By Dr. Gary Deel, Faculty Director, School of Business, American Military University
I have written about how causation in negligence is more complicated than it appears. I described how there are different kinds of causation and why there may be more than one cause responsible for a given set of damages. But one point that still needs to be addressed on that topic is: What happens when more than one party is responsible for damages to a victim? How do you determine accountability?
There are really two different potential scenarios with a question like this. One is when a victim suffers harm at the hands of two or more negligent parties; the other is when the victim himself is partially responsible for his own harm.
The first scenario is rather straightforward, but comes with a few caveats. If two or more people are responsible for harming a victim, then to the extent that their individual accountability can be parsed, they would each be liable for their own portion of the inflicted harm.
For example, in the earlier causation article, I related a hypothetical story about playing with a valuable mug that belongs to you, and through my negligence I drop and break it. I then describe a circumstance where you are injured by stepping on a broken shard of the mug and cutting your foot. But later at the hospital, a doctor negligently treats your foot, which results in an infection that leads to an amputation.
In such a scenario, I would likely be found liable for damages associated with the value of the mug that I broke, and perhaps some compensation for the cut you sustained to your foot, to the extent that such an event was foreseeable. But the doctor, on the other hand, would accordingly be on the hook for his part in making the situation worse and causing the needed amputation of your foot.
Accountability Can Be Difficult to Determine
But what if the different aspects of the harm were not so easy to distinguish? For example, what if someone else and I were playing when your mug was broken? Perhaps we were tossing it back and forth and we couldn’t determine whether it was my bad throw or his bad catch that was responsible for the accident. In this kind of scenario, many courts would invoke something called “joint and several liability.” Essentially that is when the court decrees that both parties are entirely liable for the total damages as a collective whole.
This is designed with the victim’s compensation in mind. What this means is that you may seek full redress from me or from my accomplice, or from both of us together. And if either of us doesn’t have the financial means to pay you, the other one is on the hook for up to and including the entire cost. The negligent parties can argue between themselves about who should owe which portion. They can even sue each other if they feel that the total payment to the victim was not fairly shouldered between them. But the victim doesn’t have to worry about those details, and that’s the point.
Determining the Victim’s Accountability in the Harm
But what happens if the victim has a hand in his own misery? For example, in the mug story, it could certainly be argued that you should have been more careful watching where you were walking; if you had been, you might never have cut your foot, avoiding all of the subsequent harm that would have ensued.
A court would consider such arguments, but the amount of recovery to which the victim might be entitled would ultimately be determined by whether the court follows the contributory negligence or the comparative negligence doctrine.
Historically, the majority of early courts followed the contributory negligence doctrine. That basically means that, if a victim contributes to the damage through his own negligence — even if the victim’s fault is tiny compared with that of others — he cannot recover anything.
This was based on the idea that apportioning blame would be far too tedious and subjective a process for a court to take on. So a simpler blanket rule was adopted: If you were responsible for your injuries, even slightly, then you get nothing. So in our coffee mug example, you would be completely out of luck.
Obviously, however, the contributory rules have harsh implications on real-world scenarios. For example, imagine you are t-boned at an intersection by a drunk driver, causing massive injuries to you. However, in court the drunk driver’s attorney presents evidence that you were not wearing your glasses at the time. Your vision isn’t terrible and you don’t really need your glasses all the time. So it’s unlikely that wearing them could have prevented this accident.
But if this case were heard in a contributory negligence jurisdiction, you might be precluded from any recovery at all. That decision would be based on the notion that there was a chance — however slight —that you might have been able to avoid the accident or mitigate the damages had you been wearing your glasses. And this would be irrespective of the massive fault lying at the feet of the drunk driver. Because of this tremendous unfairness, most courts today have abandoned the contributory negligence doctrine in favor of comparative negligence.
Under comparative negligence rules, courts take up the difficult task of apportioning blame and accountability and meting out recovery according to those proportions. This work is obviously very complicated, but courts do their best to try to quantify liability in percentages of the total harm caused. So in the car accident scenario, the court would try to assess how responsible the drunk driver was for the injuries versus how responsible you were, and then award damages accordingly.
In our coffee mug example, a court might determine that I was 60 percent responsible for your foot injury by dropping the mug, while you were 40 percent responsible by not paying attention to where you were walking. So if your total damage amount was, say, $100,000, you would only be entitled to recover $60,000 from me — the portion that I was determined to be culpable for.
It’s worth noting that some jurisdictions follow what is called a modified comparative negligence doctrine, which is sort of a hybrid between contributory and comparative rules. Under the modified comparative negligence doctrine, blame is still apportioned as it is in a regular comparative negligence jurisdiction. But if the victim is found to be more than 50 percent at fault for his own injuries, then he cannot recover anything. The underlying philosophy here is that, if you are mostly to blame for your own suffering, you should not be entitled to compensation from others.
Accountability in the legal system is indeed a complicated affair. But through careful assessment of the circumstances, we can work out a fairly precise prescription for who is owed what, and this analysis is a fundamental component of a just legal system.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a JD in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.
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