Date: Thu, 2 Feb 2006 08:44:48 -0500

From: David Cheifetz

Subject: Standard of care in contribution proceedings

Robert,

There won't be a prior relationship in most cases of "concurrent several tortfeasors" - the classic example is two drivers whose separate acts of negligence concur in causing the same damage to a 3rd person. Or, if there is, the prior relationship has nothing to do with the incident - for example the two or more drivers happen to have been friends, but the friendship hasn't anything to do with why they were driving where they were, and how they were, when the accident occurred.

Cases of unequal apportionment are extremely common; in my experience more common than equal apportionment.

You might look at my dated "Apportionment of Fault" starting at p. 99, particularly at the bottom of 99 and then the bottom of 100. I list cases from various jurisdictions which, I wrote, establish that the test is objective and not subjective. At least one or two of those cases seem to have said specifically that apportionment isn't a moral issue - see pp 100-101. I see I quoted from Fleming, Torts (5th) at 256: "A drunken motorist is to be disciplined not for his intoxication but for his negligence."

Is your proposition that "fault" for apportionment should be more subjectively-based than "fault" in the context of liability premised on the notion that apportionment is conducted under a "just & equitable" regime rather than a "comparison of degrees of fault" regime? I don't see that it matters because, in either case, one first has to determine what one means by fault.

David

----- Original Message -----
From: "Robert Stevens"
To: "Harold Luntz"
Sent: Thursday, February 02, 2006 5:48 AM
Subject: Re: ODG: Standard of care in contribution proceedings

...

In my hypothetical the chauffeur is not responsible for the learner driver being a learner. In an ideal world, therefore, I'd like an example where there is no prior relationship between the parties.

Putting my cards on the table, it seems to me that a different test of 'fault' ought to apply in the context of contribution from that which applies in the context of liability for negligence. Fault should approximate more closely with moral blameworthiness in the context of contribution, and so a more 'subjective' approach is appropriate.

(In the context of contributory negligence we also, probably, find a different test.)

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