Comparative Fault

1. Comparative Fault

2. The Simplest C-fault Case Use the facts of Prob. 24 (431). But simplify. Geyer =$10,000 harm Moreland = none P (Geyer) sues D (Moreland) D (Moreland) claims that P (Geyer) was at fault, too.

3. If the jury allocates fault as follows, what judgment will court give to Geyer? 1. D=100% at fault? $10,000 2. P=100% at fault? 0 3. P = 30%; D = 70%? $7,000 [NEW with c-fault] NOW A NEGLIGENCE P CAN RECOVER. QUARE: what implications for doctrines that assumed an INNOCENT P? 1. J&S (as between innocent P and negl Ds, let Ds fight out who pays what to P) q: get rid of J&S and make each D pay her % only? Only keep j&s, but only for combined D%? 2. Alt liability (as between 2 or more negligent Ds and innocent P, let them prove selves out or be j&s liable) Heck, P is now equally culpable and in fact could be causally more responsible than the D whose bullet never hit P.) 3. Concurrrent causation, too. Not worked out yet in most settings. We�ll look at J&S in this chapter.NOW A NEGLIGENCE P CAN RECOVER. QUARE: what implications for doctrines that assumed an INNOCENT P? 1. J&S (as between innocent P and negl Ds, let Ds fight out who pays what to P) q: get rid of J&S and make each D pay her % only? Only keep j&s, but only for combined D%? 2. Alt liability (as between 2 or more negligent Ds and innocent P, let them prove selves out or be j&s liable) Heck, P is now equally culpable and in fact could be causally more responsible than the D whose bullet never hit P.) 3. Concurrrent causation, too. Not worked out yet in most settings. We�ll look at J&S in this chapter.

4. 4. P = 70%; D = 30%? Under �pure�c-fault (UCFA & Missouri)? $3,000 Modified comparative fault? $0 why adopt �modified� comparative fault? 5. P = 50%; D = 50%? Pure? $5,000 Modified? in states that bar P if his fault �exceeds� D�s, G=$5,000 in states that bar P if his fault �equals or exceeds� D�s, G=$0. MODIFIED: fairness: just as negligent as D could be 99-1 or 90-10. D�s argument in pure states to avoid any liability? P=SUPERCEDING PROX. CAUSE. (emerging cases; 33(3) Loyola of LA Lrev. 887 (2000))MODIFIED: fairness: just as negligent as D could be 99-1 or 90-10. D�s argument in pure states to avoid any liability? P=SUPERCEDING PROX. CAUSE. (emerging cases; 33(3) Loyola of LA Lrev. 887 (2000))

5. Counterclaims Now assume that Moreland (D) counterclaims for $3,000 damage to his car. What result if the jury finds: 1. P(Geyer) = 100% at fault? P (Geyer) is awarded $0 D (Moreland) gets verdict for $3,000 2. D (Moreland) = 100% at fault? P = $10,000; D = $0 NOTE: Geyer is actually the DEF on the counterclaim.NOTE: Geyer is actually the DEF on the counterclaim.

6. Counterclaim: both at fault 1. P = 30%; D= 70% if Pure c-f (UCFA)? P = $7,000 (10,000 x 70%) D = $900 ($3,000 x 30%) Does Geyer get $6,100 or $7,000? if Modified c-f? (recall Idaho, p. 140) P= $7,000 D = $0 because 70%>30% 2. P = 60%, D = 40%? 3. P = 50%; D = 50% PURE: ucfa; Missouri; most court adoptoins MOD�D: many legis. Adoptions. #2: Pure: P +4,000; D = 1800 modif�d: P=barred bc 60%>40% D= 1,800 #3: pure = 50% each. Mod�f (exceeds) = same Mod�d(equals) = neither recover!PURE: ucfa; Missouri; most court adoptoins MOD�D: many legis. Adoptions. #2: Pure: P +4,000; D = 1800 modif�d: P=barred bc 60%>40% D= 1,800 #3: pure = 50% each. Mod�f (exceeds) = same Mod�d(equals) = neither recover!

7. Multiple Defendants Assume that Geyer sues BOTH South End and Moreland. No counterclaim by Moreland do that variation on your own!

8. P=10%; Moreland = 30%; SE = 60%. What judgment will P get against Moreland? if joint and several liability? $90,000 judgment against each D. How much contribution can M get from SE? if proportional per UCFA & jud. trend = 60%($6,000) if pro rata (e.g., MO contrib. Statute) =1/2($4,500)

9. if several liability, like Utah? M = $3,000; SE = $6,000 any contribution from M by SE? No why adopt several liability?? What if M is insolvent? if modified j & s? states vary example (MO malpractice): (D is jointly liable only for equal or less liable Ds). Judgment here? P gets award of $3,000 against M award against SE? judgment of $9,000 SEVERAL LIABILITY? No longer an innocent P, so less reason to favor P over the solvent Ds. IF M = INSOLVENT? Loss is born by P (who is no longer innocent? Unfair if D is more culpable? See UCFA) MODIFIED J&S: Missouri malpractice reform statute is like this\ Idaho? (p.140) several liability (with a few exceptions) SEVERAL LIABILITY? No longer an innocent P, so less reason to favor P over the solvent Ds. IF M = INSOLVENT? Loss is born by P (who is no longer innocent? Unfair if D is more culpable? See UCFA) MODIFIED J&S: Missouri malpractice reform statute is like this\ Idaho? (p.140) several liability (with a few exceptions)

10. Multiple Ds--The �Unit� Rule P = 40%; Moreland = 20%; SE = 40% P is entitled to what judgment against SE? Pure with j & s? $6,000 Pure with �several� only? $4,000

11. Modified c-f with j & s? if �Unit� rule (maj), compare P to total % assigned to all Ds: P= $6,000 from SE if no unit rule, then compare P to each D in �exceeds� bar states, P gets $6,000 from SE but none from M bc P�s fault exceeds M�s if state bars �equally� culpable P, P gets none from SE or M. Modified c-f with several liability? with unit rule, $4,000 from SE; 2,000 from M if no unit rule, under �exceeds� bar, $4,000 from SE ($0 from M) under �equals� bar, none from either D.