Cramer v. Starr – 7/18/2016

July 29, 2016

Arizona Supreme Court holds that the original tortfeasor rule does not preclude a defendant from alleging and proving fault of a nonparty physician who treated the plaintiff for injuries allegedly sustained from the defendant’s tort.

The defendant rear-ended a car in which the plaintiff was a passenger.  After the collision, the plaintiff suffered back pain and sought treatment from a physician.  The physician recommended surgery, but the surgery failed to cure the plaintiff’s pain and may have exacerbated her condition.

The plaintiff sued the defendant in tort, and the defendant filed a notice naming the physician as a nonparty at fault.  The defendant moved to strike the notice, arguing that the defendant is liable for all foreseeable risks arising from the plaintiff’s alleged tort, including any subsequent medical negligence, under the original tortfeasor rule.

The Arizona Supreme Court noted that Arizona’s Uniform Contribution Among Tortfeasors Act (“UCATA”), A.R.S. §§ 12-2501 through -2509, requires apportionment of damages based on degrees of fault as determined by the trier of fact after considering the fault of all parties and all properly named nonparties.  The Court then rejected the original tortfeasor rule as stated in the Restatement (Second) of Torts § 457 to the extent it prevents apportionment of fault as required by the UCATA, but adopted the original tortfeasor rule as stated in the Restatement (Third) of Torts § 35 to the extent that it does not prevent apportionment of fault as required by the UCATA.

The Court therefore held that the defendant was entitled to file a notice of a nonparty at fault, but noted that the plaintiff could argue on remand that the defendant, as the original tortfeasor, shares all or some part of the responsibility for the plaintiff’s enhanced injury.

Vice Chief Justice Pelander authored the opinion of the Court, in which Chief Justice Bales, and Justices Brutinel, Timmer, and Bolick joined.