Restatement (Third) of Torts: Apportionment Liab. s 1 (P.F.D. Rev., 1999)

Restatement of the Law Third

Torts: Apportionment of Liability

Proposed Final Draft (Revised) [FNa]

(March 22, 1999)

Topic 1. Basic Rules of Comparative Responsibility

Copyright (c) 1999 The American Law Institute

s 1. ISSUES AND CAUSES OF ACTION ADDRESSED BY THIS RESTATEMENT

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 property damage, regardless of the basis of liability.

Comment:

a. Nomenclature and issues addressed by this Restatement. The term "this Restatement," whenever used in Topics 1-5, refers to the Restatement Third of Torts: Apportionment of Liability. It does not refer generally to the Restatement Third of Torts. This Restatement addresses issues that arise in apportioning an injury 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 issues, such as joint and several liability, were addressed in the Restatement Second of Torts. Nevertheless, the nearly universal adoption of comparative responsibility by American courts and legislatures has had a dramatic impact on these issues. This Restatement reflects changes in the law that have occurred since the publication of the Restatement Second of Torts.

Comparative responsibility has potential impact in almost all areas of tort law. Some rules, such as rules determining the effect of a plaintiff's negligence on his or her recovery or rules about joint and several liability, directly affect apportionment. Rules about joint and several liability can affect rules about fault or causation because a court might be willing to relax liability rules if the defendant were liable only for a portion of the harm. Moreover, comparative responsibility sometimes 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 defendant's state of mind and the nature of the plaintiff's injury.

Apportionment issues cut across this structure. Multiple defendants might be subject to liability under different tort theories, but apportionment among them should be coordinated. A single defendant can be liable under various tort principles, so a plaintiff's conduct can be relevant in different ways, depending on the theory of recovery. It is often difficult to compare a plaintiff's conduct with that of a defendant when different apportionment rules govern comparative responsibility in the same lawsuit.

Applying different apportionment rules to different parts of a multi-party, multi-theory lawsuit not only poses important practical problems, it also highlights conceptual tensions. The intellectual underpinning of the subcategories of tort law is that the various torts are different, especially negligence and intentional torts. The intellectual underpinning of comparative responsibility is that a single injury is more or less unitary. The tort-by- tort structure supports separate solutions within each tort. This Restatement therefore must address the resulting tensions between maintaining distinctions on the bases of tort liability and a common comparison of parties' responsibility in a single lawsuit.

Tort rules can be grouped in four categories around this problem of apportionment. In the first category are the core issues:

(1) the legal effects of different types of plaintiff's conduct, such as intentional self-injury, contributory negligence, comparative negligence, and assumption of risk,

(2) joint and several liability,

(3) apportionment of damages by causation in cases involving multiple tortfeasors, and

(4) contribution and indemnity.

These core topics are addressed in the following sections of the Restatement Second of Torts: § 402A, Comment n: Contributory Negligence and Assumption of Risk [Strict 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: Express Assumption of Risk [Negligence]; § 496C: Implied Assumption of Risk [Negligence]; § 515: Plaintiff's 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: 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: 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 Independent 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 on Behalf of One of Several Tortfeasors; § 886: Satisfaction of a Judgment Against One of Several Tortfeasors; § 886A: Contribution Among Tortfeasors; § 886B: Indemnity Between Tortfeasors. This Restatement addresses these issues.

In the second category are issues involving the character (as opposed to effect) of plaintiff's conduct, such as the type of conduct that counts against a plaintiff in negligence, strict products liability, and so on. These issues pose the strongest arguments for similar treatment of various torts. Problems created by using different rules about a plaintiff's conduct in different parts of a lawsuit are more frequent than problems created by using different rules about a defendant's conduct.

