By: Robert E. Lavoie
Since the inception of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.
Examples of cases where a plaintiff may be an innocent victim include cases where a plaintiff is a guest passenger in a vehicle involved in an accident, or cases where a plaintiff struck while walking in the crosswalk with the pedestrian light in his favor, or in claims involving plaintiffs who are the victims of negligent medical care while under anesthesia. As such, this dicta could come into play in a number of scenarios going forward.
In Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), the Pennsylvania Superior Court examined the Fair Share Act in “dicta.” The facts in Spencer involve an accident between a pedestrian and an unlicensed driver (husband) driving a company vehicle that was entrusted to an employee (wife) by her employer. There was a finding of negligence against the driver-husband in the amount of 36%, the driver’s wife in the amount of 19% and the driver’s wife’s employer in the amount of 45%.
The actual ruling of the Superior Court in Spencer is that the trial court should have molded the verdict against the employer-defendant because the jury likely separately found vicarious liability for wife and primary liability for employer based on the “general verdict rule.” The finding of vicarious liability for the wife made the employer liable for the entirety of the award because the Superior Court combined it with a finding of primary negligence by the employer. The Superior Court decided that the finding against the wife and the employer should be combined against the employer for a total share of 64% negligence. Therefore, the entirety of the award could be collected against the employer under the Fair Share Act as the wife’s and the employer’s share combined was over 60%.
But the Pennsylvania Superior Court in Spencer was apparently not finished with its opinion in the case before it. Rather, on a seemingly sua sponte basis, the appellate court went on to note, “assuming arguendo,” that is, assuming for the sake of argument, that a different set of hypothetical facts applied, the court would have gone on to decide additional issues that were not then before the court. In other words, the court was offering up dicta.
More specifically, the court in Spencer raised the hypothetical of a different situation, that being of a defendant employer who was found by the jury not to be vicariously liable for the actions of its employee such that those defendants were instead required to be treated separately. The court in Spencer noted in this dicta, that, under that different scenario (which was not before that court), the Fair Share Act would not have applied because, according to the Spencer court, the Fair Share Act only applied to cases in which the plaintiff’s comparative negligence was an issue in the case, that is, cases where the plaintiff was assessed a percentage of responsibility for causing his own accident. Stated otherwise, in its sua sponte dicta, the court in Spencer stated that the Fair Share Act was not applicable in cases involving innocent plaintiffs.
In response, this ruling will result in differing arguments from plaintiffs and defendants. Defense counsel will argue that since this was dicta and was not the decision in Spencer, it is not binding on trial courts. Plaintiffs’ attorneys will argue that it is the law. Plaintiffs may also argue that, even if it is not the technically law, it is a reasonable interpretation and application of the Fair Share Act because it is how the Superior Court interprets or will interpret the statute. It is also how the Superior Court will rule on the issue on appeal. Therefore, a trial court should interpret the statute the same way.
We have not yet seen whether the courts, directly faced with this issue, will validate the dicta of the Spencer court or, will leave the legislating to the legislature and rule that, if the General Assembly intended that the Fair Share Act not apply to innocent plaintiffs, then such an exception would have been specifically written into the act. Until such a ruling is made, the courts will likely see differing scenarios play out.