Comparative Contribution and Strict Tort Liability: A

COMPARATIVE CONTRIBUTION AND STRICT TORTLIABILITY: A PROPOSED RECONCILIATION

INTRODUCTION

The legal system will sometimes shift all or part of the losssuffered by one party to another. Since at least 1799, courts, liti-gants, and legislatures have had to deal with the problem of divid-ing the damages between defendants held jointly responsible for aplaintiff's injury.' Recently this struggle has intensified with theincreasing emphasis on strict liability as a ground for recovery inproducts liability cases. "[CI ommon law rules governing loss allo-cation based on fault [have been extended] to situations where, atleast in its legal definition, fault does not necessarily exist."'2 In-creasingly, courts are utilizing comparative fault principles to ap-portion damages among defendants whose respective liability ispredicated on widely disparate theories. 3 The result has fre-quently been an inequitable distribution of losses. 4

This comment will first survey the conceptual bases and devel-opment of both contribution and strict tort liability. Then, applica-bility of the contribution remedy to the products liability cause ofaction will be examined in two situations: where all defendantsare strictly liable; and where multiple defendants are held liableunder different theories-i.e., one tort-feasor was negligent whileanother tort-feasor was strictly liable. Finally, potential conse-quences of dividing damages between strictly liable and negli-gently liable defendants will be considered in an attempt tofashion a loss allocation system for use in products liability caseswhich will promote consistency of result while providing an essen-tially equitable distribution of losses.

BACKGROUND

CONMRIBUTION

"[C ] ontribution is an equitable concept which provides for the

1. Oldham & Maynard, Indemnity and Contribution Between Strictly Liableand Negligent Defendants in Major Aircraft Litigation, 43 J. Am L. & COMMERCE245, 245-46 (1977); see, e.g., Merryweather v. Nixan, 101 Eng. Rep. 1337, 1337 (K.B.1799).

2. Jensvold, A Modern Approach to Loss Allocation Among Tortfeasors inProducts Liability Cases, 58 MiNN. L. REv. 723, 723 (1974).

3. See notes 72-77 and accompanying text infra.4. See Comment, Comparative Causation, Indemnity, and the Allocation of

Losses Between Joint Tortfeasors in Products Liability Cases, 10 ST. MARY's L.J.587, 587 (1979) (hereinafter cited as Comparative Causation].

CREIGHTON LAW REVIEW

equalization of burdens and the fair division of losses betweentort-feasors. ' '5 In joint liability cases where one tort-feasor paysmore than his share of the plaintiff's loss, that tort-feasor may beable to recover a portion of his payment from other responsibleparties through an action for contribution.6

Two prerequisites exist to an action for contribution.7 First,both parties to the contribution action must be under a common,although not necessarily identical, liability to the injured individ-ual.8 The usual situation involves "persons whose separate and in-dependent acts concur to produce the plaintiff's injury."9 Thesecond prerequisite is that one tort-feasor must have paid morethan his proportionate share of the common burden.10 Dischargeby way of settlement is not precluded; if a tort-feasor satisfies thevictim's claim and secures a release, he may seek contribution asreadily as one who pays under compulsion of a judgment."

In those jurisdictions recognizing the right of contributionamong negligent tort-feasors, an important problem that must beresolved is determining the measure of contribution.' 2 Most states

5. Comment, Contribution Among Tortfeasors-The Need for Clarification, 8J. MAR. J. PRAc. & PRoc. 75, 75 (1974).

6. Comment, Contribution and the Distribution of Loss Among Tortfeasors, 25AM. U.L. 'REv. 203, 203 (1975) [hereinafter cited as Distribution of Loss]. For pur-poses of this comment, the term joint tort-feasors will be used to refer to two ormore persons jointly and severally liable in tort for a single indivisible injury to athird person. See Comment, Another Look at Strict Liability: The Effect of Contri-bution Among Tortfeasors, 79 DICK. L. REV. 125, 126-27 (1974) [hereinafter cited asAnother Look].

7. Distribution of Loss, supra note 6, at 220.8. Greenstone, Spreading the Loss-Indemnity, Contribution, Comparative

Negligence and Subrogation, 13 FORUM 266, 268 (1977).9. See Another Look, supra note 6, at 127. Joint and several liability in tort

includes two other categories of persons: those who knowingly join in the perform-ance of a tortious act, and those who fail to perform a common duty to the plaintiff.Contribution seldom arises in these two situations. See 1 F. HARPER & F. JAMES,THE LAw OF TORTS § 10.1, at 692-93 (1956).

10. Distribution of Loss, supra note 6, at 220.11. Id. at 222. Three procedural routes exist from which a joint tort-feasor can

enforce his right of contribution. First, if the injured person brings an actionagainst only one of the tort-feasors, that defendant can implead the other joint tort-feasor as a third party defendant in the same action. Another Look, supra note 6, at128. Second, a joint tort-feasor who does not implead the other tort-feasor but in-stead pays more than his pro rata share of the judgment recovered against him maybring a separate action for contribution. Id. Third, if one tort-feasor settles withthe injured person and pays more than his pro rata share of the common liability,he may bring an independent action for contribution against the other joint tort-feasor. Id.

12. Distribution of Loss, supra note 6, at 232. At least thirty-eight Americanjurisdictions currently allow, either statutorily or by judicial determination, somedegree of contribution among tort-feasors. For examples of jurisdictions permittingcontribution by statute, see CAL. CIV. PROc. CODE §§ 875-78 (West Supp. 1979); KAN.STAT. ANN. § 60-2413(b) (1976); N.J. STAT. ANN. §§ 2A:53A-1 to -4 (1952); TENN. CODE

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COMPARATIVE CONTRIBUTION

allowing contribution seem to adhere to the position that "equalityis equity" and divide the loss equally among the tort-feasors. 13 Onthe other hand, several jurisdictions have deemed it appropriate toadopt the theory that, for purposes of contribution, the responsibil-ity for damages suffered by an injured party should be appor-tioned, as between joint tort-feasors, on the basis of their relativefault.