Sections in the Restatement Second of Torts addressing these issues are:§ 463: Contributory Negligence Defined [Negligence]; § 464: Standard of Conduct Defined [Negligence]; § 465: Causal Relation Between Harm and Plaintiff's Negligence [Negligence]; § 466: Types of Contributory Negligence [Negligence]; § 468: Harm Not Resulting from Hazard Which Makes Plaintiff's Conduct Negligent [Negligence]; § 469: Violation of Statute or Regulation [Contributory Negligence] [Negligence]; § 470: Conduct in Emergency [[[[[Negligence]; § 471: Effect of Risk to Third Person [Negligence]; § 472: Danger Encountered 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 Standard of Conduct is Determined [Negligence]; § 476: Functions of Court and Jury [Negligence]; § 477: Burden of Proving Contributory Negligence [Negligence]; § 478: Time of Plaintiff's Negligence in Relation to That of Defendant's[Negligence]; § 479: Last Clear Chance: Helpless Plaintiff [Negligence]; § 480: Last Clear Chance: 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 [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 for 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: 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 addresses these issues.

In the third category are certain issues of causation. Some causation issues actually apportion damages among parties according to causation and therefore are in the first (core) category. Rules about apportionment might also affect a court's views about causation. For example, a court might be more willing to adopt relaxed rules about causation (or shift a burden of proof to the defendant) if the defendant is liable only for a portion of the harm than for the entire harm. Some issues of causation affect the amount of damages attributable to a particular defendant. For example, if a doctor aggravates an injury caused by a negligent motorist, the negligent motorist and the doctor have caused different portions of the injury, 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 directly involved in apportionment.

In the fourth category are issues about the existence of liability vel non, including defining the underlying wrong, certain privileges, and duty. For example, rules about joint and several liability may implicate rules about fault. A court may be willing to use a relaxed notion of fault if the defendant's resulting liability would be for a portion of the harm rather than for the entire harm. Comparative responsibility may cause a court to rethink its approach to statutory negligence or legal causation. Nevertheless, the connection between these issues and apportionment is attenuated. Consequently, this Restatement does not address them.

b. Bases of liability addressed by this Restatement. This Restatement generally applies to all claims to recover compensation for death, personal injury, or property damage, including intentional torts, negligence, strict liability, nuisance, breach of warranty, misrepresentation, or any other theory of liability. Suits to recover compensation for emotional distress or consortium are considered to be suits to recover compensation for personal injury. The adoption of comparative responsibility undermines somewhat the rationale for refusing to recognize plaintiff's negligence as a defense to intentional torts and strict products liability because the defense is no longer an absolute bar to a plaintiff's recovery. This is especially true in intentional torts when a defendant honestly but unreasonably believed its conduct was not tortious. Moreover, single lawsuits often contain several different bases of liability. It is desirable that a single system of apportionment apply to all such claims.

c. Special issues involving intentional torts. Intentional invasion of a plaintiff's legally protected interests presents special problems of apportionment. These concerns are strongest in cases where an alleged intentional tortfeasor contends that the plaintiff's own conduct was unreasonable. 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., §§ 22, 24. The basic concept is that liability should be apportioned among all legally culpable actors according to proportionate shares of responsibility while affording appropriate redress to victims of intentional torts. This Restatement therefore applies to all bases of liability, including intentional torts, but provides courts with flexibility to fashion appropriate special rules for victims of intentional torts.

Traditionally, a plaintiff's negligence was not a defense to intentional torts. See Restatement Second, Torts § 481. Courts or legislatures adopting comparative responsibility systems generally ignored intentional torts. Including intentional torts raises two principal issues as well as subordinate ones. First, should a plaintiff's negligence reduce the plaintiff's recovery against an intentional tortfeasor? Second, when one of two or more defendants is liable for an intentional tort, should a percentage of responsibility be assigned to that tortfeasor? Such allocation could affect: (a) the plaintiff's own percentage and thereby reduce the plaintiff's recovery against other defendants, including nonintentional tortfeasors, (b) whether to impose joint and several liability on various defendants, (c) the allocation of responsibility to other defendants, (d) whether some other defendant should bear liability for responsibility assigned to the intentional tortfeasor, (e) the rules governing settlement, and (f) contribution and indemnity.

