Williams v. Gragston , 7 Ohio App. 3d 369 ( 1982 )

I respectfully dissent. In my opinion, it was error to dismiss with prejudice the first tortfeasor's (Gragston's) cross-claim against the second tortfeasor (McDermott), because I believe that under certain circumstances, however remote in possibility, Gragston could demonstrate that he is entitled to relief under R.C. 2307.31 and 2307.32. Under such circumstances, it is error to dismiss the claim with prejudice. O'Brien v. UniversityCommunity Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O.2d 223].

The dismissal is based, not on evidence of what injury or injuries were caused by each tortfeasor and what was the relationship between those injuries, but on the broad and unsubstantiated allegations of the pleadings. The dismissal has the effect of precluding any recovery between the tortfeasors (whether the first against the second or vice versa) under any and all circumstances, simply because they were not concurrent tortfeasors. The wrongful acts in the instant case were wholly independent of one another, separated in time and space, but the injured party (Williams) claims that as the result of these separate acts, he received permanent injuries to his head, neck, back and other parts of his body. Any one part might have been twice injured. It is conceivable, by way of example, that the injuries to a leg are permanent and will result in seventy percent disability, i.e., twenty percent was caused by the first tort and fifty percent by the second tort. When the tortfeasors are joined in the same trial, the trier of the facts will in the usual trial be required to allocate the "proportionate share of the common liability," to quote from R.C. 2307.31(A), and if this is done properly, all claims of relief between the two tortfeasors will have been satisfied. There will be no right to contribution. But under the peculiar circumstances of a complex trial, the tactics of the parties or trial management by the court might defer that separation of liability to a later time. The right of contribution should be preserved. Indeed, R.C.2307.32(A) allows any defendant against whom a joint judgment has been entered for the "same injury" to move for contribution in that same action. The dismissal of the cross-claim in the instant case terminates all right of contribution if the torts are not "concurrent."

I would give effect to the language used by the legislature. The right of contribution was given to tortfeasors severally liable as well as those jointly liable. No requirement that the torts be "concurrent" is found in the statute. The "proportionate share of the common liability" is to be determined by considering relative degrees of fault, and no party can be compelled to contribute beyond his proportionate share of the common liability.

The phrase "same injury," in my opinion, is not limited to mean only a single trauma jointly and concurrently caused. It has a broader meaning, this being a statute that creates new rights of contribution previously denied under the common law. The phrase refers to the ultimate harm suffered by the injured party when caused by two or more torts, whether the torts were concurrent, joint, separate or independent. The purposes are to insure full recovery to the injured party and to divide the liability among the tortfeasors who caused that harm in accordance with their proportionate share of the common liability.