Comparative responsibility (known as comparative fault in some jurisdictions) is a doctrine of

tort law A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

that compares the fault of each party in a lawsuit for a single injury. Comparative responsibility may apply to

intentional torts An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer). The term negligence, on the other hand, pertains to a tort that simply results from the f ...

as well as

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

and encompasses the doctrine of

comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which t ...

. Comparative responsibility divides the fault among parties by percentages, and then accordingly divides the money awarded to the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...

. 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. 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

and

in the same action.

United States

Currently, only Alabama, Maryland, and the District of Columbia will not allow a plaintiff to recover if it is proven to be in any way at fault. This rule is called

contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...

, a doctrine perceived to be overly "harsh", which "has caused all but a few States to substitute the doctrine of comparative negligence". Most states will follow one of three solutions to the problem: #Allow the plaintiff to recover the amount of total damages to him, reduced by the percentage of fault he is assigned. #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.) #Allow the plaintiff to recover only if he was less at fault than each of the defendants. Plaintiff's recovery again reduced as above. Another situation is where a defendant apportioned some fault can not pay his portion of the damages. States will cover this situation differently. There are four options: # 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 Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be: * jointly liable, or * severally liable, or * jointly and severally liable. Joint liability If parties have joint liabilit ...

: # Any of the other defendants can be held responsible for the unpaid share. Fifteen states follow this approach (10 contributory responsibility, five which still follow

. # 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. # The unpaid share will be reapportioned among the defendants AND plaintiff according to each party's percentage share. Third, is the issue 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, there is the issue of

and

in a single lawsuit. 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

. Further, any negligent tortfeasor who negligently failed to protect the plaintiff from the intentional tortfeasor 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. Even more complicated is the issue of whether comparative fault should be allowed in

strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...

actions. Most jurisdictions, starting with California (which also pioneered strict liability for defective products), have held that the jury should be allowed to apportion fault between plaintiffs and defendants even in strict products liability actions.''Daly v. General Motors Corp.''
20 Cal. 3d 725
(1978) (affirming defendant's right to introduce evidence that plaintiff was intoxicated and not using safety devices at time of accident in allegedly defective vehicle). The Restatement (Third) of Torts (section 25) reflects the current majority view that comparative negligence applies to the strict liability of defendant.

References

{{reflist Tort law Comparative law

United States

See also

References