25-21,185.10. Civil actions to which contributory negligence is a defense; multiple defendants; joint and several liability; when; allocation of liability.
In an action involving more than one defendant when two or more defendants as part of a common enterprise or plan act in concert and cause harm, the liability of each such defendant for economic and noneconomic damages shall be joint and several.
In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.
Source
Annotations
1. General
2. Timing
3. Miscellaneous
1. General
This section contemplates a process by which the finder of fact determines the total noneconomic damages suffered by the plaintiff as the result of injuries proximately caused by the negligence of multiple defendants; then, it allocates a portion of the total to each defendant "in direct proportion to that defendant's percentage of negligence." Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54 (2009).
When, because of the settlement with one of the defendants, the action no longer involves multiple party defendants, then this section is no longer applicable. Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).
This section provides for allocation of damages among negligent tort-feasors only and does not provide for such allocation due to the acts of intentional tort-feasors. Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001).
Under tort law, where joint tort-feasors do not act as part of a common enterprise or plan, this section alters the common law by limiting a plaintiff's recovery of noneconomic damages from any one tort-feasor to that tort-feasor's proportionate liability in an action involving more than one defendant. Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001).
Joint tort-feasors who are defendants in an action involving more than one defendant share joint and several liability to the claimant for economic damages. Ammon v. Nagengast, 24 Neb. App. 632, 895 N.W.2d 729 (2017).
2. Timing
Under the plain language of this section, there must be multiple defendants in a case before the allocation provisions of this section will operate. Because the provisions of this section affect only the apportionment of damages between multiple defendants after liability has been established, the proper timeframe to consider in determining whether there are, in fact, multiple defendants in a case is when the case is submitted to the finder of fact. Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001).
The proper timeframe to consider whether there are multiple defendants is when the case is submitted to the finder of fact. Ammon v. Nagengast, 24 Neb. App. 632, 895 N.W.2d 729 (2017).
3. Miscellaneous
In an action that accrued after February 8, 1992, the jury should not be instructed with the "slight" and "gross" comparative negligence formulation. City of Wahoo v. NIFCO Mech. Systems, 306 Neb. 203, 944 N.W.2d 757 (2020).
With regard to contribution, liability for the loss among concurrent insurers should be allocated without regard to comparative fault or other subrogation-related questions such as lack of privity or the applicability of a contribution-among-joint tort-feasors statute. American Family Mut. Ins. Co. v. Regent Ins. Co., 288 Neb. 25, 846 N.W.2d 170 (2014).
This section does not provide that one defendant's negligence may be compared to another in a cause of action for strict liability in tort. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
The term "defendant" in this section includes a third-party defendant brought into an action pursuant to section 25-331. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000); Lackman v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999).
In order for defendants to be jointly and severally liable based on a joint enterprise theory, the plaintiff must prove, among other things, that the defendants shared a common pecuniary interest. Bahrs v. R M B R Wheels, Inc., 6 Neb. App. 354, 574 N.W.2d 524 (1998).