14

Contribution is a corollary "of the fault principle in tort lawand.. developed as [a] subordinate [aspect] of fault-based liabil-ity.' 5 The doctrine of contribution allocates the loss betweenthose who caused the injury, provided they were, in the languageof common-law negligence, at fault. 16 Where culpable conduct isfound, it can be compared and fairly apportioned in a reasonablyconsistent manner by the trier of fact.17

The ultimate objective of contribution is to promote fairnessby requiring an equitable apportionment of liability among all par-ties whose conduct was in some significant manner responsible forthe plaintiff's loss.18 Without interfering with the compensatorygoal of tort law, "[clontribution permits the loss to be equitablydistributed among all persons responsible for the injury, so it doesnot rest on one alone.' 9

Contribution has often been confused with indemnity.20 Al-

ANN. §§ 23-3101 to -3106 (Supp. 1977); Wyo. STAT. § 1-1-110 (1977). For examples ofjurisdictions permitting contribution by judicial decision, see Skinner v. Reed-Pren-tice Div. Package Mach. Co., 70 Ill. 2d 1, -, 374 N.E.2d 437, 443 (1977); Best v. Yerkes,247 Iowa 800, 806-07, 77 N.W.2d 23, 27-29 (1956); Bedell v. Reagan, 159 Me. 292,-, 192A.2d 24, 26 (1963); Royal Indem. Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 757-58, 229N.W.2d 183, 189-90 (1975). For comprehensive listings of jurisdictions permittingcontribution, see Oldham & Maynard, supra note 1, at 252 n.35; Distribution of Loss,supra note 6, at 207-08 nn.20 & 21. Since each jurisdiction formulated its own rulesof contribution, there is a great disparity among the various states as to the scopeand application of the remedy. See Allen, Joint Tortfeasors-A Case for UnlimitedContribution, 43 Miss. L.J. 50, 55 (1972).

13. Distribution of Loss, supra note 6, at 232; see W. PROSSER, HANDBOOK OFTHE LAw OF TORTS § 50 (4th ed. 1971). The term pro rata is commonly used to de-note the equal division of damages among tort-feasors.

14. Annot., 53 A.L.R.3d 184, 192 (1973); see Comparative Causation, supra note4, at 592.

15. James, Indemnity, Subrogation, and Contribution and the Ef#Lcient Distri-bution of Accident Losses, 21 NACCA L.J. 360, 364 (1958); Another Look, supra note

6, at 138.16. Another Look, supra note 6, at 138-39.17. See, e.g., Dole v. Dow Chem. Co., 30 N.Y.2d 143, -, 282 N.E.2d 288, 295, 331

N.Y.S.2d 382, 391-92 (1972); City of Franklin v. Badger Ford Truck Sales, Inc., 58 Wis.2d 641, -, 207 N.W.2d 866, 872-73 (1973).

18. See Jensvold, supra note 2, at 734.19. Distribution of Loss, supra note 6, at 204.20. 3A L. FRUMER & M. FRIEDMAN, PRODUCTS LIABILITY § 44.02(2) (1979); Distri-

bution of Loss, supra note 6, at 208.

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though it has been said that "indemnity is only an extreme form ofcontribution,"' 2' indemnity remains a largely separate remedy alsoused to allocate damages among those jointly liable.22 The tradi-tional definitions of the terms are as follows: contribution refers toa distribution of the loss among responsible tort-feasors by requir-ing each to pay his proportionate share, whereas indemnity trans-fers the entire burden from one tort-feasor who has beencompelled to pay it to another who, in justice and equity, ought tobear it instead.23

Certain courts and commentators have advocated combiningthe traditional doctrines of indemnity and contribution to effec-tively create "an entirely new rule stripped of historical anachro-nisms and semantic absurdities, which would allocateresponsibility among all persons whose conduct was in some sig-nificant manner responsible for the plaintiffs loss. ' '24 Apportion-ing liability among joint tort-feasors on the basis of comparativefault and causation appears to be the current trend.25 Althoughthis system has received diverse, and often semantically confus-ing, labels in jurisdictions in which it has been adopted,26 it seemsto have developed from a judicial dissatisfaction with one or bothof the following: "the all-or-nothing characteristics of common lawindemnity; '27 and serious and inequitable restrictions placed on

21. Slattery v. Marra Bros., 186 F.2d 134, 138 (2d Cir. 1951).22. See Another Look, supra note 6, at 127.23. 3A L. FRUMER & M. FRIEDMAN, supra note 20, § 44.02(2); W. PROSSER, supra

note 13, § 51; Another Look, supra note 6, at 127. A detailed discussion of indemnityis beyond the scope of this comment. For comprehensive treatments of contribu-tion and indemnity, see Bohlen, Contribution and Indemnity Between Tortfeasors,21 CORNELL L.Q. 552 (1936); Hodges, Contribution and Indemnity AmongTortfeasors, 26 TEx. L. REV. 150 (1947); Leflar, Contribution and Indemnity BetweenTortfeasors, 81 U. PA. L REV. 130 (1932). For articles focusing specifically on indem-nity in various contexts, see Davis, Indemnity Between Negligent Tortfeasors: AProposed Rationale, 37 IOWA L. REV. 517 (1952); Note, The Right to Indemnity inProducts Liability Cases, 1964 U. ILL. L.F. 614 (1964); Note, 32 S. CAL. L. REV. 293(1959).

24. Jensvold, supra note 2, at 739; see Phillips, Contribution and Indemnity inProducts Liability, 42 TENN. L. REV. 85, 87 (1974); Wade, Uniform ComparativeFault Act, 14 FoRuM 379, 391 (1979); see, e.g., American Motorcycle Ass'n v. SuperiorCourt, 20 Cal. 3d 578, -, 578 P.2d 899, 912, 146 Cal. Rptr. 182, 195 (1978); Tolbert v.Gerber Indus., Inc., - Minn. -, -, 255 N.W.2d 362, 367-68 (1977); Missouri Pac. R.R.Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 473-74 (Mo. 1978).