Although a few courts have held that a plaintiff's negligence 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 plaintiff's negligence is a defense to an intentional tort, it reduces but does not bar recovery. See § 7. When substantive rules of law provide that the plaintiff's negligence is not a defense to an intentional tort, the plaintiff's negligence is still a comparative defense to other, nonintentional torts. See § 28A, Comment e; § 28B, Comment e; § 28C, Comment e; § 28D, Comment i; § 28E, Comment g; § 33, Comment e.

In a multi-party lawsuit 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 other relevant person, including the plaintiff and any intentional tortfeasor, but special rules apply to these cases. Considerations in joint and several liability change when an intentional tortfeasor is involved. Section 22 provides that intentional tortfeasors are jointly and severally liable for a plaintiff's indivisible injury, even when joint and several liability has otherwise been abolished. Section 24 provides that a nonintentional tortfeasor is liable for the percentage of responsibility assigned to an intentional tortfeasor when the nonintentional tortfeasor has a special duty to protect against harm by the intentional tortfeasor. However, § 33, Comment e, permits the nonintentional tortfeasor to recover 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 plaintiff's negligence as a comparative defense, see § 7, preclude joint and several liability, see § 22, or preclude indemnity and contribution, see §§ 32, 33. These situations are addressed in § 7. Otherwise, the rules stated in this Restatement are applicable.

e. Other types of injuries. The policy considerations in apportioning liability generally apply in cases involving injuries other than personal injury or property damage. This Restatement accordingly may be referred to by analogy in suits for economic loss caused by breach of contract or warranty, fraud, misrepresentation, or nonmedical professional malpractice; suits by insureds or others against insurers for inappropriate claims settlement or defense practices; and suits for breach of fiduciary 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 not contemplate a right of contribution. See § 33. Conversely, the fact that a statutory cause of action does provide for a right of contribution argues for the application of joint and several liability.

f. Claims against employers for workplace injuries. Recovery from an employer for a 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 common-law cause of action or wrongful death statute is governed by this Restatement. The effect of an employer's responsibility in a suit against someone other than the employer is addressed in Topic 2.

REPORTERS' NOTE

Comment a. Nomenclature and issues addressed by this Restatement. Defining the scope of this Restatement has been one of the most important and difficult tasks. The basic idea is to leave "first-order" questions involving basic rules of liability, causation, and defenses to the applicable substantive law. Instead, this Restatement addresses "second-order" questions 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) and by widespread judicial and legislative activity on the issue of joint and several liability. The line between first-order and second-order issues has been difficult to maintain, however. Some first-order issues, such as what constitutes plaintiff's negligence, have been so dramatically affected by the shift to comparative responsibility that they have been included. Nevertheless, the distinction between first-order and second-order issues is a strong organizing principle for this Restatement.

Comment b. Bases of liability addressed by this Restatement. The bases of liability in this Comment are illustrative, not exhaustive.

Causes of action other than those for death, personal injury, or property damage are not part of the core to which comparative responsibility is directed. See Comment d. There is one exception, however. Some jurisdictions allow recovery for negligently caused economic harm in certain situations. See, e.g., People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 (1985); Mattingly v. Sheldon Jackson College, 743 P.2d 356 (Alaska 1987); Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir.1974). See generally Powers & Niver, Negligence, Breach of Contract, and the Economic Loss Rule, 23 Tex.Tech.L.Rev. 477, 485 (1992). When such harm is caused by an accidental injury, the claim is similar to a claim for negligently caused property damage, and it may arise in a suit that also includes claims for death, personal injury, or property damage.Under those circumstances, the claims are governed by the rules stated in this Restatement.

Before comparative responsibility, most courts did not apply contributory negligence as a defense in strict products liability. Comment n of Restatement Second, Torts § 402A provided that assumption of risk was a defense to strict products liability but that a plaintiff's mere negligent failure to discover or guard against the existence of a product defect was not a defense. Comment n was silent about a plaintiff's negligence that was more than a mere failure to discover or guard against a product defect but that did not rise to the level of assumption of risk. Some courts held that this type of negligence was not a defense to strict products liability. See, e.g., McCown v. Int'l Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975).

