1、1 of 42 DOCUMENTS Restatement of the Law, Third, Torts: Apportionment of Liability Copyright (c) 2000, The American Law Institute Case Citations Topic 1 - Basic Rules of Comparative Responsibility Restat 3d of Torts: Apportionment of Liability, 1 1 Issues and Causes of Action Addressed by This Resta

2、tement This Restatement addresses issues of apportioning liability among two or more persons. It applies to all claims (including lawsuits and settlements) for death, personal injury (including emotional distress or consortium), or physical damage to tangible property, regardless of the basis of lia

3、bility. COMMENTS & ILLUSTRATIONS: Comment:a. Nomenclature and issues addressed by this Restatement. The term this Restatement, whenever used in Topics 1-5, refers to Restatement Third, Torts: Apportionment of Liability. It does not refer generally to Restatement Third, Torts.This Restatement address

4、es issues that arise in apportioning liability among two or more persons, including the plaintiff. Some of its topics, such as comparative responsibility, were not addressed in the Restatement Second of Torts. Other topics, such as joint and several liability, were addressed in the Restatement Secon

5、d of Torts. Even for topics that were addressed in the Restatement Second of Torts, the nearly universal adoption of comparative responsibility by American courts and legislatures has had a dramatic impact. This Restatement reflects changes in the law since the publication of the Restatement Second

6、of Torts.Comparative responsibility has a potential impact on almost all areas of tort law. Sometimes comparative responsibility directly affects apportionment, such as when it determines the effect of a plaintiffs negligence on his or her recovery. At other times, comparative responsibility can aff

7、ect rules of apportionment, which in turn can affect other rules of tort law. For example, rules about joint and several liability can affect rules concerning fault or causation, because a court might be willing to relax liability rules when a defendant is liable only for a portion of the harm. Thus

8、, the impact of comparative responsibility on American tort law is profound.Comparative responsibility requires courts to coordinate liability rules and defenses in ways that transcend the traditional boundaries between various torts. Tort law generally reflects two variables: the nature of the defe

9、ndants conduct and the nature of the plaintiffs injury. Apportionment issues cut across this structure. Several defendants might be subject to liability under different tort theories, but apportionment among them requires coordination. A single defendant can be liable under several tort theories. Th

10、erefore, a plaintiffs conduct can be relevant in different ways, depending on the theory of recovery. It would be difficult to compare a plaintiffs conduct with a defendants conduct if different apportionment rules govern different bases of liability in the same lawsuit.Applying different apportionm

11、ent rules to different parts of a multi-party, multi-theory lawsuit poses important practical problems, but it also highlights conceptual tensions. The intellectual underpinning of having subcategories in substantive tort law-that is, of having separate torts-is that various torts raise different po

12、licy concerns. The intellectual underpinning of comparative responsibility is that a single injury is more or less unitary. Consequently, this Restatement must address the resulting tensions between maintaining distinctions based on the different torts and a common comparison of the parties responsi

13、bility in a single lawsuit.Tort rules can be grouped into four categories around the problem of apportionment. The first category contains the core issues:(1) the legal effects of different types of a plaintiffs conduct, such as a plaintiffs intentional self-injury, a plaintiffs negligence, and a pl

14、aintiffs voluntarily assuming a risk;(2) joint and several liability;(3) apportionment of damages by causation; and(4) contribution and indemnity.These core topics are addressed in the following Sections of Restatement Second, Torts: 402A, Comment n: Contributory Negligence and Assumption of Risk St

15、rict Products Liability; 433A: Apportionment of Harm to Causes Negligence; 433B: Burden of Proof Negligence; 434: Functions of Court and Jury Negligence; 467: Contributory Negligence as a Bar Against Negligent Defendant Negligence; 496A: General Principle of Assumption of Risk Negligence; 496B: Expr

