PRINTER'S NO. 139
No. 138 Session of 2005
INTRODUCED BY TURZAI, ARMSTRONG, BALDWIN, BENNINGHOFF, BIRMELIN,
BOYD, CAPPELLI, CLYMER, CRAHALLA, CREIGHTON, DALLY,
DENLINGER, FAIRCHILD, FLICK, FORCIER, FRANKEL, GABIG,
GILLESPIE, GINGRICH, GODSHALL, GRELL, HARRIS, HERSHEY,
HICKERNELL, HUTCHINSON, KAUFFMAN, KILLION, LEH, MAHER, MANN,
McGILL, McILHATTAN, McILHINNEY, R. MILLER, S. MILLER, MUSTIO,
NAILOR, O'NEILL, PETRI, PHILLIPS, PICKETT, REED, REICHLEY,
ROHRER, ROSS, RUBLEY, SATHER, SAYLOR, SCHRODER, SEMMEL,
STEIL, STERN, R. STEVENSON, T. STEVENSON, E. Z. TAYLOR, TRUE,
WATSON, WILT, WRIGHT, FLEAGLE, MARSICO, NICKOL AND SCAVELLO,
JANUARY 31, 2005
REFERRED TO COMMITTEE ON STATE GOVERNMENT, JANUARY 31, 2005
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, reenacting provisions
3 relating to comparative negligence; and making a repeal.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Section 7102(b) of Title 42 of the Pennsylvania
7 Consolidated Statutes is repealed and subsections (b.1), (b.2),
8 (c)(2), (c.1) and (d) are reenacted to read:
9 § 7102. Comparative negligence.
10 * * *
11 (b.1) Recovery against joint defendant; contribution.--
12 (1) Where recovery is allowed against more than one
13 person, including actions for strict liability, and where
14 liability is attributed to more than one defendant, each
1 defendant shall be liable for that proportion of the total
2 dollar amount awarded as damages in the ratio of the amount
3 of that defendant's liability to the amount of liability
4 attributed to all defendants and other persons to whom
5 liability is apportioned under subsection (b.2).
6 (2) Except as set forth in paragraph (3), a defendant's
7 liability shall be several and not joint, and the court shall
8 enter a separate and several judgment in favor of the
9 plaintiff and against each defendant for the apportioned
10 amount of that defendant's liability.
11 (3) A defendant's liability in any of the following
12 actions shall be joint and several, and the court shall enter
13 a joint and several judgment in favor of the plaintiff and
14 against the defendant for the total dollar amount awarded as
15 damages:
16 (i) Intentional misrepresentation.
17 (ii) An intentional tort.
18 (iii) Where a defendant has been held liable for not
19 less than 60% of the total liability apportioned to all
20 parties.
21 (iv) A release or threatened release of a hazardous
22 substance under section 702 of the act of October 18,
23 1988 (P.L.756, No.108), known as the Hazardous Sites
24 Cleanup Act.
25 (v) A civil action in which a defendant has violated
26 section 497 of the act of April 12, 1951 (P.L.90, No.21),
27 known as the Liquor Code.
28 (4) Where a defendant has been held jointly and
29 severally liable under this subsection and discharges by
30 payment more than that defendant's proportionate share of the
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1 total liability, that defendant is entitled to recover
2 contribution from defendants who have paid less than their
3 proportionate share. Further, in any case, any defendant may
4 recover from any other person all or a portion of the damages
5 assessed that defendant pursuant to the terms of a
6 contractual agreement.
7 (b.2) Apportionment of responsibility among certain
8 nonparties and effect.--For purposes of apportioning liability
9 only, the question of liability of any defendant or other person
10 who has entered into a release with the plaintiff with respect
11 to the action and who is not a party shall be transmitted to the
12 trier of fact upon appropriate requests and proofs by any party.
13 A person whose liability may be determined pursuant to this
14 section does not include an employer to the extent that the
15 employer is granted immunity from liability or suit pursuant to
16 the act of June 2, 1915 (P.L.736, No.338), known as the Workers'
17 Compensation Act. An attribution of responsibility to any person
18 or entity as provided in this subsection shall not be admissible
19 or relied upon in any other action or proceeding for any
20 purpose. Nothing in this section shall affect the admissibility
21 or nonadmissibility of evidence regarding releases, settlements,
22 offers to compromise or compromises as set forth in the
23 Pennsylvania Rules of Evidence. Nothing in this section shall
24 affect the rules of joinder of parties as set forth in the
25 Pennsylvania Rules of Civil Procedure.
26 (c) Downhill skiing.--
27 * * *
28 (2) The doctrine of voluntary assumption of risk as it
29 applies to downhill skiing injuries and damages is not
30 modified by subsections (a) and (b.1).
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1 (c.1) Savings provisions.--Nothing in this section shall be
2 construed in any way to create, abolish or modify a cause of
3 action or to limit a party's right to join another potentially
4 responsible party.
5 (d) Definitions.--As used in this section the following
6 words and phrases shall have the meanings given to them in this
7 subsection:
8 "Defendant or defendants." Includes impleaded defendants.
9 "Off-road vehicle." A motorized vehicle that is used off-
10 road for sport or recreation. The term includes snowmobiles,
11 all-terrain vehicles, motorcycles and four-wheel drive vehicles.
12 "Off-road vehicle riding area." Any area or facility
13 providing recreational activities for off-road vehicles.
14 "Off-road vehicle riding area operator." A person or
15 organization owning or having operational responsibility for any
16 off-road vehicle riding area. The term includes:
17 (1) Agencies and political subdivisions of this
18 Commonwealth.
19 (2) Authorities created by political subdivisions.
20 (3) Private companies.
21 "Plaintiff." Includes counter claimants and cross-claimants.
22 Section 2. Nothing in the repeal of 42 Pa.C.S. § 7102(b), in
23 the reenactment of 42 Pa.C.S. § 7102(b.1), (b.2), (c)(2), (c.1)
24 and (d) or in the act of June 19, 2002 (P.L.394, No.57),
25 entitled "An act amending Title 42 (Judiciary and Judicial
26 Procedure) of the Pennsylvania Consolidated Statutes, providing
27 for DNA testing of certain offenders; reestablishing the State
28 DNA Data Base and the State DNA Data Bank; further providing for
29 duties of the Pennsylvania State Police; imposing costs on
30 certain offenders; reestablishing the DNA Detection Fund;
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1 further providing for the apportionment of liability and
2 damages; imposing penalties; and making a repeal," shall be
3 construed to diminish the immunity of an employer to the extent
4 that the employer is granted immunity from liability or suit
5 pursuant to the act of June 2, 1915 (P.L.736, No.338), known as
6 the Workers' Compensation Act.
7 Section 3. The repeal of 42 Pa.C.S. § 7102(b) and the
8 reenactment of 42 Pa.C.S. § 7102(b.1), (b.2), (c)(2), (c.1) and
9 (d) shall apply to causes of action which arise after the
10 effective date of this section.
11 Section 4. This act shall take effect as follows:
12 (1) The following provisions shall take effect
13 immediately:
14 (i) Section 2 of this act.
15 (ii) This section.
16 (2) The remainder of this act shall take effect in 60
17 days.
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