Most states now apply their comparative responsibility system to strict products liability. See, e.g., Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978); Butaud v. Suburban Marine & Sporting Goods,Inc., 555 P.2d 42 (Alaska 1976); Colo.Rev.Stat. § 13-21-111 (1987); Kinard v.Coats Co., 37 Colo.App. 555, 553 P.2d 835 (1976); Tex.Civ. Practice & Remedies Code, ch. 33 (1987). See also Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir.1998) (breach of warranty). Most states hold at least that a plaintiff's negligence which constitutes more than a mere failure to discover or guard against a product defect supports the factfinder's assigning a percentage of responsibility to the plaintiff. See, e.g., Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). Other jurisdictions have gone further to hold that all forms of plaintiff negligence are relevant for a factfinder's assigning a percentage of responsibility to the plaintiff. See, e.g., Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir.1977). This position is now the rule in Restatement Third, Torts: Products Liability § 13.

When most courts or legislatures adopted comparative responsibility systems, the systems did not apply to intentional torts. See, e.g., Tex.Civ. Practice & Remedies Code, ch. 33 (1987). Nevertheless, leaving intentional torts out of a comparative responsibility system can create problems. In a multi-party suit involving negligent tortfeasors and intentional tortfeasors, it would be cumbersome to have different apportionment systems apply to different parts of the same case. Consider a case in which one tortfeasor shoots the plaintiff at a convenience store, the convenience store is negligent for not having proper security, and a doctor aggravates the injury through malpractice. All three tortfeasors jointly caused the aggravated portion of the injury. It would be difficult to allocate responsibility for either the initial injury or the aggravation without using the same comparative responsibility system for all the tortfeasors.

Comparative responsibility has a different underlying logic than the classical structure of tort law. Tort law traditionally has been structured along lines defined primarily by the type of injury the plaintiff suffers and the defendant's state of mind or culpability. The intellectual underpinning of this compartmentalized, tort-by-tort approach is that, when types of injuries change and states of mind or culpability change, the policy concerns of tort law also change. When a defendant intentionally invades a plaintiff's rights, it makes sense to have different defenses, different rules about damages, and so on, than when a defendant is merely negligent or, in strict liability, is innocent. Historical reasons and pure fortuity also have influenced the structure of tort law and the available defenses, but the structure can be justified only by an argument that different torts--different types of injuries and different states of mind--evoke different policy concerns.

Comparative responsibility and comparative contribution raise a somewhat different set of concerns. When several actors cause a single injury, comparative responsibility asks a court to treat the injury as a unit and compare the contributions of the various actors. This creates tension with the compartmentalized structure of tort law, which divides cases according to causes of action. To the extent that courts compare all of the actors in a single set of percentages, they often have to forego having different apportionment rules apply to parties who commit different torts.

The difference in policy concerns surrounding different causes of action remains important, especially causes of action that differ according to the defendant's state of mind. Courts should not merely rely on ease of administration,in the sense of judicial time and effort, to disregard important policy differences among different torts. Nevertheless, a litigation system must be workable. It does little to advance underlying policy goals to have a system that is too complex for trial courts and jurors--who in the last analysis are linchpins in our litigation system--to implement. Thus, the rules stated in this Restatement often reflect compromises between the particular policy goals of the individual torts and the general goal of workability.

Comment c. Special issues involving intentional torts. There is an intuitive sense that a plaintiff's own failure to use reasonable care should not affect a plaintiff's recovery against an intentional tortfeasor. This intuition draws on the image of a mugger who claims that the victim was negligent for being out too late at night or wearing too much jewelry. In other situations, however, the intuition to reject a plaintiff's negligence as a comparative defense might not be as strong, such as when a defendant who otherwise batters a plaintiff honestly but unreasonably believes the conduct was privileged or that it was not harmful or offensive (such as when a defendant intentionally exposes a plaintiff to a pollutant that the defendant honestly but unreasonably believes is not harmful). Sometimes the plaintiff's own conduct is intentional. Moreover, the factfinder can take the degree of intentionality or even deliberateness of the tortfeasor's conduct into account when assigning percentages of responsibility to the various parties. See § 8(f).