16、ess Assumption of Risk Negligence; 496C: Implied Assumption of Risk Negligence; 515: Plaintiffs Conduct Strict Liability for Animals; 523: Assumption of Risk Strict Liability for Abnormally Dangerous Activities; 524: Contributory Negligence Strict Liability for Abnormally Dangerous Activities; 545A:

17、 Contributory Negligence Fraud; 552A: Contributory Negligence Negligent Misrepresentation; 694A: Contributory Fault of Deprived Spouse Interference with Marriage Relation; 704A: Contributory Fault of Parent Interference with Parent Relationship; 840B: Contributory Negligence Private Nuisance; 840C:

18、Assumption of Risk Private Nuisance; 840E: Others Contributing to the Nuisance Private Nuisance; 875: Contributing Tortfeasors-General Rule; 876: Persons Acting in Concert; 877: Directing or Permitting Conduct of Another; 878: Persons Subject to a Common Duty; 879: Concurring or Consecutive Independ

19、ent Acts; 880: One or Two Tortfeasors Has an Immunity; 881: Distinct or Divisible Harms; 882: Joinder of Parties; 883: Judgment for One and Against Another Tortfeasor in an Action Against Both; 884: Prior Judgment for or Against One of Several Tortfeasors; 885: Effect of Release of or Payment by or

20、on Behalf of One of Several Tortfeasors; 886: Satisfaction of a Judgment Against One of Several Tortfeasors; 886A: Contribution Among Tortfeasors; and 886B: Indemnity Between Tortfeasors. This Restatement addresses these issues.A second category contains issues involving the character (as opposed to

21、 effect) of a plaintiffs conduct, such as the type of conduct that counts against a plaintiff in negligence, strict products liability, and so forth. These issues raise the strongest arguments for having uniform rules apply to various torts, because problems created by using different rules about a

22、plaintiffs conduct in different parts of a lawsuit are more significant than problems created by using different rules about a defendants conduct.Sections in Restatement Second, Torts, addressing these issues are: 463: Contributory Negligence Defined Negligence; 464: Standard of Conduct Defined Negl

23、igence; 465: Causal Relation Between Harm and Plaintiffs Negligence Negligence; 466: Types of Contributory Negligence Negligence; 468: Harm Not Resulting from Hazard Which Makes Plaintiffs Conduct Negligent Negligence; 469: Violation of Legislation or Regulation Contributory Negligence Negligence; 4

24、70: Conduct in Emergency Negligence; 471: Effect of Risk to Third Person Negligence; 472: Danger Encountered in Effort to Save Person or Property Negligence; 473: Danger Encountered in Exercise of Right or Privilege Negligence; 474: Failure to Discover Condition of Highway Negligence; 475: How Stand

25、ard of Conduct is Determined Negligence; 476: Functions of Court and Jury Negligence; 477: Burden of Proving Contributory Negligence Negligence; 478: Time of Plaintiffs Negligence in Relation to That of Defendant Negligence; 479: Last Clear Chance: Helpless Plaintiff Negligence; 480: Last Clear Chan

26、ce: Inattentive Plaintiff Negligence; 481: Intentional Injury Negligence; 482: Reckless Conduct Negligence; 483: Defense to Violation of Statute Negligence; 484: Harm for Which There is Strict Liability Strict Liability; 485: Imputed Negligence: General Principle Negligence; 486: Master and Servant

27、Negligence; 487: Husband and Wife Negligence; 488: Parent and Child Negligence; 489: Bailees Negligence; 490: Passenger or Guest in Vehicle Negligence; 491: Joint Enterprise Negligence; 492: Nominal Plaintiff Negligence; 493: Beneficiary Under a Death Statute Negligence; 494: Negligence of Person fo

28、r Whose Death or Loss of Services Action is Brought Wrongful Death; 494A: Negligence of Other Parent in Action for Loss of Service; 495: Failure to Control Negligent Third Person Negligence; 496: Failure of Parent to Control Child Negligence; 496D: Knowledge and Appreciation of Risk Negligence; 496E

