X hits on this document





68 / 90

158, at 1186 ("Each tortfeasor, on the other hand, was a tortious, actual, and proximate cause of the plaintiff's entire injury and thus bears independent full responsibility for the injury.").

(n227) See supra note 193 on the theory of comparative causation using the probalistic marginal product as a methodology. For other methods, see Leonard Schwartz, The Many Meanings of Comparative Fault: An Economic Analysis of Alternative Methods of Apportioning Liability, 17 N.C. CENTRAL L. REV. 191 (1988).

(n228) How then does the trier of fact set about to apportion damages among the parties? There is, of course, a difference between the apportioning process when undertaken by judge rather than jury. The judge is presumably more versed in the law of evidence and is therefore better able to determine the probative weight to give the facts; she is also more experienced and thus more familiar with how similar apportionments have been resolved in the past; she is aware of the legal consequences of the apportionment ratios; and she need not concern herself with the need to compromise with other fact finders.

However, both judge and juror have to find a starting point. We suspect that the normal inclination is to determine first whether there are any parties before the court without fault. In the jury context, this determination should probably be resolved before going further. Having eliminated the innocent, a reasonable approach, we think, would be next to assign, as a first approximation, pro-rata allocations, then step back mentally and see how comfortable the fit is. It is at this point that true comparison begins. Serious anomalies are quickly manifested as it becomes clear to the triers that A's responsibility for the harm is not equal to B's because it is demonstrably more or less.

For a second approximation it would probably be natural to categorize the various parties' conduct as "slightly," "considerably," or "greatly" responsible for the harm (or some similar verbal formula). Jurors will probably offer reasons why they favor one categorization for a party over another. Their reasoning may or may not persuade others, but it will certainly prove difficult to go forward until this rough

cut is taken and agreed to. The final stage, presumably, will be that of fine tuning (and compromise, if necessary) within the confines of a 100% limit.

Is this how the process really works? We would urge researchers to try to find out, because it is a fascinating question. Should the process always yield roughly the same percentages with similar facts? This result seems likely only to the extent that values are universal and shared throughout society. Inasmuch as the United States is a particularly heterogeneous society, we should expect considerable variation in the apportionment results from case to case and jury to jury. Is this fair? The parties have subjected their dispute to litigation, thus, they are entitled to an orderly process in which fairly chosen triers of fact weigh the evidence and offer their best judgment in good faith. The parties can expect no more than that.

(n229) Wade, supra note 158, at 203 (quoting Guy, supra note 201, at 6).


Document info
Document views325
Page views325
Page last viewedSat Jan 21 18:38:37 UTC 2017