PRINTER'S NO.  142

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

2

Session of

2011

  

  

INTRODUCED BY CORMAN, FOLMER, SCARNATI, D. WHITE, BRUBAKER, VANCE, M. WHITE, SMUCKER, PIPPY, EICHELBERGER, MENSCH, RAFFERTY, WARD AND YAW, JANUARY 18, 2011

  

  

REFERRED TO JUDICIARY, JANUARY 18, 2011  

  

  

  

AN ACT

  

1

Amending Title 42 (Judiciary and Judicial Procedure) of the

2

Pennsylvania Consolidated Statutes, amending provisions

3

relating to comparative negligence.

4

The General Assembly of the Commonwealth of Pennsylvania

5

hereby enacts as follows:

6

Section 1.  Section 7102 of Title 42 of the Pennsylvania

7

Consolidated Statutes is amended to read:

8

§ 7102.  Comparative negligence.

9

(a)  General rule.--In all actions brought to recover damages

10

for negligence resulting in death or injury to person or

11

property, the fact that the plaintiff may have been guilty of

12

contributory negligence shall not bar a recovery by the

13

plaintiff or his legal representative where such negligence was

14

not greater than the causal negligence of the defendant or

15

defendants against whom recovery is sought, but any damages

16

sustained by the plaintiff shall be diminished in proportion to

17

the amount of negligence attributed to the plaintiff.

18

(a.1)  Recovery against joint defendant; contribution.--

 


1

(1)  Where recovery is allowed against more than one

2

person, including actions for strict liability, and where

3

liability is attributed to more than one defendant, each

4

defendant shall be liable for that proportion of the total

5

dollar amount awarded as damages in the ratio of the amount

6

of that defendant's liability to the amount of liability

7

attributed to all defendants and other persons to whom

8

liability is apportioned under subsection (a.2).

9

(2)  Except as set forth in paragraph (3), a defendant's

10

liability shall be several and not joint, and the court shall

11

enter a separate and several judgment in favor of the

12

plaintiff and against each defendant for the apportioned

13

amount of that defendant's liability.

14

(3)  A defendant's liability in any of the following

15

actions shall be joint and several, and the court shall enter

16

a joint and several judgment in favor of the plaintiff and

17

against the defendant for the total dollar amount awarded as

18

damages:

19

(i)  Intentional misrepresentation.

20

(ii)  An intentional tort.

21

(iii)  Where a defendant has been held liable for not

22

less than 60% of the total liability apportioned to all

23

parties.

24

(iv)  A release or threatened release of a hazardous

25

substance under section 702 of the act of October 18,

26

1988 (P.L.756, No.108), known as the Hazardous Sites

27

Cleanup Act.

28

(v)  A civil action in which a defendant has violated

29

section 497 of the act of April 12, 1951 (P.L.90, No.21),

30

known as the Liquor Code.

- 2 -

 


1

(4)  Where a defendant has been held jointly and

2

severally liable under this subsection and discharges by

3

payment more than that defendant's proportionate share of the

4

total liability, that defendant is entitled to recover

5

contribution from defendants who have paid less than their

6

proportionate share. Further, in any case, any defendant may

7

recover from any other person all or a portion of the damages

8

assessed that defendant pursuant to the terms of a

9

contractual agreement.

10

(a.2)  Apportionment of responsibility among certain

11

nonparties and effect.--For purposes of apportioning liability

12

only, the question of liability of any defendant or other person

13

who has entered into a release with the plaintiff with respect

14

to the action and who is not a party shall be transmitted to the

15

trier of fact upon appropriate requests and proofs by any party.

16

A person whose liability may be determined pursuant to this

17

section does not include an employer to the extent that the

18

employer is granted immunity from liability or suit pursuant to

19

the act of June 2, 1915 (P.L.736, No.338), known as the Workers'

20

Compensation Act. An attribution of responsibility to any person

21

or entity as provided in this subsection shall not be admissible

22

or relied upon in any other action or proceeding for any

23

purpose. Nothing in this section shall affect the admissibility

24

or nonadmissibility of evidence regarding releases, settlements,

25

offers to compromise or compromises as set forth in the

26

Pennsylvania Rules of Evidence. Nothing in this section shall

27

affect the rules of joinder of parties as set forth in the

28

Pennsylvania Rules of Civil Procedure.

29

[(b)  Recovery against joint defendant; contribution.--Where

30

recovery is allowed against more than one defendant, each

- 3 -

 


1

defendant shall be liable for that proportion of the total

2

dollar amount awarded as damages in the ratio of the amount of

3

his causal negligence to the amount of causal negligence

4

attributed to all defendants against whom recover is allowed.

5

The plaintiff may recover the full amount of the allowed

6

recovery from any defendant against whom the plaintiff is not

7

barred from recovery. Any defendant who is so compelled to pay

8

more than his percentage share may seek contribution.

9

(b.1)  Recovery against joint defendant; contribution.--

10

(1)  Where recovery is allowed against more than one

11

person, including actions for strict liability, and where

12

liability is attributed to more than one defendant, each

13

defendant shall be liable for that proportion of the total

14

dollar amount awarded as damages in the ratio of the amount

15

of that defendant's liability to the amount of liability

16

attributed to all defendants and other persons to whom

17

liability is apportioned under subsection (b.2).

18

(2)  Except as set forth in paragraph (3), a defendant's

19

liability shall be several and not joint, and the court shall

20

enter a separate and several judgment in favor of the

21

plaintiff and against each defendant for the apportioned

22

amount of that defendant's liability.

23

(3)  A defendant's liability in any of the following

24

actions shall be joint and several, and the court shall enter

25

a joint and several judgment in favor of the plaintiff and

26

against the defendant for the total dollar amount awarded as

27

damages:

28

(i)  Intentional misrepresentation.

