"[S]everal liability [is] triggered only upon a finding of negligence on the part of the plaintiff. . . . If a jury return[s] answers to interrogatories finding no negligence attributable to the plaintiff, then joint and several liability would lie."
How later courts described this case
- "[S]everal liability [is] triggered only upon a finding of negligence on the part of the plaintiff. . . . If a jury return[s] answers to interrogatories finding no negligence attributable to the plaintiff, then joint and several liability would lie."
- where statements made by the decedent, as sole owner and president of the incorporated defendant, were admitted by the plaintiff throughout trial as non-hearsay, pursuant to Evid.R. 801(D)(2)
- unreliable verdict due to defect in interrogatories “though not objected to, results in a manifest miscarriage of justice and, as such, constitutes plain error”
Written by the judges who cited it.
The opinion
Alice Robie Resnick, J.,
concurring in part and dissenting in part. I concur with the majority as to paragraphs one and two of the syllabus, but dissent as to paragraphs three and four, and would not remand this case for a new trial.
The plaintiff was not contributorily negligent in this case and therefore the trial court improperly applied the comparative negligence statute. Former R.C. 2315.19(A)(1) provided in pertinent part that “the contributory negligence of a person does not bar the person or his legal representative from recovering damages * * * if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons * * *.” Additionally, former R.C. 2315.19(C) provided in pertinent part that “the court shall diminish the total amount of damages recoverable by an amount that is proportionately equal to the percentage of negligence of the person bringing the action.” In each instance the words “bringing the action” are used. This, of course, refers to the plaintiff and has no application *40 to joint tortfeasors. Therefore, in this case, because Eberly, whose estate brought the action, was not contributorily negligent, comparative negligence had no application. Eberly was not found negligent, thus there was nothing to deduct from the total amount of damages. While under the facts of this case it was error for the trial court to apply the comparative negligence statute, it was harmless error since in Ohio we recognize joint and several liability among joint tortfeasors.
The jury found that the plaintiff was damaged in the sum of $1,000,000. There is no reason to remand this case for retrial, since the damages to Eberly should remain the same regardless of the identity of the tortfeasors. In other words, if this case had been tried without the application of the comparative negligence statute, A-P Controls would have been liable for the entire amount of damages. Barmet’s presence or absence should have no effect on this case and the amount of the plaintiff’s recovery.
R.C. 2307.31 and 2307.32 apply to and involve only joint tortfeasors. Plaintiff’s recovery should not be affected or be contingent upon a tortfeasor’s right of contribution. Upon obtaining a judgment, an innocent plaintiff should be able to proceed against any tortfeasor who has been found to have proximately caused his or her injuries for the entire amount of the judgment. The main purpose to be served is to make the plaintiff whole, not to assure that a joint tortfeasor has his or her right of contribution. The right of contribution involves only the joint tortfeasors and must be pursued by them separately and apart from the case involving an innocent plaintiff. Thus, in this case retrial is an unnecessary and futile act since the amount of damages awarded to plaintiff should remain the same. Accordingly, I would affirm the court of appeals.
Sweeney, J., concurs in the foregoing opinion.