25. Phillips, A Synopsis of the Developing Law of Products Liability, 28 DRAKEL. REV. 317, 387 n.424 (1978).

26. E.g., Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 47(Alaska 1976) (Rabinowitz, J., concurring) (comparative causation); SafewayStores, Inc. v. Nest-Kart, 21 Cal. 3d 322, -, 579 P.2d 441, 443, 446, 146 Cal. Rptr. 550,552, 555 (1978) (equitable indemnity or comparative indemnity); Dole v. Dow Chem-ical Co., 30 N.Y.2d 143, -, 282 N.E.2d 288, 291, 331 N.Y.S.2d 382, 386 (1972) (partialindemnification).

27. Comparative Causation, supra note 4, at 592.

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the contribution remedy in the statutory contribution schemes ofsome states.2 A wave of recent decisions has espoused this con-cept wherein liability is determined by the factfinder in accord-ance with the relative percentages of fault for the several tort-feasors or their causal contribution to the victim's injury.29 TheRestatement (Second) of Torts has suggested that the eventualoutcome is likely to be a single remedy based on comparativefault,30 which could perhaps be styled "comparative responsibil-ity."31

STRICT TORT LIABILITY

When the contribution remedy is sought in strict liabilitycases, the allocation of damages between joint tort-feasors be-comes more complicated.32 There seems to be an inherent conflictin the policies underlying contribution, which is essentially a toolfor promoting fairness to defendants, and those behind strict liabil-ity, which was developed primarily to protect injured consumersand focuses on plaintiffs' rights.33 A brief examination of the foun-dations of strict liability will aid in resolving the issue of whethercontribution principles should be employed to apportion damagesbetween products liability defendants.

"[S] trict liability in the products liability field is a form of lia-bility imposed upon manufacturers and other suppliers of prod-ucts for injuries resulting to consumers or users due to defects inthose products."' Proof of actual fault is not required: a defend-ant may be grossly negligent or may exercise every possible pre-caution in the preparation and sale of the product and still be held

28. RESTATEMENT (SECOND) OF TORTS § 886B, Comment m (1979).29. E.g., Jorae v. Clinton Crop Serv., 465 F. Supp. 952, 958 (E.D. Mich. 1979);

Stueve v. American Honda Motors Co., 457 F. Supp. 740, 750 (D. Kan. 1978); Caterpil-lar Tractor Co. v. Beck, 593 P.2d 871, 889 (Alaska 1979); Safeway Stores v. Nest-Kart,21 Cal. 3d 322, -, 579 P.2d 441, 444, 146 Cal. Rptr. 550, 553 (1978); Skinner v. Reed-Prentice Div. Package Mach. Co., 70 Ill. 2d 1, -, 374 N.E.2d 437, 442 (1977); Busch v.Busch Constr. Co., - Minn. -, -, 262 N.W.2d 377, 394 (1977); Missouri Pac. R.R. Co.v. Whitehead & Kales Co., 566 S.W.2d 466, 474 (Mo. 1978); Doundoulakis v. Town ofHempstead, 42 N.Y.2d 440, -, 368 N.E.2d 24, 29, 398 N.Y.S.2d 401, 406 (1977).

30. RESTATEMENT (SECOND) OF TORTS § 886A, Comment 1 (1979).31. Jensvold, supra note 2, at 739.32. Note, Skinner v. Reed-Prentice: The Application of Contribution to Strict

Product Liability, 12 J. MAR. J. PRAc. & PRoc. 165, 167 (1978) [hereinafter cited asThe Application of Contribution ].

33. Id.34. Banks, How Strict is Strict Liability?, 13 FORUM 293,294 (1977); see Bachner

v. Pearson, 479 P.2d 319, 329 (Alaska 1970); Barker v. Lull Eng'r Co., 20 Cal. 3d 413,418, 573 P.2d 443, 446-47, 143 Cal. Rptr. 225, 229 (1978).

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liable.3 5 "An action based on strict liability is to be distinguishedfrom liability predicated on a breach of warranty or simple negli-gence. It is not based on fault. ' 36 Once a product is held to bedefective, the defendant's liability is established unless it has beenprecluded by some type of plaintiff conduct.37

Unlike negligence, in which the injured plaintiff as a prerequi-site to recovery must sue the party who caused the defect, thecommon-law view of strict liability is that the injured person maybring an action against anyone within the chain of distribution ofthe product.3 Today nearly all jurisdictions have adopted strictliability in some form.39

A primary goal of products liability has been consumer protec-tion and compensation. 4° Consumers rely on the manufacturer tocreate a product without an injury-producing defect and are pow-erless to protect themselves.4 1 Courts hold manufacturers strictlyliable for the harm caused by their products because a mass pro-duction and marketing system creates substantial risks of personalinjury, and consumers are not sufficiently protected from suchrisks by liability grounded in negligence or warranty concepts. 42

In addition to this consumer protection goal, a major justifica-tion for strict liability is risk distribution, which perceives strict lia-bility as a loss spreading vehicle "whereby those in the stream ofcommerce of the defective product 'internalize' the potential risksinvolved by insuring against liability and adding the cost to theprice of the product. '43 All users of the product thereby absorb afraction of the cost of accidents resulting from defective prod-

35. Lunt v. Brady Mfg. Corp., 13 Ariz. App. 305, 307, 475 P.2d 964, 966 (1970);Distribution of Loss, supra note 6, at 253.

36. DeFelice v. Ford Motor Co., 28 Conn. Supp. 1.64, -, 255 A.2d 636, 638 (1969).37. Comment, Comparative Fault and Strict Products Liability: Are They

Compatible?, 5 PEPPERDINE L. REV. 501, 507 (1978) [hereinafter cited as Compara-tive Fault and Strict Liability].

38. Oldham & Maynard, supra note 1, at 250. This has been changed by statutein some jurisdictions. See, e.g., NEB. REV. STAT. § 25-21, 181 (Supp. 1978) (barringany action based on strict liability in tort brought against the seller or lessor ofeither a defective or unreasonably dangerous product unless the seller or lessor isalso the manufacturer of the product).

39. See Banks, supra note 34, at 295-304; Pinto, Comparative Responsibility -An Idea Whose Time Has Come, 45 INS. COUNSEL J. 115, 116 n.2 (1978). Section 402Aof the Restatement (Second) of Torts is the basic standard used by most courts todefine strict liability. Banks, supra note 34, at 295.

