Bayer-Bel v. Litovsky
Filed January 25, 2008, Second District, Division One
Cite as 2008 SOS 651

Tortfeasors’ Liability in Accident Reversed and Remanded

Sixteen-year old Anna Litovsky and her friend Liana cut class and met up with Anthony Mosley and Eugene Green. The four teenagers went to a party “in the hills”.

Soon Litovsky realized that people were drinking and using drugs and asked Mosley to take her back to school. He refused because he had been drinking and gave the keys to Green, who did the same for the same reason that he had also been drinking. In the end, they all agreed that Liana (who had a learner’s permit) would drive and Green would accompany the girls. Mosley stayed at the party.

Liana drove to the school and got out of the car. Green asked Litovsky (who did not have a driver’s license or a learner’s permit) to drive him back to the party and she complied. On the way, Litovsky (driving on the wrong side of the street) crashed head-on into a Toyota driven by Paulette Bayer-Bel.

As a result, Bayer-Bel sued Litovsky, Mosley, and Green, alleging causes of action for negligence (against Litovsky as the driver, and Mosley as the owner) and negligent entrustment (against Mosley and Green). Litovsky answered and a trial ensued.

After trial, the jury awarded Bayer-Bel $39,000 for past and present medical expenses and lost earnings, plus $150,000 for noneconomic damages. The jury allocated 60 percent of the fault to her because she was not wearing a seat belt. Of the remaining 40 percent, the jury allocated 40 percent to Litovsky, 20 percent to Mosley, and 40 percent to Green.

The trial court refused to apply Proposition 51, codified at Civil Code §1431.2(a), which “bars application of joint liability in tort cases based upon comparative fault and limits each defendant’s liability for damages to his or her proportionate share of the fault”.

The court found that the liability of all three defendants was based on “something akin to respondeat superior” or vicarious liability, not comparative fault. The court entered a judgment making Litovsky, Mosley and Green all jointly and severally liable for the entire amount of the judgment.

Litovsky appealed the decision of the trial court.

In review, the Second District court of appeal reversed the judgment, holding that the trial court erred in refusing to apply §1431.2(a).

According to the appeals court, the trial court relied on an exception to Prop 51 which was inapplicable in the case. According to that exception, when a defendant is liable only by reason of a ‘derivative non-delegable duty’ arising from his status as vehicle owner, his liability is secondary to that of the actor and he is not entitled to the benefits of Proposition 51.

Further, the appellate court noted that the trial court failed to consider that the liability of at least two of the defendants in this case was primary.

• Litovsky had primary liability because she was negligently driving the car at the time of the crash.


• Green had primary liability because he negligently entrusted the car to the unlicensed Litovsky.

The exception to Prop 51 relied on by the trial court was thus inapplicable.

Moreover, according to the appeals court, in applying §1431.2(a), the trial court should have found that Litovsky’s liability for Bayer-Bel’s non-economic damages was several, not joint, and that she was liable only for the amount of non-economic damages allocated to her by the jury.

The Second Appellate court therefore reversed the judgment. It held that the trial court erred in finding three independently acting tortfeasors to be jointly liable for the accident victim’s non-economic damages where two of them had primary, rather than vicarious, liability for the accident. The cause is thus remanded to the trial court with directions to enter a new judgment.