influence on jury Potential appellate issues 42
CONTACT INFORMATION Darcy Covert darcy@stritmatter.com (206) 281-5514
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