40. Comparative Fault and Strict Liability, supra note 37, at 504.41. Id. at 505; see Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 63, 377

P.2d 897, 901, 27 Cal. Rptr. 697, 701 (1963).42. Jensvold, supra note 2, at 724; Prosser, The Fall of the Citadel (Strict Liabil-

ity to the Consumer), 50 MINN. L. REV. 791, 799-800 (1966).43. Comment, Strict Tort Liability in Nebraska: Recent Developments in Per-

spective, 12 CREIGHTON L. REV. 370, 376 (1978); Note, Products Liability, Compara-

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ucts.44 Defendants in products liability actions are better risk dis-tributors than are injured plaintiffs.45

The foregoing policies underlying strict tort liability differfrom those behind contribution.46 Contribution does not necessar-ily further the purposes of strict liability; in many cases contribu-tion will have no effect on those purposes. 47 But considering theoverriding importance of fairness as an objective of tort law, andrealizing that contribution promotes fairness, equitable considera-tions mandate that contribution be allowed in strict liability ac-tions.48

Additionally, it should be recalled that strict liability attachesto both the manufacturer and the distributor of a product.49 Bothsuch entities should arguably bear the losses resulting from defec-tive products since both are essential parts of the producing andmarketing complex.5 0 This recognition of the importance of distri-bution in product-induced injuries suggests that the fairness goalof contribution cannot be attained merely by shifting the economicloss from the injured consumer to the creator of the defective prod-uct.

51

tive Negligence, and the Allocation of Damages Among Multiple Defendants, 50 S.CAL L. REv. 73, 76 n.18 (1976) [hereinafter cited as Comparative Negligence].

44. Comparative Negligence, supra note 43, at 76 n.18.45. Id.; Calabresi & Hirschoff, Toward a Test for Strict Liability in Torts, 81

YALE L.J. 1055, 1082-83 n.93 (1972).Another objective of tort law and a subsidiary goal of strict liability is deter-

rence. Jensvold, supra note 2, at 735. "[Tihe manufacturer who is made liable tothe consumer for defects in his products will do what he can to see that there are nosuch defects." W. PROSSER, supra note 13, at § 4. The same might be said for retail-ers and others in the chain of distribution. Jensvold, supra note 2, at 735-36. Thesepolicy principles reflect an implicit value judgment as to who should bear a loss, aresocially and economically mechanistic, and seem to be oriented toward benefittingsociety as a whole. See Jensvold, supra note 2, at 735; Another Look, supra note 6,at 135.

46. See Distribution of Loss, supra note 6, at 252.47. Three policies supporting strict liability are consumer protection, risk dis-

tribution, and deterrence. Since contribution does not reduce liability, but merelydistributes the loss, the consumer protection goal of strict liability should remainunaffected by contribution. See notes 35-40 and accompanying text supra. Risk dis-tribution, on the other hand, mandates that the manufacturer of a product shouldbear, as a cost of production, the burden of injuries caused by his products. Seenotes 33 & 43-45 and accompanying text supra. This conflicts directly with the goalof contribution when a party other than the product's manufacturer was principallyresponsible for causing the plaintiff's injury. Finally, contribution may enhance de-terrence by imposing liability among all responsible entities within the distributivechain. See note 45 supra; see note 60 and accompanying text infra.

48. See Distribution of Loss, supra note 6, at 257.49. Jensvold, supra note 2, at 735.50. Farr v. Armstrong Rubber Co., 288 Minn. 83, 96, 179 N.W.2d 64, 72 n.1 (1970).51. Jensvold, supra note 2, at 735.

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CONTRIBUTION

ALL DEFENDANTS STRICTLY LIABLE

Traditionally, in products cases "where the liability of all thedefendants is premised solely on strict liability, the loss caused bya defective product [has] ultimately rest[ed] with the party at thebeginning of the distributive chain."5 2 This section considers theallocation of damages between manufacturers or retailers-inother words, allocation among suppliers at the same level of theproduction and marketing process.5 3

Claims between suppliers are usually for full indemnity ratherthan for contribution, and they run up rather than down the distri-bution chain.5 The seller sued is thus allowed indemnity up thechain until the manufacturer is reached.5 5 The producer of a de-fective product is invariably held responsible among strictly liabledefendants.5 6 Instead of the usual situation wherein the manufac-turer passes on the loss to all suppliers by increasing the price ofthe product, it would be more equitable to allocate a greater part ofthis loss to suppliers who proximately caused the injury 7

Legally, all members of the distributive chain are "equally

52. Id. at 729-30; see Farr v. Armstrong Rubber Co., 288 Minn. 83,-, 179 N.W.2d64, 72 (1970).

53. How the policy goals of strict liability and contribution will be best servedwhen damages are sought to be apportioned between defendants on successivelevels of the chain is, to say the least, problematic. The situation where the defend-ants are, for example, a neighborhood hardware store and a manufacturing con-glomerate might well require a solution different from that where the defendantsare an inexperienced manufacturer with little capital and a large, nationwide retailconcern. See Jensvold, supra note 2, at 738-39.

A perhaps neglected method available to control loss from product liability isan express contract of contribution or indemnity. When executed between mem-bers of the distribution chain, such express agreements are not generally contraryto public policy because the parties to the agreement are merchants who are capa-ble of striking a free bargain on the issue of apportionment of risk and who willhopefully allocate the heavier burden to that party best able to absorb and spreadthe loss through inspection, quality control, and insurance. See Phillips, supra note24, at 89.

54. Phillips, supra note 24, at 104. Contra, Stevens v. Silver Mfg. Co., 70 Ill. 2d41, -, 374 N.E.2d 455, 457 (1977).

55. Distribution of Loss, supra note 6, at 254. See generally 3A L. FiRMvER & M.FRIEDMAN, supra note 20, § 44.02.

56. Burke v. Sky Climber, Inc., 13 Ill. App. 3d 498, -, 301 N.E.2d 41, 46 (1973),affid, 57 Ill. 2d 542, 316 N.E.2d 516 (1974); see Comparative Negligence, supra note 43,at 84. In cases where two manufacturers are held strictly liable, neither manufac-turer is entitled to indemnity from the other. See 3A L FRUMER & M. FRIEDMAN,supra note 20, § 44.02(3) at 15-34. At common law, the loss would apparently remainwhere the victim chose to impose it. Comment, The Allocation of Loss Among JointTortfeasors, 41 S. C u. L. REv. 728, 728 (1968).