29、: Necessity of Voluntary Assumption Negligence; 496F: Violation of Statute Negligence; 496G: Burden of Proof Negligence; 498: What Constitutes Contributory Negligence Negligent Invasions of Land or Chattels; 499: Necessary Causal Relation Negligent Invasions of Land or Chattels. This Restatement add

30、resses these issues.A third category contains certain causation issues. Some issues of causation actually apportion damages among parties and therefore are in the first (core) category. Rules about apportionment might also affect a courts views about causation. For example, a court might be more wil

31、ling to adopt relaxed rules about causation (or shift a burden of proof to the defendant) when a defendant is liable only for a portion of the damages rather than for the entire damages. Some issues of causation affect the amount of damages attributable to a particular defendant. For example, when a

32、 doctor aggravates an injury caused by a negligent motorist, the negligent motorist and the doctor cause different portions of the damages, even if the same rules about causation apply to both defendants. Nevertheless, this Restatement does not address these issues of causation, because they are not

33、 directly involved in apportionment.A fourth category contains issues about the existence of liability vel non, including defining the underlying wrong, certain privileges, and duty. For example, rules concerning joint and several liability might affect rules about fault. A court might be willing to

34、 use a more relaxed notion of fault when a defendants resulting liability would be for a portion of the damages rather than for the entire damages. Comparative responsibility might also cause a court to rethink its approach to statutory negligence or legal causation. Nevertheless, the connection bet

35、ween these issues and apportionment is attenuated. Consequently, this Restatement does not address them.b. Bases of liability addressed by this Restatement. This Restatement applies to all claims to recover compensation for death, personal injury, or physical damage to tangible property, including i

36、ntentional torts, negligence, strict liability, nuisance, breach of warranty, misrepresentation, or any other theory of liability. This Restatement takes no position on whether or under what circumstances emotional distress or consortium is recoverable. When they are recoverable, they are considered

37、 to be forms of personal injury, and this Restatement is applicable. The adoption of comparative responsibility somewhat undermines the rationale for refusing to recognize a plaintiffs negligence as a defense to intentional torts and strict products liability, because the defense is no longer an abs

38、olute bar to a plaintiffs recovery. This is especially true for intentional torts when a defendant honestly but unreasonably believes his or her conduct is not tortious. See Comment c. Moreover, single lawsuits often contain claims based on several different theories of liability, and it is desirabl

39、e that a single system of apportionment apply to all the claims.c. Special issues involving intentional torts. Intentional torts present special problems of apportionment. These concerns are strongest in cases where an alleged intentional tortfeasor contends that the plaintiffs own conduct was unrea

40、sonable. They are taken into account when applying the rules of this Restatement to particular cases. See, e.g., 3, 7, 8. In some situations, this Restatement provides special rules governing intentional tortfeasors. See, e.g., 12, 14. The basic concept is that liability should be apportioned among

41、all legally culpable actors according to proportionate shares of responsibility, while affording appropriate redress to victims of intentional torts. Consequently, this Restatement is applicable to all bases of liability, including intentional torts, but provides courts with flexibility to fashion a

42、ppropriate special rules for victims of intentional torts.Traditionally, a plaintiffs negligence was not a defense to intentional torts. See Restatement Second, Torts 481. Courts and legislatures generally ignored intentional torts when they adopted comparative responsibility. Whether intentional to

43、rts should be included raises two principal issues as well as some subordinate ones. First, should a plaintiffs negligence reduce the plaintiffs recovery against an intentional tortfeasor? Second, when one of two or more defendants is liable for an intentional tort, should a percentage of responsibi

44、lity be assigned to that tortfeasor? Such an allocation could affect: (a) the plaintiffs own percentage of responsibility and thereby reduce the plaintiffs recovery against other defendants, including nonintentional tortfeasors, (b) whether to impose joint and several liability on various defendants

