About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

17 Ind. L. Rev. 903 (1984)
Comparative Fault and the Nonparty Tortfeasor

handle is hein.journals/indilr17 and id is 925 raw text is: Comparative Fault and the Nonparty Tortfeasor LEONARD E. EILBACHER* I. INTRODUCTION The cornerstone principle of a comparative fault system is that each person who contributes to cause an injury must bear the burden of reparation for that injury in exact proportion to his share of the total fault which contributed to cause the injury. However, as the trial lawyer is often reminded, all the tortfeasors are not always in court. That is, for the variety of reasons discussed below, often not all of the tortfeasors are joined as parties to the suit for damages for the injury. Nevertheless, in order to achieve a fair distribution of the financial burden in a true comparative fault system, it is imperative that the fault of all culpable actors, whether or not they are parties to the legal action, be measured and assigned. To the extent that a given legal system ignores the fault of any tortfeasor, and shifts the financial burden from one culpable person to another, the fundamental principle of comparative fault is compromised. Thus, the manner in which a given comparative fault system addresses the issue of allocation of fault and responsibility for damages to the nonparty tortfeasor' provides the measure of fairness of that system of loss distribution. *Partner with the firm of Hunt, Suedhoff, Borror & Eilbacher-Fort Wayne, Indiana. B.S., Indiana University, 1962; J.D. Indiana University, 1965. 'A caveat is in order with respect to the use of the term tortfeasor in describing defendants and nonparties. The Indiana Comparative Fault Act does not use this term. In describing and evaluating a system of loss distribution which allocates a percentage of fault to a nonparty, with a commensurate reduction of plaintiff's recovery, one risks a clouding of the issues under consideration to refer to such nonparty as a tortfeasor. The term suggests a comparison between the conduct of an innocent plaintiff and a party tainted by the image of moral wrongdoing. It must be remembered that under comparative fault, the plaintiff also may be a tortfeasor, but may still have the right to recover. As one writer reminds us, the parties may be in pari delicto, and one simply is called a plaintiff because he won the race to the courthouse. Goldenberg & Nicholas, Comparative Liability Among Joint Tortfeasors: The Aftermath of Li v. Yellow Cab Co., 8 U. WEST L.A. L. REV. 23, 29 (1976). Thus, the analytical process must not favor one party to the legal action over another simply by reason of the label which the party or nonparty bears. All tortfeasors, be they plaintiffs, defendants, or nonparties, are entitled to equal consideration. However, the Supreme Court of California still insists on attaching the characteristic of moral breach to a defendant's actions: Moreover, even when a plaintiff is partially at fault for his own injury, a plaintiff's culpability is not equivalent to that of a defendant. In this setting, a plaintiff's negligence relates only to a failure to use due care for his own

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most