Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts

Abstract

The move from contributory negligence to comparative fault in tort law has been swift and pervasive, with only four states and the District of Columbia retaining pure contributory negligence schemes. Comparative fault, combined with the doctrine of several liability, has heralded a new era of tort law in which justice is based on responsibility, and each party to an action is held liable only for its share of the fault. Although this paradigm shift seems to have been a move in the right direction, the strength and simplicity of the central concept of "comparative responsibility" has often compelled law-makers to adopt sweeping change without tending to many important corollary issues. This Note concerns one such issue: how several-liability jurisdictions should handle an immune nonparty's share of responsibility for a tort.

Keywords: contributory negligence, comparative fault, doctrine of several liability, torts, comparative responsibility