45、, (c) the allocation of responsibility to other defendants, (d) whether a different defendant should bear liability for responsibility assigned to the intentional tortfeasor, (e) the rules governing settlement, and (f) contribution and indemnity.Although some courts have held that a plaintiffs negli

46、gence may serve as a comparative defense to an intentional tort, most have not. This Restatement takes no position on that issue. When substantive rules of law provide that the plaintiffs negligence is a defense to an intentional tort, it reduces but does not bar recovery. See 7. When substantive ru

47、les of law provide that the plaintiffs negligence is not a defense to an intentional tort, the plaintiffs negligence is still a comparative defense to other, nonintentional torts. See A18, Comment e; B18, Comment e; C18, Comment e; D18, Comment i; E18, Comment g; 23, Comment e.In a multiparty lawsui

48、t in which a defendant or other relevant person is liable for an intentional tort, the factfinder assigns a percentage of responsibility to each party and each other relevant person, including the plaintiff and any intentional tortfeasor, but special rules apply to these cases. Considerations in joi

49、nt and several liability change when an intentional tortfeasor is involved. Consequently, 12 provides that an intentional tortfeasor is jointly and severally liable for a plaintiffs indivisible injury, even when joint and several liability has otherwise been abolished. Section 14 provides that a non

50、intentional tortfeasor is liable for the percentage of responsibility assigned to an intentional tortfeasor when the nonintentional tortfeasor has a special duty to protect the plaintiff from harm by the intentional tortfeasor. Section 23, Comment e, permits the nonintentional tortfeasor to recover

51、those damages as contribution from the intentional tortfeasor.d. Exceptions. The specific policies embodied in a particular cause of action, especially a statutory cause of action, may preclude applying a plaintiffs negligence as a comparative defense, see 7, preclude imposing joint and several liab

52、ility, see 12, or preclude allowing indemnity and contribution, see 22, 23. These situations are addressed in 7. Otherwise, the rules stated in this Restatement are applicable.e. Other types of injuries. The policy considerations for apportioning liability reflected in this Restatement are possibly

53、applicable to cases involving injuries other than personal injury or physical damage to tangible property. On the other hand, those cases may also involve special policy considerations. In light of these competing considerations, this Restatement sometimes may be referred to by analogy in suits for

54、purely nontangible economic loss caused by breach of contract or warranty, fraud, misrepresentation, nonmedical professional malpractice, or, where recognized, negligence; in suits by insureds or others against insurers for inappropriate claims-settlement practices; and in suits for breach of fiduci

55、ary relationship, interference with contractual relations, defamation, and invasion of privacy. These principles may also be referred to by analogy when a statutory system calls for apportionment, except when inconsistent with a policy of the statute. For example, a statutory cause of action might n

56、ot contemplate a right of contribution. See 23. Conversely, the fact that a statutory cause of action does provide for a right of contribution is a possible argument for the application of joint and several liability.f. Claims against employers for workplace injuries. Recovery from an employer for a

57、 workplace injury is normally governed by a workers compensation statute. Workers compensation statutes normally provide for separate litigation or administrative proceedings and are not governed by this Restatement. A workplace injury not governed by a workers compensation statute, but instead by a

58、 common-law cause of action or wrongful-death statute, is governed by this Restatement. The effect of an employers responsibility in a suit against someone other than the employer is addressed in Topic 2. REPORTERS NOTES: Comment a. Nomenclature and issues addressed by this Restatement. Defining the

59、 scope of this Restatement has been one of the most important and difficult tasks of this project. The basic idea is to leave first-order questions involving the basic rules of liability, causation, and defenses to the applicable substantive law. Instead, this Restatement addresses second-order ques

60、tions about apportioning liability among two or more persons, including the plaintiff, taking as a given the underlying substantive law about liability. These second-order issues have been most directly affected by the widespread adoption of comparative negligence (now comparative responsibility) an