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TIA MARIE GLOMB v. JOHN AND MARIE GLOMB (09/10/87)

filed: September 10, 1987.

TIA MARIE GLOMB, A MINOR BY HER GUARDIAN AD LITEM, JOHN F. SALOPEK, APPELLEE,
v.
JOHN AND MARIE GLOMB, HUSBAND AND WIFE, APPELLANTS, V. SHERRY GINOSKY



Appeal from the Judgment in the Court of Common Pleas, Civil, of Beaver County, at No. 1049 of 1983.

COUNSEL

James D. Crawford, Philadelphia, for appellants.

Keith R. McMillen, Assistant District Attorney, Aliquippa, for appellee.

Cirillo, President Judge, and Rowley, Olszewski, Del Sole, Montemuro, Beck, Tamilia, Kelly and Popovich, JJ. Olszewski, J., files a concurring opinion.

Author: Montemuro

[ 366 Pa. Super. Page 209]

Appellants John and Marie Glomb challenge the denial of their post-trial motions. A jury found that the Glombs had negligently hired and retained appellee Sherry Ginosky to care for the Glombs' one-year-old daughter, appellee Tia Marie Glomb. Tia Marie, through her guardian ad litem, instituted this action against her parents, who in turn joined Ms. Ginosky as an additional defendant. We address two issues on appeal: (1) whether the trial court properly refused to allow the jury to apportion liability between the Glombs and Ms. Ginosky; and (2) whether the $1.5 million jury verdict in favor of Tia Marie was excessive. None of the Glombs' arguments on these issues convince us that we should disturb the judgment of the Beaver County Court of Common Pleas. We therefore affirm.

The evidence at trial established the following facts. Tia Marie is the only child of John and Marie Glomb. At the time of Tia Marie's birth, both John and Marie worked full-time. John's employment required him to travel away from home up to six days a week. Marie worked Monday through Friday from 7:00 in the morning until 5:30 or 6:00 in the evening. The Glombs therefore employed baby-sitters to provide in-home care for Tia Marie during the work week. Sometime during the summer of 1982, Tia Marie's second baby-sitter quit on short notice because of ill-health. In need of an immediate replacement, the Glombs hurriedly hired Sherry Ginosky at the beginning of August, 1982. Within two or three weeks, the Glombs began to notice problems. Small bruise marks appeared on Tia Marie's face and body. When asked about the marks, Ms. Ginosky would offer explanations that John Glomb found implausible. On one occasion, John observed that his daughter seemed afraid of Ms. Ginosky. After the Glombs discovered a large, hand-shaped bruise on Tia Marie's leg in late October of 1982, John threatened to discharge Ms. Ginosky if any more bruises appeared. Two days after this warning, however, Tia Marie suffered grave injuries to her face and head while in the care of Ms. Ginosky. The paramedics

[ 366 Pa. Super. Page 210]

    whom Ms. Ginosky summoned to the Glomb residence on the morning of November 3, 1982 found the child unconscious. Ms. Ginosky explained that Tia Marie had tripped over a toy and struck her head on a child's rocking chair. While unconscious, Tia Marie experienced periodic seizures during which she stopped breathing. Her face and head were severely bruised, and she remained in the hospital for nearly two weeks. Since her discharge from the hospital, Tia Marie has required extensive physical rehabilitation to remedy the effects of the brain damage she suffered. The parties agree that Sherry Ginosky intentionally inflicted these injuries upon her charge.

As a result of the November 3, 1982 incident, the court appointed a guardian ad litem for Tia Marie. The guardian filed a complaint on Tia Marie's behalf against John and Marie Glomb. The Glombs immediately joined Ms. Ginosky as a third party defendant. Following a trial at which Ms. Ginosky was neither present nor represented by counsel, the trial court directed the jury to find that Ms. Ginosky had "intentionally injured" Tia Marie and that the Glombs therefore "are entitled to indemnification" from Ms. Ginosky. The court refused, however, to instruct the jury on apportionment of liability between Ms. Ginosky and the Glombs. At sidebar, the court informed counsel that the Glombs could seek "indemnification" from Ms. Ginosky in a separate proceeding if the Glombs ultimately bore the burden of satisfying a judgment.*fn1 The jury returned with a $1.5 million verdict against both the Glombs and Ms. Ginosky, jointly and severally. The trial court denied the Glombs' motions for post-trial relief, and this timely appeal followed the entry of judgment. Although a three-judge panel of this court decided to affirm the judgment, we granted the Glombs' petition for reargument before the court en banc.

[ 366 Pa. Super. Page 211]

We will address first the question of whether the trial court properly refused to allow apportionment of liability in this case and second the question of whether the verdict was excessive.

I.