29

(ii)  An intentional tort.

30

(iii)  Where a defendant has been held liable for not

- 4 -

 


1

less than 60% of the total liability apportioned to all

2

parties.

3

(iv)  A release or threatened release of a hazardous

4

substance under section 702 of the act of October 18,

5

1988 (P.L.756, No.108), known as the Hazardous Sites

6

Cleanup Act.

7

(v)  A civil action in which a defendant has violated

8

section 497 of the act of April 12, 1951 (P.L.90, No.21),

9

known as the Liquor Code.

10

(4)  Where a defendant has been held jointly and

11

severally liable under this subsection and discharges by

12

payment more than that defendant's proportionate share of the

13

total liability, that defendant is entitled to recover

14

contribution from defendants who have paid less than their

15

proportionate share. Further, in any case, any defendant may

16

recover from any other person all or a portion of the damages

17

assessed that defendant pursuant to the terms of a

18

contractual agreement.

19

(b.2)  Apportionment of responsibility among certain

20

nonparties and effect.--For purposes of apportioning liability

21

only, the question of liability of any defendant or other person

22

who has entered into a release with the plaintiff with respect

23

to the action and who is not a party shall be transmitted to the

24

trier of fact upon appropriate requests and proofs by any party.

25

A person whose liability may be determined pursuant to this

26

section does not include an employer to the extent that the

27

employer is granted immunity from liability or suit pursuant to

28

the act of June 2, 1915 (P.L.736, No.338), known as the Workers'

29

Compensation Act. An attribution of responsibility to any person

30

or entity as provided in this subsection shall not be admissible

- 5 -

 


1

or relied upon in any other action or proceeding for any

2

purpose. Nothing in this section shall affect the admissibility

3

or nonadmissibility of evidence regarding releases, settlements,

4

offers to compromise or compromises as set forth in the

5

Pennsylvania Rules of Evidence. Nothing in this section shall

6

affect the rules of joinder of parties as set forth in the

7

Pennsylvania Rules of Civil Procedure.]

8

(b.3)  Off-road vehicle riding.--

9

(1)  Off-road vehicle riding area operators shall have no

10

duty to protect riders from common, frequent, expected and

11

nonnegligent risks inherent to the activity, including

12

collisions with riders or objects.

13

(2)  The doctrine of knowing voluntary assumption of risk

14

shall apply to all actions to recover damages for negligence

15

resulting in death or injury to person or property brought

16

against any off-road vehicle riding area operator.

17

(3)  Nothing in this subsection shall be construed in any

18

way to abolish or modify a cause of action against a

19

potentially responsible party other than an off-road vehicle

20

riding area operator.

21

(c)  Downhill skiing.--

22

(1)  The General Assembly finds that the sport of

23

downhill skiing is practiced by a large number of citizens of

24

this Commonwealth and also attracts to this Commonwealth

25

large numbers of nonresidents significantly contributing to

26

the economy of this Commonwealth. It is recognized that as in

27

some other sports, there are inherent risks in the sport of

28

downhill skiing.

29

(2)  The doctrine of voluntary assumption of risk as it

30

applies to downhill skiing injuries and damages is not

- 6 -

 


1

modified by subsections (a) and [(b)] (a.1).

2

[(c.1)  Savings provisions.--Nothing in this section shall be

3

construed in any way to create, abolish or modify a cause of

4

action or to limit a party's right to join another potentially

5

responsible party.]

6

(c.2)  Savings provisions.--Nothing in this section shall be

7

construed in any way to create, abolish or modify a cause of

8

action or to limit a party's right to join another potentially

9

responsible party.

10

(d)  Definitions.--As used in this section the following

11

words and phrases shall have the meanings given to them in this

12

subsection:

13

"Defendant or defendants [against whom recovery is sought]."

14

Includes impleaded defendants.

15

"Off-road vehicle."  A motorized vehicle that is used off-

16

road for sport or recreation. The term includes snowmobiles,

17

all-terrain vehicles, motorcycles and four-wheel drive vehicles.

18

"Off-road vehicle riding area."  Any area or facility

19

providing recreational activities for off-road vehicles.

20

"Off-road vehicle riding area operator."  A person or

21

organization owning or having operational responsibility for any

22

off-road vehicle riding area. The term includes:

23

(1)  Agencies and political subdivisions of this

24

Commonwealth.

25

(2)  Authorities created by political subdivisions.

26

(3)  Private companies.

27

"Plaintiff."  Includes counter claimants and cross-claimants.

28

Section 2.  Nothing in the amendment of 42 Pa.C.S § 7102 or

29

in the act of June 19, 2002 (P.L.394, No.57), entitled "An act

30

amending Title 42 (Judiciary and Judicial Procedure) of the

- 7 -

 


1

Pennsylvania Consolidated Statutes, providing for DNA testing of

2

certain offenders; reestablishing the State DNA Data Base and

3

the State DNA Data Bank; further providing for duties of the

4

Pennsylvania State Police; imposing costs on certain offenders;

5

reestablishing the DNA Detection Fund; further providing for the

6

apportionment of liability and damages; imposing penalties; and

7

making a repeal," shall be construed to diminish the immunity of

8

an employer to the extent that the employer is granted immunity

9

from liability or suit pursuant to the act of June 2, 1915

10

(P.L.736, No.338), known as the Workers' Compensation Act.

11

Section 3.  The amendment of 42 Pa.C.S. § 7102 shall apply to

12

causes of action which accrue on or after the effective date of

13

this section.

14

Section 4.  This act shall take effect immediately.

- 8 -