## Facts

- On November 7, 1968, at about 7:30 p.m., Shila A. Fugere drove east on State Highway 410 near Bonney Lake, Washington, in heavy rain, on wet pavement, in total darkness.
- Fugere’s vehicle was involved in a three-car sequence with two impacts occurring in rapid succession.
- First, Fugere’s vehicle was struck by an oncoming vehicle owned by Lopez, which sustained substantial damage to its right rear area.
- About 1 to 3 seconds later, Fugere’s vehicle was struck on the left side near the front door by a vehicle driven by Oscar E. Pierce, Jr., who had been traveling behind her.
- Fugere suffered serious injuries, including a lacerated liver, and other bodily injuries; Fugere and a passenger described the second impact as more forceful.
- Medical evidence did not allow a logical division of Fugere’s injuries between the first and second impacts; the harm was treated as a single, indivisible injury.
- Fugere sued Pierce for personal injuries.
- The trial court instructed the jury that Pierce was not liable for any injuries caused by the negligence of a third party.
- The jury found for Fugere against Pierce but awarded $2,500, an amount substantially less than her special damages.
- The trial court denied Fugere’s motion for a new trial, and Fugere appealed.

## Issues

1. Whether, when two independent tortfeasors’ acts occur almost simultaneously and cause an indivisible injury incapable of reasonable apportionment, the plaintiff may recover the full amount of damages from each tortfeasor.
2. Whether the defendant seeking to limit liability by dividing damages bears the burden of proving the harm is capable of apportionment with reasonable certainty.
3. Whether substantial evidence showed Fugere’s damages were capable of logical and reasonable apportionment between the two impacts.
4. If error occurred, whether the proper remedy is a new trial limited to damages or a new trial on all issues.

## Decision

- The appellate court reversed the judgment and remanded for a new trial limited to damages.
- The court held that when independent tortfeasors act in rapid succession to produce a single, indivisible injury, each is jointly and severally liable for the entire harm absent substantial proof permitting apportionment.
- The court held that the burden of proving apportionment rests on the defendant who claims damages can be divided.
- The court held there was no substantial evidence supporting a logical and reasonable apportionment of Fugere’s injuries between the first and second collisions.
- The court concluded the challenged instruction improperly assumed divisibility and likely led the jury to reduce damages based on an unsupported allocation.
- The court limited the new trial to damages because the error concerned damages, liability was clearly and separately determined, and the record did not indicate a compromise verdict on liability.

## Legal Principles

- Where independent tortfeasors’ acts occur in rapid succession and produce a single end result or indivisible injury, each tortfeasor is jointly and severally liable for the whole harm unless there is substantial proof of what damage was caused by each act.
- A defendant seeking apportionment bears the burden to prove the harm is capable of apportionment and can be allocated with reasonable certainty.
- If substantial evidence supports apportionment, allocation is a question for the trier of fact; if not, the plaintiff need not segregate damages among tortfeasors to recover full damages from a liable defendant.
- A new trial may be limited to damages when the only error concerns damages, liability and damages were clearly separable, there is no indication of a liability compromise, and limiting retrial serves the interests of justice.

## Conclusion

The court held that rapid-succession collisions producing an indivisible injury make each responsible tortfeasor liable for the full harm unless the defendant proves a reasonably certain basis for apportionment, and it ordered a new trial confined to damages because the jury’s award was likely affected by an erroneous apportionment instruction.


Fugere v. Pierce, 5 Wn. App. 592, 490 P.2d 132 (Wash. Ct. App. 1971)