Substantial Factor Test or Theory

Florida – Construction Litigation

A theory has been put forth by the plaintiffs in several construction defect cases that they do not need to attribute fault to the various contractors, subcontractors and other parties under the Substantial Factor Theory. Plaintiffs argue that all they need to establish is that each party was a substantial factor in the damages.

Under Florida law, if two or more tortfeasors are found to be a "substantial factor" in an injury or harm to a plaintiff, then each of those parties may be found one hundred percent liable to the plaintiff for the harm in which they were a substantial factor. See Gross v. Lions, 763 So.2d 276 (Fla. 2000). This theory, or test, appears to be applied to both cases concerning contractual damages as well as tort damages. See also Cedar Hills Property Corp. v. Eastern Federal Corp., 575 So.2d 673 (Fla. 1st DCA 1991). This theory is best explained in an auto accident or medical injury case. The primary example as seen in case law is when two or more tortfeasors cause damage in auto accident type case. If the plaintiff was injured in the initial accident and then re-injured or had a subsequent injury in a subsequent accident, at times it would be impossible for a jury to determine from which accident the damages arose. Therefore, Florida's courts have adopted this substantial factor test in order to determine responsibility for damages. In fact, the Supreme Court in Gross re-labeled the test the indivisible injury rule.

And in at least one Florida case this test or theory was applied to a construction defect claim. In Centex-Rooney Construction Co., Inc. v. Martin County, Florida, 706 So.2d 20 (Fla. 4th DCA 1997), the Fourth District Court of Appeals determined that the general contractor could be found one hundred percent at fault for a "sick building" even though there were several other contributing factors to the plaintiff's damages. However, this case and most of the other cases concerning this substantial factor test do not explain exactly what is required to be a substantial factor or how this test should be applied. In fact, the Centex case could be seen as distinguishable from many of our actions. Centex was a general contractor for the construction project. It is obvious that the general contractor could be found to be a substantial factor in defects in a building. However, the case did not go into any detail as to whether or not the subcontractors who worked on various portions of the building could be determined to be a substantial factor. I did not discover any case in which a subcontractor was found to be a substantial factor in the overall failure of a construction project. However, there does not appear to be many cases that actually address this issue; therefore, there was no guidance either way.

The substantial factor test, or theory, appears to be applied when a jury cannot apportion fault or injury amongst various joint tortfeasors. This theory has been established in Florida for a number of years, but it does not appear to have been applied to construction defect claims until very recently. This might be due to the fact that, typically, construction defect claims experts are retained in order to determine an apportion of fault amongst tortfeasors and the various parties in litigation. Therefore, there is very little guidance in Florida law as to construction cases and the Substantial Factor Theory.

Conclusion

The substantial factor test or theory has been established in Florida since at least 1980. See Turtle Fest White Constructors, Inc. v. Montgomery Elevator Co., 385 So.2d 98 (Fla. 5th DCA 1980). However, the law of Florida has changed numerous times as to joint and several liability and comparative fault since that time. The Gross v. Lions, 763 So.2d 276 (Fla. 2000) case established in 2000 that the Supreme Court found the comparative fault and substantial factor theories were not mutually exclusive. However, I question that ruling as it would apply to a construction defect claim. The example cited in that court is that, if the tortfeasor in the primary auto accident is a substantial factor in the secondary auto accident and the injury thereof, he could be found one hundred percent liable for the plaintiff's damages. In many of our cases, we would have multiple parties responsible for the same alleged defect. It is possible to describe which of these parties was responsible for what portion of the damages. Even if this was not an easy thing to do or something that was possible, I believe that a construction defect claim would be different than an auto accident. No one party is one hundred percent at fault for anything. Each party is only at fault for their defect, if any. I think this is a distinction that we can draw upon when debating this topic.

However, even if the substantial factor theory/test is allowed to proceed, I do not believe it would impact construction defect claims substantially. The plaintiff still must prove that our clients are a substantial factor in the plaintiff's damages. Next, the plaintiff still must prove his damages, and a jury must find that we are a substantial factor. Further, if we believe this test will be applied, or could be applied, it would be prudent for us to file cross claims against the various co-defendants, third-party defendants and other parties so that those parties will be on the verdict form alongside us. At that point, the jury would be forced to attribute fault to the various parties in order to satisfy the cross claims. So, unless the plaintiff is able to separate the cross claims and third-party claims from its original actions, all these claims will be decided by the same jury, and, therefore, the apportionment of fault will be de facto despite the plaintiff's efforts to apply the Substantial Factor Theory.

*Geoffrey, an associate in our Jacksonville, Florida, office, can be reached at (904) 358-4211 or grlutz@mdwcg.com.

Defense Digest, Vol. 16, No. 4, December 2010