57. Phillips, supra note 24, at 106; see Ford Motor Co. v. Robert J. Poeschl, Inc.,21 Cal. App. 3d 694, -, 98 Cal. Rptr. 702, 705 (1971).

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faultless" in the sense that their liability derives entirely fromstrict liability principles.5 8 The traditional indemnity rules dis-count the importance of nonnegligent behavior in causing product-related injuries.5 9 This situation mitigates the potential deterrenteffect of strict tort liability by making it difficult to apportion dam-ages among all suppliers who profit from selling defective prod-ucts.

60

Furthermore, the goal of equitable loss allocation among tort-feasors warrants a critical reappraisal of the alternatives availableto strict products liability defendants. One commentator statedthat "[t]here is no compelling reason why recovery of claims be-tween suppliers should be for the full amount of liability whenthere is joint fault or joint strict liability; nor is there any reasonwhy the right to claim should be limited to those claims made upthe chain of distribution, instead of including claims made in ei-ther direction."61 "The central feature of all these [contribution]cases,.. . is the fact of common liability for an obligation restingat law equally upon the property of persons between whom thereis contribution. '62 Where the liability of all defendants in a prod-ucts case is premised on strict liability, the element of commonliability is present and contribution should be allowed.63

The presence of a common conceptual standard of comparisonenables the trier of fact to determine, with some consistency, therelative roles of all defendants in proximately causing the victim'sinjuries.64 Equitable loss sharing on the basis of responsibilitythen requires that principles of comparative contribution be ap-plied.

65

58. See Jen.vold, supra note 2, at 729.59. Id. at 738.60. Hales v. Green Colonial, Inc., 402 F. Supp. 738, 741 n.3 (W.D. Mo. 1975), afd,

490 F.2d 1015 (8th Cir. 1974); Comparative Negligence, supra note 43, at 85.61. Phillips, supra note 24, at 104.62. Leflar, supra note 23, at 136.63. See Jensvold, supra note 2, at 740.64. Skinner v. Reed-Prentice Div. Package Mach. Co., 70 Ill. 2d 1, -, 374 N.E.2d

437, 445 (1977) (Ward, C.J., dissenting).65. Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, -, 368 N.E.2d 24, 29, 398

N.Y.S.2d 401, 406 (1977); Jensvold, supra note 2, at 740-41; cf. Busch v. Busch Const.,Inc., - Minn. -, -, 262 N.W.2d 377, 393-94 (1977) (applying comparative contribu-tion principles to the situation where one defendant is liable under ordinary negli-gence principles while the other defendant is strictly liable). Comparativecontribution may be defined as an apportionment of liability among tort-feasors inwhich the jury first determines the relative responsibility of each defendant incausing the victim's injury, and then assigns the corresponding percentage (0 to 100percent) of plaintiffs award to each defendant.

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DEFENDANTS LIABLE UNDER DIFFERENT THEORIES

Although comparative contribution is feasible where a com-mon denominator exists,66 the issue becomes more complex wheretheories of liability differ.67 For purposes of this section, the de-fendants will remain the same: one joint tort-feasor is strictly lia-ble and the other is negligent. Whether contribution should beallowed, and if so, what its measure should be, are the questionswhich will now be addressed. 68

Claims for contribution between negligent and strictly liableparties have been asserted in relatively few products cases. 69 Thismay be explained, in part, by the predominance of actions for fullindemnification 70 and, in part, by the absence, in some states, ofstatutory or judicial schemes permitting contribution among jointtort-feasors. 71 Courts considering the problem have advanced

66. See notes 63-65 and accompanying text supra.67. The Application of Contribution, supra note 32, at 173-74.68. Recently, several jurisdictions have adopted the comparative system of dis-

tributing losses between negligent and strictly liable parties in products liabilityactions. Pan-Alaska Fish. Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1139(9th Cir. 1977); Caterpillar Tractor Co.. v. Beck, 593 P.2d 871, 889 (Alaska 1979);Safeway Stores, Inc. v. Nest-Kart, 21 Cal. 3d 322, -, 579 P.2d 441, 443, 146 Cal. Rptr.550, 552 (1978); Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1172,144 Cal. Rptr. 380, 390 (1978); Skinner v. Reed-Prentice Div. Package Mach. Co., 70Ill. 2d 1, -, 374 N.E.2d 437, 443 (1977); Missouri Pac. R.R. Co. v. Whitehead & KalesCo., 566 S.W.2d 466, 472 (Mo. 1978); Thibault v. Sears, Roebuck & Co., - N.H. -, -,395 A.2d 843, 850 (1978). Contra, Kinard v. Coats Co., 37 Colo. App. 555, -, 553 P.2d835, 837 (1976); Kirkland v. General Motors Corp., 521 P.2d 1353, 1367 (Okla. 1974);Smith v. Smith, - S.D. -, -, 278 N.W.2d 155, 161 (1979). Many of these actionsinvolved a comparison of fault between a contributorily negligent plaintiff and astrictly liable defendant rather than a comparison of fault between two defendants.Although comparative negligence and contribution both represent attempts toachieve greater fairness in tort law, the underlying policy considerations of each aredifferent. Contribution, unlike comparative negligence, is neither related to thedamages an injured party is entitled to receive nor to the question of whether thatinjured party should receive less than his full damages. Wenatchee Wenoka Grow-ers Ass'n v. Krack Corp., 89 Wash. 2d 847,-, 576 P.2d 388, 390 (1978). Thus, contribu-tion and comparative negligence pertain to unrelated interests and contributiondoes not necessarily follow as the corollary of comparative negligence. Id. In Gen-eral Motors Corp. v. Simmons, 558 S.W.2d 855, 862 (Tex. 1977), the court expresslyrefused to extend the reach of the state's comparative negligence statute to coveractions in strict liability. Texas' contribution statute, which allocates the loss on apro rata basis, is the proper statute for use when one or more defendants is foundstrictly liable. Id.

