Abstract
In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff’s claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff’s injury are each held fully (solidarily) liable for the plaintiff’s possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff’s person) by all the Australian states are neither justifiable nor fair …
Wright, Richard W, Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power (November 30, 2018). Apportionment in Private Law, ch 2 (K Barker and R Grantham eds, Hart, December 2018).
First posted 2018-12-07 06:42:55
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