Vattimo v. Lower Bucks Hospital, Inc.

LARSEN, Justice,

concurring and dissenting.

[2] I join in Mr. Justice Flaherty’s affirmance of the Commonwealth Court’s opinion, but I dissent from Mr. Justice Flaherty’s reversal of that opinion.

I disagree with Mr. Justice Flaherty’s treatment of the Vattimos’ claim for reimbursement of attorneys’ fees expended in defending James in civil and criminal proceedings arising out of the incidents in this case.

First, I believe that the hospital had a duty to protect against this type of harm. Not only was the initiation of criminal proceedings against James the factual consequence of the hospital’s alleged failure to properly supervise and care for James, but it was also a foreseeable consequence of such conduct on the part of the hospital. See Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 41 , 301 A.2d 705, 708 (1973) (“Conduct is negligent if the harmful consequences could reasonably have been foreseen and prevented by the exercise of reasonable care.”).

*264 Nevertheless, the hospital argues that the criminal proceedings initiated against James were the consequence of the prosecutor’s decision-making process, rather than the “normal, natural or probable consequences of medical malpractice.” 1 This argument has no merit. Even though criminal proceedings were the result of a decision made by the prosecutor, it was still eminently foreseeable that an individual with a propensity for starting fires would be subject to criminal prosecution if the hospital failed to properly discharge its duty to supervise that individual.

In addition, I do not agree that James’ conduct acts as a bar to the recovery of legal fees.

Mr. Justice Flaherty relies upon an admission in the complaint that James played an “active part in the events which resulted in injury” to support its conclusion that James was an “active tortfeasor” and thus ineligible to receive indemnification. Mr. Justice Flaherty’s Opinion, slip op. at 14. However, a review of the case law supports the proposition that James is not an active tortfeasor, despite the facts that he admittedly started the fire and that he may be held civilly liable for the death of his roommate. 2 Long ago, this Court held that

“A person with a mental deficiency is civilly liable for his torts; he is liable to bear the consequences of his infirmity as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it”: Lancaster County National Bank v. Moore, 78 Pa. 407 , 21 AR 24 (1875); Wolf’s case, 195 Pa. 438 , 46 Atl. 72 (1900).

Priese v. Clement, 70 D. & C.2d 47, 63 (1974) (emphasis added). These cases reveal that the mentally deficient defendant is considered an innocent and not responsible for his *265 actions, and that he may be held legally liable not because he was negligent, but based upon the policy consideration that someone must bear the expenses of an innocent plaintiff’s injury and that it is more just to impose those expenses upon the person who, although without fault, caused the injury than upon the innocent plaintiff. In view of this policy, it would be a harsh result to regard James as an active tortfeasor for purposes of indemnity.

In addition, according to those authorities cited by the majority, the purpose of indemnity is

to prevent a result which is regarded as unjust or unsatisfactory. .. .

Thus it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer

It has been said that it is permitted only where the indemnitor has owed a duty of his own to the indemnitee; that it is based on a “great difference” in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff.... Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.

Prosser, The Law of Torts § 51 (4th ed.), quoted from Mr. Justice Flaherty’s Opinion, slip op. at 8-9 fn. 2. See also Builders Supply v. McCabe, 366 Pa. 322, 325-6, 328 , 77 A.2d 368, 370, 371 (1951), quoted from Mr. Justice Flaherty’s Opinion, slip op. at 13:

*266 The difference between primary and secondary liability ... depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.... [T]he important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only ....

All of the considerations mentioned in these authorities favor the allowance of indemnity in this case. James was not held criminally liable for his acts, and if he is held civilly liable it will be for policy reasons, not because he was at fault; any liability on the part of James will be imputed or constructive. The hospital clearly owed a duty to James to prevent him from carrying out precisely that action which he accomplished. In addition, there is a great difference in the degrees of fault of the hospital and James; the hospital was at fault to the extent it breached its duty to care for James, while James’ mental condition precludes him from being at fault at all. Finally, two basic tort policies—punishment and deterrence—will be well served if the hospital is held responsible for the foreseeable consequences of its actions; these policies will not be served at all if the responsibility is left with James’ parents, who did everything they could when they took James to the hospital before he had hurt anyone. In a case such as this, justice requires the shifting of responsibility from one tortfeasor to another.

I would hold that legal fees are recoverable in this case once liability and damages have been proven at trial, and thus I would affirm the order of the Commonwealth Court in its entirety.

. The hospital does not argue that it had no duty to protect James from the consequences of civil proceedings commenced against him.

. With respect to the criminal charges of murder and arson, James was found not guilty by reason of insanity. See Petition for Appointment of Guardian ad Litem, filed on August 2, 1978 with the Arbitration Panel for Health Care.