69. See Crowe, Spreading the Risk, in PRACTISING LAw INsTrrUTE, PRODUCTSLIABILIrY OF MANUFACTURERS: PREVENTION AND DEFENSE 109-14 (1977).

70. See Oldham & Maynard, supra note 1, at 250.71. E.g., Sobocinski v. City of Cleveland, - Ohio App. 2d -, -, 133 N.E.2d 622,

624 (1956); National Trailer Convoy, Inc. v. Oklahoma Turnpike Auth., 434 P.2d 238,240 (Okla. 1967); Howard v. Spafford, 132 Vt. 434, -, 321 A.2d 74, 75 (1974); Wenatch-ee Wenoka Growers Ass'n v. Krack Corp.,89 Wash. 2d 847, -, 576 P.2d 388, 391-92(1978).

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three theoretical characterizations of strict liability: negligenceper se, culpable violation of a duty to produce a reasonably safeproduct, and liability irrespective of fault. The theory adopted usu-ally forms the basis for the courts' application of contribution.

In adopting the comparative system of distributing lossesamong joint tort-feasors to products cases, at least one court hastreated strict liability as a variant of negligence per se.72 This in-jection of fault concepts into the strict liability cause of action hasprovided the jury with a common standard of comparison to appor-tion damages among all defendants in a products liability action,and may have avoided the conceptual difficulties of comparing themere existence of a defect with the negligence of another party.73

Rather than labeling strict liability as negligence per se, mostjurisdictions applying comparative fault to strict liability actionsreason that violation of the duty to produce a nondefective productinvolves culpable conduct and is capable of apportionment by thejury.7 4 "Some courts taking this view merely state that negligentand strictly liable parties may be in pari delicto, or point out that,with the exception of intentional tort-feasors, the contribution stat-ute makes no distinction. s7 5 Courts allowing contribution in favorof a strictly liable defendant against a negligent defendant fre-quently state that strict liability is not absolute liability,7 6 andseem to emphasize the role of strict liability as a substitute forproof of negligence rather than as a device to spread losses.77

Thus, some authorities have suggested that strict liability"rests on theoretical foundations of fault,"78 referring to fault in

72. Powers v. Hunt-Wesson Foods, Inc., 64 Wis. 2d 532, -, 219 N.W.2d 393, 395(1974); Dippel v. Sciano, 37 Wis. 2d 443,-, 155 N.W.2d 55, 64 (1967). See also Hagen-buch v. Snap-On Tools Corp., 339 F. Supp. 676, 683 (D.N.H. 1972); Buttrick v. ArthurLessard & Sons, Inc., 110 N.H. 36, -, 260 A.2d 111, 114 (1969).

73. See Pinto, supra note 39, at 122.74. Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 753 (D. Kan.

1978); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 45 (Alaska1976); Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1170, 144 Cal.Rptr. 380, 388 (1978); Comparative Causation, supra note 4, at 591.

75. Distribution of Loss, supra note 6, at 256; see Chamberlain v. CarborundumCo., 485 F.2d 31, 34 (3d Cir. 1973); Walters v. Hiab Hydraulics, Inc., 356 F. Supp. 1000,1002 (M.D. Pa. 1973).

76. Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1166, 144 Cal.Rptr. 380, 384 (1978); Dippel v. Sciano, 37 Wis. 2d 443, -, 155 N.W.2d 55, 63 (1967).

77. Distribution of Loss, supra note 6, at 256.78. Levine, Strict Products Liability and Comparative Negligence: The Colli-

sion of Fault and No-Fault, 14 SAN DIEGO L REV. 337, 346 (1977). In the very recentcase of Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979), the SupremeCourt of Alaska stated simply: "The production and marketing of a defective prod-uct is tantamount to 'fault' in the sense that we will impose legal responsibility forit." Id. at 889; accord, Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F. Supp.598, 602 (D. Idaho 1976).

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the sense of negligent acts. Yet the fact remains that this approachis foreign to the characterization offered by most jurisdictions. 79

Although it is said that strict liability is not absolute liability andthat a defect cannot exist without someone's fault,80 such criticismmisses the mark. "The [strict products liability] defendant is aninsurer to the extent that an injury proximately results from aproduct which he has placed on the market in a defective condi-tion, regardless of his exercise of due care."81 The proposition thata defect presupposes the existence of fault simply ignores the ir-relevancy of the defendant's conduct in a strict liability action.82

The majority view characterizes strict liability as essentiallyan unrelated tort providing "liability irrespective of fault."83 Astrictly liable defendant has not been permitted to seek contribu-tion from a negligent defendant by several courts. 84 These deci-sions emphasize the loss spreading, risk distribution rationalebehind strict liability,8 5 and often focus "on the lack of an exactmechanism for an equitable allocation of damages between negli-gent and strictly liable defendants."8 6 The fact that the strictly lia-ble tort-feasor may have exercised all possible care suggests tosome authorities that no right to contribution exists between thosewhose liability is imposed under different theories.8 7

Although no consensus is provided by the cases as to the ap-plicability of contribution between joint tort-feasors whose liabilityis imposed under different theories, a recent California decisionmay signal a trend in favor of contribution. In Safeway Stores, Inc.v. Nest-Kart,8 8 the California Supreme Court utilized a common-law equitable indemnity doctrine89 to apportion liability on a com-parative fault basis between a strictly liable defendant and a negli-

79. Levine, supra note 78, at 352, 354-55 n.80.80. Horn v. General Motors Corp., 17 Cal. 3d 359, -, 551 P.2d 398, 406, 131 Cal.

Rptr. 78, 86 (1976) (Clark, J., dissenting); see notes 76-78 and accompanying textsupra.

81. Comparative Fault and Strict Liability, supra note 37, at 508.82. Id.83. Levine, supra note 78, at 346; see Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121,

-, 501 P.2d 1153, 1159, 104 Cal. Rptr. 433, 439 (1972); Kinard v. Coats Co., 37 Colo.App. 555, - 553 P.2d 835, 837 (1976); Kirkland v. General Motors Corp., 521 P.2d 1353,1365 (Okla. 1974); Smith v. Smith, - S.D. -, -, 278 N.W.2d 155, 159 (S.D. 1979).

