Thu, 2 Feb 2006 08:44:48 -0500
Standard of care in contribution proceedings
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
of unequal apportionment are extremely common; in my experience
more common than equal apportionment.
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."
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.
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
(In the context of contributory negligence we also, probably, find
a different test.)
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