Suppose your client, Jenny Smith, was raped by an intruder while staying at a resort hotel.

You file suit against the hotel, alleging negligence in providing security for hotel guests.

In response, the hotel seeks to join the rapist, who has been convicted and is serving a lengthy sentence. The hotel claims that comparative responsibility must be apportioned to the rapist in the event the hotel is held liable. The hotel claims that the plaintiff was negligent as well and that comparative responsibility must be assigned to her. The hotel claims that it is only liable for its proportionate share of the plaintiff’s damages.

Can the hotel limit its liability to a small fraction of the damages because of the rapist’s greater culpability?

Can the hotel reduce its liability on the basis of the plaintiff’s negligence?

Can the rapist?

Find the answers in…

The American Law Institute’s

Restatement of the Law Third,

Torts: Apportionment

of Liability

This landmark work responds to the nearly universal adoption of comparative liability and completely supersedes and significantly expands upon comparable provisions of the Institute’s Restatement Second of Torts.

The American Law Institute

www.ali.org

The American Law Institute’s

Restatement of the Law Third,

Torts: Apportionment of Liability

Restatement of the Law Third, Torts: Apportionment of Liability, constitutes the second portion to be published of The American Law Institute’s Restatement Third of Torts, superseding and significantly expanding upon the comparable provisions of Restatement Second, completed in 1979. This comprehensive new work formulates clear principles of law governing apportionment of liability in cases when account must be taken of conduct by more actors than a single plaintiff and single defendant; of different degrees of blameworthiness; of the effect on parties with derivative claims; or different tort claims (e.g. strict liability, negligence, and intent) against different defendants in the same case. Apportionment of liability applies to all claims (including law suits and settlements) for death, personal injury (including emotional distress or consortium), or physical damage to tangible property damage, regardless of the basis of liability.

The nearly universal adoption of comparative responsibility by American courts and legislatures has had a dramatic impact on traditional joint and several liability. Apportionment became a far more difficult problem when courts (and sometimes legislatures) abolished the defense of contributory negligence as an absolute bar to tortfeasor liability and replaced it with the doctrine of comparative responsibility, which now frequently requires the apportionment of plaintiff responsibility as well as that of defendants. Apportionment also presents challenging questions about the allocation of obligations among different insurers and other indemnitors and is further complicated when some, but not all, defendants agree to a settlement.

This innovative Restatement deals with many pertinent issues that have not been fully analyzed in judicial decisions or in academic literature and for which there is no commonly accepted doctrine, notably in Tracks A through E of Topic 2 (see the Abbreviated Table of Contents that follows). In those instances the text explores alternative bases on which issues might appropriately be resolved depending on the type of liability regime in force in a given jurisdiction. The work provides thoughtful and coherent guidelines designed to help in working through implications that have arisen or that can be foreseen, but that are not yet fully reflected in decided cases or enacted statutes.

Topic 1 sets forth the Basic Rules of Comparative Responsibility, which have a potential impact on almost all areas of tort law. Comparative responsibility requires courts to coordinate liability rules and defenses in ways that transcend the traditional boundaries separating various torts.

Topic 2, Liability of Multiple Tortfeasors for Indivisible Harm, concerns the apportionment of damages among multiple tortfeasors and the plaintiff when more than one tortfeasor is liable for an indivisible injury to the plaintiff. To provide assistance to courts and lawyers confronting these often thorny issues, this topic is divided into five parallel and independent Tracks, each representing a different type of liability regime that may be applicable in a particular jurisdiction:

Joint and several liability,

Several liability,

Joint and several liability with reallocation,

Hybrid liability based on threshold percentage of comparative responsibility, and

Hybrid liability based on type of damages.

Topic 3 explores Contribution and Indemnity and provides a variety of illustrative scenarios. It replaces Restatement Second, Torts § 886B.

Topic 4, Settlement, covers the effect of settlement upon apportionment of liability. The provisions in this Topic address the situation when some, but less than all, potentially liable tortfeasors enter into a settlement with a claimant. Also addressed is the situation in which a settlement with all potentially liable tortfeasors constitutes a satisfaction of the plaintiff’s claim.

Topic 5 deals with Apportionment of Liability When Damages Can Be Divided by Causation and analyzes the processes of dividing damages by causation into indivisible parts and then of apportioning those damages by responsibility. This Topic makes clear how these two processes work in the same case and the priority to be accorded them.

Restatement Third, Torts: Apportionment of Liability, thus reflects to an unusual degree for a Restatement the convergence of decisional law, legislation, and jurisprudential analysis. It will undoubtedly contribute enormously to the resolution of important social problems involving apportionment of liability and to the clarification and improvement of the law in this difficult and still largely unresolved area.

This important new Restatement treats its complicated and challenging subject throughout in lucid terms, combining clear black-letter provisions with extensive explanatory Comments, clarifying Illustrations, and detailed Reporters’ Notes. The Comments thoroughly explicate the background, rationale, and applicability of the black-letter provisions, while the Reporters’ Notes document and discuss the sources for the black letter and Comments and provide a convenient basis for further research. The work is further enhanced by tables of cases, statutes, parallel tables, and cross references to the West Digest System and ALR annotations, and by an Index.

The Reporters for ALI’s Restatement of the Law Third, Torts: Apportionment of Liability, were William C. Powers, Jr., of the University of Texas and Michael D. Green of the University of Iowa.

