The Logic and Fairness of Joint and Several Liability
![handle is hein.journals/umem23 and id is 55 raw text is: The Logic and Fairness of Joint and
Several Liabilityt
RICHARD W. WRIGHT*
INTRODUCTION
In McIntyre v. Balentine,1 the Supreme Court of Tennessee
adopted a regime of modified comparative responsibility for negli-
gence actions.2 In so doing, the court removed Tennessee from the
dwindling handful of states that have failed to repudiate the common
law rule whereby the contributory negligence of the plaintiff, no
matter how slight, formally barred the plaintiff from recovering any
damages from a defendant who negligently caused the plaintiffs
injury.3
t 0 1992, 1993 Richard W. Wright. All rights reserved. Permission is hereby granted to
copy as long as appropriate citation is made to this publication.
* Professor of Law and Norman and Edna Freehling Scholar, Illinois Institute of Technol-
ogy, Chicago-Kent College of Law. This Article incorporates materials from previous articles.
See Richard W. Wright, Allocating Liability Among Multiple Responsible Causes: A Princi-
pled Defense of Joint and Several Liability for Actual Harm and Risk Exposure, 21 U.C.
DAVIS L. REV. 1141 (1988) [hereinafter Wright, Allocating Liability]; Richard W. Wright,
Throwing Out the Baby with the Bathwater: A Reply to Professor Twerski, 22 U.C. DAVIs L.
REV. 1147 (1989) [hereinafter Wright, Reply]; Richard W. Wright, Understanding Joint and
Several Liability, 2 SHEPARD'S ILL. TORT REP. 278 (1991) [hereinafter Wright, Illinois]. I
received financial support for this Article from the Marshall D. Ewell Research Fund of the
Chicago-Kent College of Law.
1. 833 S.W.2d 52 (Tenn. 1992).
2. Id. at 56-57. The court uses the term comparative fault, which is adequate for negli-
gence actions but inappropriate for strict liability actions, in which the conceptually confused
term comparative causation sometimes is substituted. The best term, for both negligence
and strict liability actions, is comparative responsibility. See Wright, Allocating Liability,
supra note *, at 1143-46.
3. Only Alabama, Maryland, North Carolina, and Virginia have yet to shift to compara-
tive responsibility, and the Alabama Supreme Court has indicated it is prepared to make the
shift. See McIntyre, 833 S.W.2d at 55 & n.2. In Tennessee, as in other jurisdictions, the
harshness of the contributory negligence bar was substantially lessened by formal offsetting
doctrines and, often, by judges' and juries' lenient application of the contributory negligence
bar and other doctrines to permit (full or reduced) recovery in appropriate cases. See id. at 54;
Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for
Tennessee, 57 TENN. L. REV. 199, 208-27 (1990); infra text accompanying notes 71-74.](ViewImageLocal?handle=hein.journals/umem23&div=13&collection=&method=preview&ext=.png&size=3)
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The Logic and Fairness of Joint and Several Liability
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