Courts can also develop substantive liability rules, often called "no duty" rules, to cover certain types of plaintiff conduct, such as a claim that a victim of a sexual assault dressed provocatively, a claim involving domestic violence, or a claim by the mugging victim mentioned above. See §§ 3, 8. Courts have spent a great deal of time and energy developing similar rules with respect to a defendant's conduct in negligence. Because most courts have not applied comparative responsibility to intentional torts, they have not had the opportunity to develop similar rules for plaintiffs who encounter a defendant's intentional conduct. Courts can even adopt substantive rules of liability to protect against having a plaintiff's conduct reduce his or her recovery from intentional tortfeasors but nevertheless have the same conduct reduce the plaintiff's recovery against other, nonintentional tortfeasors.

Applying comparative responsibility to intentional torts is not the majority rule, but it commands significant support among courts that have addressed the question, especially in cases apportioning damages among defendants. Much of this growing support is in cases involving a comparison of defendants' responsibility, not a comparison of a defendant with a plaintiff. See Rosh v. Cave Imaging Systems, Inc., 32 Cal.Rptr.2d 136 (Cal.Ct.App.1994) review denied, 1994 Cal. LEXIS 5638 (Oct. 13, 1994) (comparing negligent security guards with assailant); Blazovic v. Andrich, 590 A.2d 222 (N.J.1991) (comparing negligence of plaintiff in provoking fight with negligent bar owner for failure to provide adequate lighting and intentional tortfeasors who started fight); Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712 (La.1994) (leaving application of comparative responsibility to intentional and negligent defendants to trial court's discretion and affirming the trial court's decision not to do so); Reichert v. Atler, 875 P.2d 379 (N.M.1994) (comparing negligence of defendant bar owner in failing to provide adequate security with assailant); Scott v. County of Los Angeles, 32 Cal.Rptr.2d 643 (Ct.App.1994) (comparing intentional tortfeasor with negligence of defendant social care worker), review denied, 1994 Cal. LEXIS 5603 (Oct. 20, 1994); Pamela B. v. Hayden, 31 Cal.Rptr.2d 147 (Ct.App.1994) (comparing negligence of property owner and landlord with intentional rape by nondefendant), review granted, 33 Cal.Rptr.2d 568 (1994), review dismissed, 38 Cal.Rptr.2d 345 (1995); Weidenfeller v. Star and Garter, 2 Cal.Rptr.2d 14 (Cal.Ct.App.1991) (comparing defendant's negligence with fault of intentional tortfeasor); Martin v. United States, 984 F.2d 1033 (9th Cir.1993) (applying California law) (comparing negligent day-camp supervisor with rapist); Torres v. State of New Mexico, 894 P.2d 386 (N.M.1995) (holding that if policeman found negligent his fault should be compared with assailant); Field v. Boyer, 952 P.2d 1078 (Utah 1998) (comparison of negligent and intentional parties is acceptable, but only with those parties named in the suit, or immune from suit); Steele v. Kerrigan, 689 A.2d 685 (N.J.1997) (comparing negligent defendant with intentional assailant); Hutcherson v. City of Phoenix, 1998 WL 351098 (Ariz.1998) (comparing negligent and intentional defendants); McKillip v. Smitty's Super Valu, Inc., 945 P.2d 372 (Ariz.Ct.App.1997), review denied (allowing comparison of negligent defendant store and customer who intentionally threw object on the floor, causing plaintiff to fall); Muse v. Dunbar, 1998 WL 300127 (La.Ct.App.1998), writ denied (comparison of fault between negligent and intentional tortfeasors); Ozaki v. Ass'n of Apartment Owners of Discovery Bay, 954 P.2d 644 (Haw.1998) (comparison of negligent property owner and intentional tortfeasor); Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky.Ct.App.1998) (comparing negligent and intentional tortfeasors); Siler v. 146 Montague Associates, 228 A.D.2d 33, 652 N.Y.S.2d 315 (1997), appeal dismissed on jurisdictional grounds (Sept. 18, (1997) (allowing comparison of negligent property owner and intentional assailant). But see Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997) (holding that negligence of defendant should not be compared with intentional tortfeasor if defendant had a duty to prevent the intentional acts); Kansas State Bank & Trust Co. v. Specialized Transportation Services, 819 P.2d 587 (Kan. 1991) (preventing comparison of negligent defendant to intentional tortfeasor when defendant had duty to prevent intentional harm); Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla.Dist.Ct.App.1996) (interpreting a statute and refusing to compare intentional tortfeasor and negligent property owner when property owner had duty to prevent rape); Stellas v. Alamo Rent-A-Car, Inc., 702 So.2d 232 (Fla.1997) (holding that it was error to compare negligence of defendant with intentional assailants); Prime Hospitality Corp. v. Simms, 700 So.2d 167 (Fla.Dist.Ct.App.1997), review dismissed (refusing to compare negligent defendant and perpetrator); Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla.1997), reh'g denied (refusing to apply comparative fault when the suit is "based on an intentional tort"); Bencivenga v. J.J.A.M.M., Inc., 609 A.2d 1299 (N.J.Sup.Ct.1992), cert. denied (negligence of defendant dance club may not be compared with unknown intentional tortfeasor); Cortez v. University Mall Shopping Center, 941 F.Supp. 1096 (D.Utah 1996), overruled by Field v. Boyer, 952 P.2d 1078 (Utah 1998); Uniform Contribution Among Tortfeasors Act, § 1(c).

