two policies: compensation and deterrence." Dobson, 705 F.2d at 763. The question therefore is whether allowing setoff in accordance with state law would tend to defeat these policies.
Section 15-108 of the General Obligations Law, insofar as it is relevant here, permits a non-settling defendant to setoff the greater of (a) the amount of any settlement actually paid by a settling defendant, or (b) the settling defendant's equitable share of the damages. Thus, if the settling defendant pays a settlement higher than its equitable share, the sum of the reduced damages paid by the non-settling defendant and the settlement will equal the total amount of damages sustained. But if the plaintiff makes a disadvantageous settlement -- that is, if the plaintiff settles with one tortfeasor for less than that tortfeasor's equitable share of the damages -- the sum of the plaintiff's judgment against the non-settling defendant, net of the reduction compelled by Section 15-108, and the settlement will be less than the total amount of damages inflicted by the joint tortfeasors.
Here, the total damages sustained did not exceed $ 210,000. The City paid a settlement of $ 145,000. The jury found that the NYPD told Melendez that he had the wrong person. While the City nevertheless bears some responsibility for what followed because the NYPD did not require that Mason be freed on the spot and allowed Melendez to leave Central Booking with on-line booking documents that may have cloaked him with a color of authority for his custody of Mason, the Court finds that the City's equitable share of the responsibility pales by comparison with that of Melendez, who was a deliberate wrongdoer. Accordingly, the Court finds that the settlement paid by the City comfortably exceeded its equitable share of the damages.
In these circumstances, reduction of the defendants' liability by the amount of the City's settlement would not conflict with either of the policies underlying Sections 1983 and 1988. Mason still would be made whole in that the sum of the defendants' liability in this case and the City's settlement would equal the sum of the damages found by the jury for the first and third periods of detention and the maximum amount for the second period that is legally justifiable. The question whether Section 15-108 may be applied in a Section 1983 case where the amount of the settlement is less than the settling defendant's equitable share of the damages -- and the effect of the setoff would be to leave the plaintiff less than whole -- will be left for another day.
The next question is the proper allocation of the settlement paid by the City to the different time periods at issue. The jury found aggregate liability of $ 300,000 of which $ 50,000 was attributed to the time prior to the arrival at the Port Authority facility, $ 100,000 to the time spent in the custody of the Port Authority, and $ 150,000 to the remaining time in the bondsmen's custody. The Court, however, has held that any damages for the second period in excess of $ 10,000 would be excessive. Hence, the aggregate liability for compensatory damages cannot exceed $ 210,000, of which roughly 24% ($ 50,000/$ 210,000), or $ 34,524, is attributable to the pre-Port Authority period, 4.8% ($ 10,000/$ 210,000), or $ 6,905, is attributable to the period while Mason was at the Port Authority facility, and approximately 71 % ($ 150,000/$ 210,000), or $ 103,571, to the ensuing period.
BBA and CI are jointly and severally liable for the entirety of plaintiff's compensatory damages, net of the City settlement. Assuming the plaintiff agrees to a remittitur, this sum is $ 65,000, which represents the total amount of damages to which plaintiff is entitled, $ 210,000, minus the City's settlement of $ 145,000. The Port Authority defendants were not responsible for any damages incurred prior to plaintiff's arrival at its facility. Accordingly, they are jointly and severally liable only for those damages incurred in the second and third periods, which, assuming the remittitur is accepted, are $ 160,000 minus the City's proportionate settlement setoff of $ 110,476, or $ 49,524.
Contribution/Apportionment of Liability
The Port Authority officers and the Port Authority, joined by BBA and CI, request that the Court apportion liability among the defendants. In making this claim, however, the officers overlook the fact that their liability stems from federal law, namely Section 1983, as well as state law. Although "courts have struggled with [the right to contribution under § 1983] and have reached different conclusions," Harris v. Angelina County, 31 F.3d 331, 338 & n.9 (5th Cir. 1994), the Court determines that there is no right to contribution under Section 1983.
As previously discussed, Section 1988 authorizes courts to import state law to fill in gaps in the civil rights laws. Whether the availability of contribution even merits application of the Section 1988 test is a threshold issue that is the subject of some debate.
In Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973), the Supreme Court stated that Section 1988 was not intended "to authorize the wholesale importation into federal law of state causes of action . . . ." Id. at 704-05. Some courts have interpreted this language as settling the issue. E.g., Rosado v. New York City Housing Authority, 719 F. Supp. 268, 273 (S.D.N.Y. 1989) (" 42 U.S.C. § 1988 serves the purpose of vindicating rights under § 1983, not state laws of contribution."); see 1 SCHWARTZ & KIRKLIN, SECTION 1983 LITIGATION § 16.18, at 89 (Moor would seem to preclude the utilization of § 1988 as a basis for finding a state law right of contribution in § 1983 actions.").
On the other hand, Moor cites Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 24 L. Ed. 2d 386, 90 S. Ct. 400 (1969), for the proposition that "'the existence of a statutory right implies the existence of all necessary and appropriate remedies....'" When construing Section 1988, "'both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes.'" Moor, 411 U.S. at 703 (quoting Sullivan, 90 S. Ct. at 406). Thus, the Port Authority argues, an action for contribution does not fall under Moor's "wholesale importation" language. Indeed, some courts have permitted contribution under Section 1983. See Alexander v. Hargrove, No. 93 Civ. 5510, 1994 WL 444726, at *1 (E.D. Pa. Aug. 16, 1994); Fishman v. De Meo, 604 F. Supp. 873, 877 (E.D. Pa. 1985). Because the propriety of Section 1988's application to the issue of contribution under Section 1983 remains something of an open question, the Court applies the Section 1988 test.
As the above authorities make clear, federal law does not establish a right to contribution under Section 1983. See 1 SCHWARTZ & KIRKLIN, SECTION 1983 LITIGATION, § 16.18, at 895. New York law clearly permits a tortfeasor to seek contribution from other nonsettling defendants. NEW YORK CIVIL PRACTICE LAW AND RULES § 1401 (McKinney, 1995). The question thus reduces to whether contribution between joint tortfeasors is consistent with Section 1983's goals.
As stated above, the primary ends of Section 1983 are deterrence and compensation. The availability of contribution does not affect a plaintiff's right to receive compensation but is simply a matter of who pays for the harm to the plaintiff. Permitting a right to contribution, however, would weaken Section 1983's deterrent value. Accordingly, contribution among joint tortfeasors in Section 1983 cases would conflict impermissibly with the statutory goal of deterrence and is impermissible under the third prong of the Section 1988 test.
For the foregoing reasons, a new trial is ordered with respect to (a) plaintiff's punitive damage claims against BBA and CI and, unless plaintiff files a notice with the Clerk of the Court on or before January 10, 1997 accepting the remittitur, (b) the amount of plaintiff's damages for the period during which she was held at the Port Authority facility at John F. Kennedy International Airport. Should plaintiff accept the remittitur, judgment ultimately shall be entered in plaintiff's favor (a) against defendants BBA, CI, the Port Authority, Hassett, Kohlman and Schaeffer, jointly and severally, for the sum of $ 49,524, and (b) against defendants BBA and CI, jointly and severally, in the additional amount of $ 15,476, the foregoing constituting the plaintiff's compensatory damage recovery. Entry of judgment will be delayed pending the disposition of plaintiff's punitive damage claim against BBA and CI.
Dated: December 17, 1996
Lewis A. Kaplan
United States District Judge