As this case clearly illustrates, a decision to impose "joint and several" liability upon multiple tort-feasors, rather than to "apportion" liability between them, can alter significantly the risks of tort litigation.*fn2 Imposition of joint and several liability enables the injured party to satisfy an entire judgment against any one tort-feasor, even if the wrongdoing of that tort-feasor contributed only a small part to the harm inflicted. Apportionment of liability, on the other hand, limits the liability of each tort-feasor to that portion of the harm which he or she caused. Thus, if the court imposes joint and several liability, and if only one of the joint tort-feasors is financially responsible, the injured party can attempt to recover the full measure of damages against that single source. The financially responsible tort-feasor who satisfies more than his or her equitable share of the joint liability then bears the risk of recovering the excess from his or her less responsible fellow tort-feasors. If, however, the court decides to apportion liability, the injured party bears the risk that the financial irresponsibility of one tort-feasor will defeat a complete recovery. See generally, W. Keeton & W. Prosser, Prosser and Keeton on Torts § 52 (5th ed. 1984). By asserting that the court should apportion liability, the Glombs seek to avoid the risk that Ms. Ginosky, their fellow tort-feasor, will lack the resources to satisfy her share of the $1.5 million verdict.

[ 366 Pa. Super. Page 212]

A court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify "a reasonable basis for determining the contribution of each cause to a single harm." Restatement (Second) of Torts § 433A(1) (1965). See Martin v. Owens-Corning Fiberglass Corp., 515 Pa. 377, 528 A.2d 947 (1987); Wade v. S.J. Groves & Sons Co., 283 Pa. Super. 464, 424 A.2d 902 (1981). In the present case, the parties agree that Tia Marie has suffered a single harm. The availability of apportionment therefore hinges upon whether the party who seeks it can demonstrate some logical, reasonable or practical basis for assigning discrete portions of the over-all liability to discrete causes. See Martin v. Owens-Corning Fiberglass Corp., supra; Bryant v. Girard Bank, 358 Pa. Super. 335, 517 A.2d 968 (1986); Capone v. Donovan, 332 Pa. Super. 185, 480 A.2d 1249 (1984); Wade v. S.J. Groves & Sons Co., supra; Restatement (Second) of Torts § 433A comment d and § 433B(2); W. Keeton & W. Prosser, supra at § 52. Determining whether a "logical, reasonable or practical" basis for apportionment exists necessarily requires the court to consider the unique circumstances of each case. Although most single personal injuries defy objective apportionment, see Capone v. Donovan, supra, 332 Pa. Superior Ct. at 189, 480 A.2d at 1251, we should not allow one party to bear an entire liability if the particular facts of the case will support a reasonable alternative. On the other hand, we cannot allow an arbitrary apportionment merely to avoid imposition of entire liability. A court should not limit the innocent plaintiff's ability to recover the full measure of damages unless the court has some reasonable basis for doing so. See Restatement (Second) of Torts § 433A comments h and i.*fn3

[ 366 Pa. Super. Page 213]

As the Glombs correctly observe, this court in Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381 (1982), identified seven "factors" that courts often consider in determining whether liability is apportionable:

     the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiff; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential[;] responsibility of the defendants for the same injuria as distinguished from damnum.

[ 366 Pa. Super. Page 214]

Voyles, supra, 295 Pa. Superior Ct. at 130-131, 441 A.2d at 383 (quoting W. Prosser, Law of Torts § 46 n. 2 (4th ed. 1971)). See also Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432 (1985). The Glombs suggest that the trial court in the present case should have considered these "factors" in determining whether to allow apportionment. The Glombs further suggest that if the court had applied this multipronged "test" supposedly established by Voyles, it would have allowed the jury to apportion liability between the defendants and the additional defendant. The Voyles court, however, did not intend to establish a single, cumulative "test" of apportionability. Nor did it intend to establish an exhaustive list of independent "tests." The determination of whether to allow apportionment is entirely a practical inquiry into the circumstances of each case. In some cases, reference to one or more of the Voyles factors might aid the inquiry. See, e.g., Harka v. Nabati, supra (court considered differences between duties that each defendant owed to plaintiff, differences between causes of action asserted against each defendant and differences in evidence that plaintiff would use against each defendant to determine that causes of injury were apportionable); Lasprogata Page 214} v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979) (court considered difference in time between each defendant's negligent act and differences between duties that each defendant owed to plaintiff to determine that causes were apportionable). In other cases, the Voyles "factors" will not help the court to determine whether a "logical, reasonable or practical" basis for apportionment exists. See, e.g., Martin v. Owens-Corning Fiberglass Corp., supra (court cited Voyles but refused apportionment because jury could only "roughly approximate" from expert ...


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