Some of the support, however, is in cases comparing a plaintiff's responsibility with that of an intentional defendant. See Comeau v. Lucas, 455 N.Y.S.2d 871 (N.Y.App.Div.1982) (comparing disruptive behavior of plaintiff with intentional assault by defendant); Bisaillon v. Casares, 798 P.2d 1368 (Ariz.Ct.App.1990) (comparing defendant's intentional tort, other defendant's negligence, and plaintiff's fault), review denied, Oct 23, 1990; Bonpua v. Fagan, 602 A.2d 287 (N.J.Super.Ct.App.Div.1992) (comparing negligence of plaintiff in provoking fight with defendant's intentional battery); Barth v. Coleman, 878 P.2d 319 (N.M.1994) (comparing negligence of plaintiff with negligence of defendant and intentional assault by other); Morris v. Yogi Bear's Jellystone Park Camp Resort, 539 So.2d 70 (La.Ct.App.1989) (comparing intentional rapist with negligence of 13-year-old victim). But see McLain v. Training and Development Corp., 572 A.2d 494 (Me.1990) (refusing to compare defendant's responsibility for assault and battery with contributory negligence of plaintiff); Kelzer v. Wachholz, 381 N.W.2d 852 (Minn.Ct.App.1986) (refusing to compare fault of plaintiff with intentional trespasser); Tratchel v. Essex Group, Inc., 452 N.W.2d 171 (Iowa 1990) (refusing to compare negligence of plaintiff with intentional tort of fraud); Cartwright v. Equitable Life Assurance Society, 914 P.2d 976 (Mont.1996) (refusing to compare plaintiff's negligence with defendant's fraud); Hattori v. Peairs, 662 So.2d 509 (La.Ct.App.1995), writ denied (refusing to compare negligence of the victim with intentional tort of defendant). See also Hickey v. Zezulka, 487 N.W.2d 106 (Mich.1992) (comparing intentional plaintiff compared with negligent defendant). There is also scholarly support for applying comparative responsibility to intentional torts. See Sisk, Comparative Fault and Common Sense, 30 Gonz.L.Rev. 29 (1994-95); McNichols, Should Comparative Responsibility Ever Apply to Intentional Torts, 37 Okla.L.Rev. 641 (1984); Dear & Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L.Rev. 1 (1984); Sobelsohm, Comparing Fault, 60 Ind.L.J. 413, 442 (1985).