84. Comparative Causation, supra note 4, at 591 n.26.85. Distribution of Loss, supra note 6, at 255-56; see Burke v. Sky Climber, Inc.,

13 Ill. App. 3d 498, -, 301 N.E.2d 41, 46 (1973), affd, 57 Ill. 2d 542, 316 N.E.2d 516(1974).

86. Comparative Causation, supra note 4, at 591 n.27.87. Fenton v. McCrory Corp., 47 F.R.D. 260, 262 (W.D. Pa. 1969); see Distribution

of Loss, supra note 6, at 256.88. 21 Cal. 3d 322, 579 P.2d 441, 146 Cal. Rptr. 550 (1978).89. In spite of this label the court was, in fact, awarding contribution as defined

above. See note 23 and accompanying text supra.

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gent defendant.9 0 The plaintiff in this case was injured in asupermarket when the shopping cart she was using broke and col-lapsed on her foot.9 1 Subsequently, she obtained a jury verdictagainst Safeway Stores (the owner of the cart who had made itavailable for customers' use) and Nest-Kart Corporation (the man-ufacturer of the cart).92 In response to the trial court's direction tomake special findings, the jury indicated that Safeway's liabilityrested on both negligence and strict liability principles, that Nest-Kart's liability was grounded solely on strict liability principlesand that Safeway's comparative fault for the accident was 80% andNest-Kart's was 20%.93 After the judgment had initially been satis-fied on the 80%-20% basis, Safeway moved for a judgment of con-tribution to require Nest-Kart to pay an additional 30% of thejudgment to Safeway, so as to achieve an equal apportionment be-tween the two tort-feasors.9 The trial court granted Safeway's mo-tion, concluding that apportionment on a comparative fault basiswas not permissible in light of California's existing contributionstatutes.95 Nest-Kart appealed from this order, and the supremecourt reversed.96

The Safeway Court supported its holding by reasoning thatfairness and tort goals such as deterrence of dangerous conductoften demand an apportionment of losses among joint tort-feasors,even where the liability of one rests on strict liability principles. 97

Noting that the jury had evidently concluded that while the defec-tiveness of the shopping cart partially caused the injury, primaryfault for the accident lay with Safeway, the court relied on commonsense and equitable considerations to suggest that Safeway shouldbear a greater share of the liability than Nest-Kart.98 The courtapparently viewed the difficulties of comparing the relative fault ofa negligent defendant with that of a strictly liable defendant whoseliability rests on no-fault concepts as more theoretical than practi-cal.99

In extending a full system of comparative fault to strict tortliability, the California Supreme Court was convinced that in

90. 21 Cal. 3d at-, 579 P.2d at 443, 146 Cal. Rptr. at 552; accord, Jorae v. ClintonCrop Service, 465 F. Supp. 952, 958 (E.D. Mich. 1979); Skinner v. Reed-Prentice Div.Package Mach. Co., 70 Ill. 2d 1, -, 374 N.E.2d 437, 443 (1977).

91. 21 Cal. 3d at -, 579 P.2d at 442, 146 Cal. Rptr. at 551.92. Id.93. Id.94. Id. at - 579 P.2d at 443, 146 Cal. Rptr. at 552.95. Id.96. Id. at -, -, 579 P.2d at 443, 447, 146 Cal. Rptr. at 552, 556.97. Id. at -, 579 P.2d at 445, 146 Cal. Rptr. at 554.98. Id.99. Id. at -, 579 P.2d at 446, 146 Cal. Rptr. at 555.

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merging the two principles what may be lost in symmetry is morethan gained in fundamental fairness. 100 But not all are in agree-ment as to the wisdom of employing comparative contribution toapportion damages between a strictly liable and a negligent tort-feasor. It is submitted that the problem is not "that the allocationof fault cannot be precisely measured-rather, in most cases thereis no measuring standard."''1 Indeed, several jurists have sug-gested that a comparative fault-type allocation between defend-ants who are not liable under the same theory will have seriousuntoward effects. 10 2

These pragmatic consequences deserve thoughtful considera-tion and indicate the need for caution on the part of courts facingthis dilemma in the future. Will the jurors in such a case be able tocompare the noncomparables-strict liability and negligence-andstill reach a fair apportionment of damages?

It has been suggested that factors not reasonably subject tocomparison cannot logically be compared.10 3 Applying contribu-tion on the basis of relative fault will require the jury, on the onehand, to focus on the product, disregarding questions of whetherthe manufacturer acted negligently, to determine defendant manu-facturer's liability.10 4 On the other hand, the jury must focus onthe remaining defendant's conduct in order to find that he was atfault. 10 5 The jury would then compare its examination of the man-ufacturer's product with its examination of the other defendant'sconduct to assign percentages of fault and allocate the plaintiff'sloss between the two parties. 0 6

There may be no logical formula that can be given to the juryto guide it in considering one tort-feasor's product and anothertort-feasor's negligence as constituting 100% responsibility for theplaintiff's injuries and then deciding what percentage of this 100%

100. Id. at -, 579 P.2d at 441-42, 146 Cal. Rptr. at 550-51 (citing Daly v. GeneralMotors Corp., 20 Cal. 3d 725,-, 575 P.2d 1162, 1172, 144 Cal. Rptr. 380, 390 (1978)).

101. Daly v. General Motors Corp., 20 Cal. 3d 725, -- , 575 P.2d 1162, 1176, 144 Cal.Rptr. 380, 394 (1978) (Clark, J., concurring).

102. See Safeway Stores, Inc. v. Nest-Kart, 21 Cal. 3d 322, -, 579 P.2d 441, 447-48,146 Cal. Rptr. 550, 556-57 (1978) (Clark, J., concurring); Skinner v. Reed-PrenticeDiv. Package Mach. Co., 70 Ill. 2d 1, -, 374 N.E.2d 437, 445 (1977) (Ward, C.J., dissent-ing); id. at -, 374 N.E.2d at 446-55 (Dooley, J., dissenting); Tolbert v. Gerber Indus.,Inc., - Minn. -, -, 255 N.W.2d 362, 372 (1977) (Rogosheske, J., dissenting).