2000, xxxii, 401 pp., hardbound, Order Code 1R3APPOT, $97.50 plus shipping/handling -- Order this item ; paperbound, Order Code 1R3APPOTS, $46 plus shipping/handling -- Order this item

 

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Abbreviated Table of Contents

Topic 1

BASIC RULES OF COMPARATIVE RESPONSIBILITY

1. Issues and Causes of Action Addressed by This Restatement

2. Contractual Limitations on Liability

3. Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished

4. Proof of Plaintiff’s Negligence and Legal Causation

5. Negligence Imputed to a Plaintiff

6. Negligence Imputed to a Plaintiff When the Plaintiff’s Recovery Derives from a Claim That the Defendant Committed a Tort Against a Third Person and in Claims Under Survival Statutes

7. Effect of Plaintiff’s Negligence When Plaintiff Suffers an Indivisible Injury

8. Factors for Assigning Shares of Responsibility

9. Offsetting Judgments

Topic 2

LIABILITY OF MULTIPLE TORTFEASORS

FOR INDIVISIBLE HARM

10. Effect of Joint and Several Liability

11. Effect of Several Liability

12. Intentional Tortfeasors

13. Vicarious Liability

14. Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort

15. Persons Acting in Concert

16. Effect of Partial Settlement on Jointly and Severally Liable Tortfeasors’ Liability

17. Joint and Several or Several Liability for Independent Tortfeasors

Track A

JOINT AND SEVERAL LIABILITY

A18. Liability of Multiple Tortfeasors for Indivisible Harm

A19. Assignment of Responsibility: Jointly and Severally Liable Defendants

A20. [Not Applicable to This Track]

A21. [Not Applicable to This Track]

Track B

SEVERAL LIABILITY

B18. Liability of Multiple Tortfeasors for Indivisible Harm

B19. Assignment of Responsibility: Severally Liable Defendants

B20. [Not Applicable to This Track]

B21. [Not Applicable to This Track]

Track C

JOINT AND SEVERAL LIABILITY WITH REALLOCATION

C18. Liability of Multiple Tortfeasors for Indivisible Harm

C19. Assignment of Responsibility: Jointly and Severally Liable Defendants

C20. Effect of Responsibility Assigned to Immune Employer

C21. Reallocation of Damages Based on Unenforceability of Judgment

Track D

HYBRID LIABILITY BASED ON THRESHOLD

PERCENTAGE OF COMPARATIVE RESPONSIBILITY

D18. Liability of Multiple Tortfeasors for Indivisible Harm

D19. Assignment of Responsibility: Both Jointly and Severally Liable and Severally Liable Defendants

D20. [Not Applicable to This Track]

D21. [Not Applicable to This Track]

Track E

HYBRID LIABILITY BASED ON TYPE OF DAMAGES

E18. Liability of Multiple Tortfeasors for Indivisible Harm

E19. Assignment of Responsibility: Joint and Several Liability for Economic Damages and Several Liability for Noneconomic Damages

E20. [Not Applicable to This Track]

E21. [Not Applicable to This Track]

Topic 3

CONTRIBUTION AND INDEMNITY

22. Indemnity

23. Contribution

Topic 4

SETTLEMENT

24. Definition and Effect of Settlement

25. Satisfaction of Claim Through Discharge of Judgment

Topic 5

APPORTIONMENT OF LIABILITY WHEN DAMAGES

CAN BE DIVIDED BY CAUSATION

26. Apportionment of Liability When Damages Can Be Divided by Causation

Table of Cases

Table of Statutes

Parallel Tables

Table of Cross References to Digest System Key Numbers and ALR Annotations

Index

REPORTERS

William C. Powers, Jr., The University of Texas School of Law, Austin, Texas

Michael D. Green, University of Iowa College of Law, Iowa City, Iowa

ADVISERS

Andrew T. Berry, Newark, New Jersey

Dennis R. Connolly, New York, New York [from 1994]

Edward H. Cooper, University of Michigan Law School, Ann Arbor, Michigan

William A. Dreier, Somerville, New Jersey; formerly Judge, New Jersey Superior Court, Appellate Division

Noel Fidel, Judge, Arizona Court of Appeals, Phoenix, Arizona

Wayne Fisher, Houston, Texas

George Clemon Freeman, Jr., Richmond, Virginia

James A. Henderson, Jr., Cornell Law School, Ithaca, New York

Stephen J. Holtman, Cedar Rapids, Iowa

Michael Alexander Kahn, San Francisco, California

Mary Kay Kane, University of California, Hastings College of the Law, San Francisco, California

Robert E. Keeton, Judge, United States District Court for the District of Massachusetts, Boston, Massachusetts

Pierre N. Leval, Judge, United States Court of Appeals for the Second Circuit, New York, New York

Eugene F. Lynch, San Francisco, California; formerly Judge, United States District Court for the Northern District of California

Richard L. Revesz, New York University School of Law, New York, New York

Anthony Z. Roisman, Lyme, New Hampshire

Gary T. Schwartz, University of California at Los Angeles School of Law, Los Angeles, California

Victor E. Schwartz, Washington, District of Columbia

Susan Ross Steingass, Madison, Wisconsin

Larry S. Stewart, Miami, Florida [from 1998]

Michael Traynor, San Francisco, California

Bill Wagner, Tampa, Florida

Malcolm E. Wheeler, Denver, Colorado

Richard W. Wright, Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois

EX OFFICIO†

Roswell B. Perkins, New York, New York, Chair of the Council, The American Law Institute

Charles Alan Wright, Austin, Texas, President, The American Law Institute

Geoffrey C. Hazard, Jr., Philadelphia, Pennsylvania, *Director, The American Law Institute

†As of May 18, 1999, the date project was approved

*Director Emeritus as of May 20, 1999; succeeded as Director by Lance Liebman