generally able to adjust the price he demands for participating in the enterprise: the creditor can demand a higher interest rate; the guarantor a higher fee; and the investor a lower share price or higher dividend. Surely the reasonably foreseeable class of plaintiffs in these cases are less in need of a joint and several rule than the victims of unreasonably dangerous product defects.
Dean Wade and Professor Richard Wright argue strenuously against abrogating the joint and several rule. Ultimately both writers return for support to the concept that the tortfeasor should be responsible for all the consequences of his act when it is the proximate cause of an indivisible injury.(n226) This notion identifies tort liability with causation. Comparative fault principles, however, predicate liability on measuring relative culpability. Culpability or fault or responsibility, unlike causation, can readily be apportioned and allocated.(n227) The process requires an intuitive weighing and balancing of factors,(n228) but by and large it is a process that has met with acceptance. Causation is an essential element of every tort claim, but under comparative fault, once proximate cause is established, causal weight becomes but one factor in the apportionment of damages. To say that "'every fair-minded person agrees: a person should pay for damages he has caused, but not for damages he has not caused,"'(n229) confuses the issue. The better rule would be that a person should pay for damages for which he is found culpable, but no more than that.(n230)
One writer has pointed out that retention of joint and several liability in a comparative fault jurisdiction unfairly favors plaintiffs over defendants.(n231) Dean Wade's response to this was that "[t]he doctrine of several liability on the basis of fault does exactly the same thing, except that it favors the defendants over the plaintiff; since it always imposes the responsibility of an uncollectible allocation on the plaintiff, regardless of whether or not he is at fault."(n232) Wade's observation suggests that focusing on questions of fairness may be misplaced. Powerful fairness arguments can be mounted both in favor or against retention of joint and several rules. If the equities appear fairly balanced, as here, perhaps we should focus on whether a several liability rule change that benefits defendants will maximize social utility or wealth more than retaining the joint and several rule that benefits plaintiffs. First, however, there are two doctrinal problems involving comparative fault that have to be resolved.
Two Doctrinal Problems
Apportionment of damages among multiple tortfeasors for indivisible injuries generally requires the existence of a comparative fault system embodying comparative contribution. Without such a system, there is generally no legal basis for such apportionment, and joint and several liability will be applied. Although actions for contribution or indemnity may be permitted, these will be of no benefit to solvent tortfeasors if brought against insolvent co-defendants. Thus, for a several only rule to be effective, the trier of fact must be permitted to assess each party's percentage of fault in order to set the limit of that party's liability.
But even with the adoption or enactment of comparative fault, there may be certain types of conduct that are not within the scope of the jurisdiction's system. For example, in some jurisdictions strict liability cases are excluded from comparison. In the negligence realm, in which we find the auditor cases, there are two interrelated doctrines which if not modified, would restrict the application of comparative fault principles.