Fault is determined by examining how responsible each party is for causing the injury. This is different from examining how responsible each party is for the damages he has caused. For instance, in a car accident, one driver, Eric, may swerve into another lane, causing traffic behind him to pile up. This pile up results in body damage to several cars. Though Eric has not directly caused the damages of this pile up (since he just swerved and drove away without crashing at all), he is most at fault for the damages occurring.
Comparative responsibility divides the fault among parties by percentages, and then accordingly divides the money awarded to the plaintiff. The plaintiff may only recover the percentage of the damages he is not at fault for. If a plaintiff is found to be 25% at fault, he can recover only 75% of his damages.
So, let's say, in our above example, one car that was in the pile up decides to sue everyone else who was on the road at that time in the area of the pile up. This one car sues all these people in one lawsuit, making all people on the road defendants in this one case. The jury would compare the responsibility of each defendant in this case, assigning fault to each one individually, based on the evidence in the trial. It is likely that most of the fault for causing the accident would end up being attributed to the swerving car. The jury would decide to come up with a percentage of fault to assign to Eric-the-swerver. Let's say the jury thinks Eric was the only one at fault, so they assign him 100% responsibility. This means the swerver now must pay 100% of the damages (money) awarded to the plaintiff (the car suing all the other cars).
There are several circumstances that make comparative responsibility intricate: when the plaintiff shares in fault for the damages, when a defendant who has a share of the fault cannot be included in the suit, when one of the defendants can not pay, and when there are charges of both negligence and intentional torts in the same action.
First, let's consider the situation of the plaintiff sharing in the fault for the damages. Let's think about the car swerving example again. This time, though, the car that brings the law suit to court had a hand in causing the overall accident. Since this car is suing the other cars, how should the court treat the fact that the car bringing the suit was partly responsible? The defending cars would have to make out a counter-claim against the suing car to show it was partly responsible for the accident. Then, the jury will have to assign each party (defendants and plaintiff) a percentage of fault, as in the first example. Once this is done, how much money the car bringing the suit (the plaintiff) deserves to recover will depend on the laws of the state where the suit is taking place. A few states will not allow a plaintiff to recover if it is proven he is in any way at fault for the accident, even partially so. This rule is called contributory negligence. Most states will follow one of three solutions to the problem:
1. Allow the plaintiff to recover the amount of total damages to him, reduced by the percentage of fault he is assigned.
2. Allow the plaintiff to recover only if he was an equal or lower percentage at fault than each defendant. Plaintiff's recovery is reduced as in (a.)
3. Allow the plaintiff to recover only if he was less at fault than each of the defendants. Plaintiff's recovery again reduced as above.
Second, consider the situation where a defendant apportioned some fault can not pay his portion of the damages. States will cover this situation differently. There are four options:
a. The plaintiff will not recover from this defendant, and the other defendants will be responsible only for their share. Thirteen states follow this approach.
The next three options involve the doctrine of joint and several liability
b. Any of the other defendants can be held responsible for the unpaid share. Fifteen states follow this approach (10 contributory responsibility, 5 which still follow contributory negligence.
c. The unpaid share will be reapportioned among the other defendants, according to their percentages. Some states hold that only defendants above a specific percentage will share.
d. The unpaid share will be reapportioned among the defendants AND plaintiff according to each party's percentage share.
Third, is the issure of when one defendant is not present, the same options as above are present. However there is the initial question of whether to allow the fault of an absent defendant to be considered. States, again, are split on these issues.
Lastly, we have the issue of negligence and intentional torts in a single law suit. Courts, in the majority, do not apply comparative responsibility to intentional torts. However, some courts apply comparative responsibility to intentional torts. The law and academia on this issue is very complex, but typically support holding intentional tortfeasors in a suit subject to joint and several liability. Further, any negligent tortfeasor who negligently failed to protect the plaintiff from the intentional tortfeaser will be jointly and severally liable for the portion of the intentional tortfeasor's fault. This view is supported by the Restatement (Third) of Torts: Apportionment of Liability Section 1.
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