The Burden On Apportionment Of Damages Shifts To The Defendant Where Two Separate Accidents Cause An Inseparable Injury

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The Plaintiff usually has the burden to prove that the Defendant was negligent and that the Defendant’s negligence caused him injury.  However, in cases where two accidents happen so close together that one cannot tell which accident caused which injury, what is a Plaintiff to do?  This was the question posed to the Nevada Supreme Court in the case of Kleitz v. Raskin, 103 Nev. 325, 728 P.2d 508 (1987). In Kleitz, the Plaintiff sustained injury in two successive automobile accidents, one December 23, 1981 and a second on January 25, 1982.

Plaintiff Kleitz sued both tortfeasors.  He settled with the first Defendant.  The Defendant in the 
second accident then filed a Motion for Summary Judgment, arguing that since the IME doctor had testified that Plaintiff’s condition remained unchanged between the first and second accidents, that Plaintiff would not be able to sustain the burden of proof regarding which accident had caused the injury.

On the other hand, Plaintiff Kleitz’s doctor argued that the Plaintiff had suffered injury in both accidents and each accident contributed to the one injury that the doctor was treating.  The trial Court granted Defendant’s Motion for Summary Judgment finding that Plaintiff would not be able sustain his burden of proof at trial.

The Nevada Supreme Court reversed the trial court’s decision.  Following the rule stated in Phennah v. Whalen, 621 P.2d 1304 (Wash.Ct.App. 1980) and in the Restatement (Second) of Torts §433B(2), the Supreme Court found that where a Plaintiff can show that both accidents contributed to his injury but can’t apportion the damages, then the burden of proof as to apportionment shifts to the Defendant.  The court quoted the applicable section of the Restatement as follows:

The Restatement (Second) of Torts § 433B (1965) provides:
Burden of Proof.
(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.
(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

103 Nev. 328, fn.1.  The Supreme Court went on to hold that if the Defendant fails to meet this burden, that Defendant is jointly and severally liable for the entirety of the plaintiff’s damages. If trier of fact finds that it cannot apportion damages then it is incumbent on the court to apply a credit in the amount that the first Defendant paid in settlement as an offset to the unapportioned verdict.