Some courts that have applied comparative responsibility to cases involving intentional tortfeasors have hedged by giving trial courts or appellate courts discretion to decline to do so in cases in which it would produce an unfair result. See, e.g., Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712 (La.1994); Green v. USAA Casualty Ins. Co., 668 So.2d 397 (La.Ct.App.1996). Other courts have used their normal power to set aside unreasonable verdicts to guard against unfair results. See Scott v. County of Los Angeles, 32 Cal.Rptr.2d 643 (Ct.App.1994). Moreover, the problem of an

unfair result is most acute when the intentional tortfeasor is insolvent, the negligent tortfeasor was supposed to protect the plaintiff against the intentional tortfeasor, and the negligent tortfeasor is not jointly and severally liable. That problem is addressed in § 25.

Notwithstanding this development, however, this Restatement does not take a position on whether plaintiff's negligence is a comparative defense to intentional torts. That issue is left to substantive law. This Restatement does, however, apply its system of comparative responsibility to apportion liability among intentional and negligent defendants.

Comment d. Exceptions. The policies underlying certain statutory causes of action may be incompatible with applying plaintiff's negligence as a percentage defense or with other rules stated in this Restatement. See, e.g., Boyler v. Hamilton, 235 Cal.App.2d 492, 45 Cal.Rptr. 399 (1965) (child labor statute); Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (1973) (sale of dangerous product to minors); Soronen v. Olde Milford Inn, 202 A.2d 208 (N.J.Super.Ct.App.Div.1964) (sale of dangerous product to minors); Gowins v. Pennsylvania Railroad Co., 299 F.2d 431 (6th Cir.), cert. denied, 371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962) (Federal Safety Appliance and Boiler Inspection Act); Wells v. Coulter Sales, Inc., 306 N.W.2d 411 (Mich.Ct.App.1981) (workplace safety statute).

Comment e. Other types of injuries. The rules and principles embodied in this Restatement should influence the resolution of similar issues for other bases of liability. This is especially true when a statutory cause of action calls for courts to develop common-law principles to fill in unanswered questions about apportionment of loss among multiple parties. See, e.g., Comerica Bank-- Detroit v. Allen Indus., Inc., 769 F.Supp. 1408, 1413-15 (E.D.Mich.1991) (CERCLA contribution); United States v. Western Processing Co., 756 F.Supp. 1424, 1429-32(W.D.Wash.1991) (CERCLA contribution); Lyncott Corp. v. Chemical Waste Management, Inc., 690 F.Supp. 1409, 1416-20 (E.D.Pa.1988) (CERCLA contribution); Franklin v. Kaypro Corp., 884 F.2d 1222, 1229-32 (9th Cir.1989), cert. denied, 493 U.S.1024 (1990) (Securities Exchange Act); Singer v. Olympia Brewing Co., 878 F.2d 596, 599-601 (2d Cir.1989), cert. denied, 493 U.S. 1024 (1990) (Securities Exchange Act); Dodson v. Camden, 705 F.2d 759, 768-71 (5th Cir.1983) (Civil Rights Act), rev'd on other grounds, 725 F.2d 1003 (5th Cir.1984); Miller v. Apartment & Homes, Inc., 646 F.2d 101, 105-10 (3d Cir.1981) (Civil Rights Act); In re Masters Mates & Pilots Pension Plan & IRAP Litig., 957 F.2d 1020, 1026-32 (2d Cir.1992) (ERISA); Donovan v. Robbins, 752 F.2d 1170, 1180-81 (7th Cir.1984) (ERISA); FDIC v. Geldermann, Inc., 975 F.2d 695 (10th Cir.1992) (Federal Deposit Insurance Act); Resolution Trust Corp. v. Gallagher, 815 F.Supp. 1107, 1110-12 (N.D.Ill.1993). See generally Kornhauser & Revesz, Settlements Under Joint and Several Liability, 68 N.Y.U.L.Rev. 427, 430-32 (1993); Di Cola, Fairness and Efficiency: Allowing Contribution Under ERISA, 80 Cal.L.Rev. 1543, 1548-53 (1992); Adamski, Contribution and Settlement in Multiparty Actions Under Rule 10b-5, 66 Iowa L.Rev. 533 (1981); Davis, Comment, Multiple Defendant Settlements in 10b- 5: Good Faith Contribution Bar, 40 Hastings L.J. 1253 (1989); Boomgaarden & Breer, Surveying the Superfund Settlement Dilemma, 27 Land & Water L.Rev. 83 (1992); Cross, Settlement Under the 1986 Superfund Amendments, 66 Or.L.Rev. 517 (1987); Mason, Contribution, Contribution Protection, and Nonsettlor Liability Under CERCLA: Following Laskin's Lead, 19 B.C.Envtl.Aff.L.Rev. 73 (1991); Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl.L. 549 (1995); Note, Superfund Settlements: The Failed Promise of the 1986 Amendments, 74 Va.L.Rev. 123 (1988).

Nevertheless, special policy considerations may affect statutory causes of action and other common-law causes of action. Moreover, some of these other causes of action may not be presented in company with claims based on other legal principles with as much frequency as do other causes of action. Thus, the rationale discussed in Comment c may or may not be applicable to these other causes of action. For example, the vast majority of courts interpret the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-75 (1995) ("CERCLA"), despite any explicit statutory language addressing the matter, to impose joint and several liability for indivisible harm when the United States is the plaintiff. See O'Neil v. Picillo, 883 F.2d 176, 178-80 (1st Cir.1989); B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996); United States v. Alcan Aluminum Corp., 990 F.2d 711, 721-22 (2d Cir.1993); United States v. Monsanto Co., 858 F.2d 160, 171-73 & n. 23 (4th Cir.1988) ("While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of indivisible harm."); United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th Cir.1989); United States v. Dico, Inc., 979 F.Supp. 1255, 1259 (S.D.Iowa 1997); United States v. Chem-Dyne Corp., 572 F.Supp. 802, 808 (S.D.Ohio 1983) (scope of liability under CERCLA to be determined according to ""traditional and evolving principles of common law"). Most courts rely on the Restatement Second of Torts § 433A(1)(b) to determine whether there is a reasonable basis to divide the costs of clean up based on the contribution of each liable party, thereby permitting apportionment on a causal basis.See United States v. Township of Brighton, 153 F.3d 307 (6th Cir.1998) (discussing what constitutes a "reasonable basis" for causal apportionment); United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir.1993); United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir.1989). A few courts have adopted a more liberal, equitable apportionment rule. See United States v. A & F Materials Co., 578 F.Supp. 1249 (S.D.Ill.1984). See generally Lynda J. Oswald, New Directions in Joint and Several Liability under CERCLA?, 28 U.C. Davis L.Rev. 299 (1995) (surveying cases imposing joint and several liability and decisions on apportionment based on causation).

In addition to CERCLA, a number of courts have adopted joint and several liability for other federal environmental statutes. See United States v. Valentine, 856 F.Supp. 627, 633 (D.Wyo.1994) (Resource Recovery and Conservation Act, 42 U.S.C. § 6973); United States v. Hollywood Marine, 519 F.Supp. 688, 692 (S.D.Tex.1981) (Clean Water Act, 33 U.S.C. § 2702).

Comment f. Claims against employers for workplace injuries. Suits under workers' compensation statutes to recover from an employer for workplace injuries are an example of a special cause of action that implicates distinct policies. Moreover, claims based on workers' compensation statutes do not often occur in hybrid cases involving the causes of actions. See Comment b. Claims based on workers' compensation statutes typically are adjudicated in a separate lawsuit or administrative proceeding and are governed by rules that do not consider the culpability or responsibility of the parties. Thus, they are not governed by the rules stated in this Restatement. In the infrequent cases when suits against employers for workplace injuries are governed by common-law causes of action or ordinary wrongful death statutes, the rules stated in this Restatement are applicable.

FNa. As of the date of publication, this Draft has not been considered by the members of The American Law Institute and does not represent the position of the Institute on any of the issues with which it deals. The action, if any, taken by the members with respect to this Draft may be ascertained by consulting the Annual Proceedings of the Institute, which are published following each Annual Meeting.