103. Daly v. General Motors Corp., 20 Cal. 3d 725, -- , 575 P.2d 1162, 1178, 144 Cal.Rptr. 380, 396 (1978) (Jefferson, J., concurring in part and dissenting in part).

104. Cf. 20 Cal. 3d at -, 575 P.2d at 1180, 144 Cal. Rptr. at 398 (Jefferson, J., con-curring in part and dissenting in part) (criticizing the application of comparativefault principles in apportioning liability between a negligent plaintiff and a strictlyliable defendant).

105. Id.106. Id.

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is caused by each of the two noncomparables10 7 "[TIhe percent-age assessed will represent nothing more substantial or reason-able than that which results from the application of the jurors'instincts, speculations, conjectures and guesses. 1 08

If apportionment of fault by way of comparative contributionis to be extended to situations where not all defendants are eitherstrictly liable or negligent, allocation of loss would necessitate awholly different comparison of the liability-producing relationshipbetween the parties. 10 9 Factors such as size and technical exper-tise would be important concerns in determining the relative re-sponsibilities of, for example, a diversified manufacturer and aone-man installer.110

Attempting to apportion damages between tort-feasors wherethe theories of liability differ "constitutes a glaring failure to ap-preciate the limitations on, and the realities of, our jury trial sys-tem." 1 1' By starting with the premise that things as different asnegligent conduct and a defective product can be added togetherand assigned percentages to total 100%, juries would be expectedto reach a just result without possessing the means to reduce thetwo noncomparables to a common denominator.112 This may in-deed "be a feat which is beyond the prowess of an American

jury.' 1 1 3

Doubt exists that an intelligible jury instruction, which wouldpermit a jury to apply the principles necessarily required to justlyallocate losses, could be formulated.114 The complex task of con-sidering social and economic principles is thrust upon the jurywhen it is required to assign a percentage to the relative responsi-bility of a strictly liable defendant and a negligent defendant. 115

Ironically, courts are embracing comparative fault "at a time whenincreasing numbers of legal thinkers are proposing limitations on

107. Id.108. Id., at -, 575 P.2d at 1178, 144 Cal. Rptr. at 396.109. Tolbert v. Gerber Indus., Inc., - Minn. -, -, 255 N.W.2d 362, 372 (1977)

(Rogosheske, J., dissenting).110. Id.111. 20 Cal. 3d at -, 575 P.2d at 1180, 144 Cal. Rptr. at 398 (Jefferson, J., concur-

ring in part and dissenting in part); id. at -, -, 575 P.2d at 1183, 1185, 144 Cal. Rptr.at 401, 403 (Mosk, J., dissenting). See generally Henderson, Expanding the Negli-gence Concept: Retreat from the Rule of Law, 51 IND. L.J. 467, 468 (1976).

112. 20 Cal. 3d at -, 575 P.2d at 1180, 144 Cal. Rptr. at 398 (Jefferson, J., concur-ring in part and dissenting in part).

113. Levine, supra note 78, at 356.114. Tolbert v. Gerber Indus. Inc., - Minn. -, -, 255 N.W.2d 362, 372 (1977)

(Rogosheske, J., dissenting).115. See id. at -, 255 N.W.2d at 368 (Kelly, J., dissenting).

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the function of the civil jury or even its abolition." 116

Comparative fault, when applied to the allocation of damagesbetween strictly liable and negligent parties, may be equitable intheory, but it is difficult to apply equitably and precludes consist-ency of result. 117 Employing a process of decision that is predi-cated on conjecture and speculation, the factfinder will not arriveat consistent verdicts.118

This lack of consistency not only means that most contributionclaims will not be disposed of equitably but also that defense attor-neys may only rarely be able to reasonably evaluate the cases forpurposes of settlement." 9 And due to the fact that settlementplays a major role in the determination of accident claims the effi-cient administration of justice will be impaired. 20

Safeway Stores, Inc. v. Nest-Kart121 is a case which demon-strates the arbitrariness of the comparative fault system. 22 Nest-Kart manufactured the defective cart and was held strictly liable;Safeway maintained the cart and was held liable in negligence. Al-though the jury ascertained that Safeway was 80% at fault, it couldjust as well have concluded that the manufacturer was 80% re-sponsible.123 In his concurring opinion, Justice Clark addressedthis precise problem:

Blind inquiry into relative fault is no better than the flip ofa coin, and disputes over degree of fault must greatly in-crease the time and cost of litigation. While the compara-tive fault doctrine continues irresistible in the abstract,implementing the new doctrine requires both great admin-istrative expense and analytical and mathematical deter-mination for which the judicial system is not equipped. 124

116. Id. For an interesting article which questions the ability of a jury to under-stand the laws it is expected to apply, see Strawn & Buchanan, Jury Confusior AThreat to Justice, 59 JUD. 478 (1976).

117. Daly v. General Motors Corp., 20 Cal. 3d 725, -- , 575 P.2d 1162, 1177, 144 Cal.Rptr. 380, 395 (1978) (Clark, J., concurring); Levine, supra note 78, at 356. In thestates that have adopted comparative negligence statutes, the statute operates toapportion the loss between a strictly liable defendant and a contributorily negligentplaintiff on the basis of causation. E.g. , Caterpillar Tractor Co. v. Beck, 593 P.2d 871,888-89 (Alaska 1979).

118. See 20 Cal. 3d at -, 575 P.2d at 1176, 144 Cal. Rptr. at 394 (Clark, J., concur-ring).

119. Id.120. Id.121. 21 Cal. 3d 322, 579 P.2d 441, 146 Cal. Rptr. 550 (1978).122. See notes 88-99 and accompanying text supra.123. 21 Cal. 3d at -, 579 P.2d at 448, 146 Cal. Rptr. at 557 (Clark, J., concurring).124. Id. In a more recent case, Associated Constr. & Eng'r Co. v. Workers'

Comp. App. Bd., 22 Cal. 3d 829, 587 P.2d 684, 150 Cal. Rptr. 888 (1978), Justice Clarkreiterated his contention that the comparative fault system involves great expenseand requires determinations which triers of fact are ill-equipped to make. Id. at -,

[Vol. 13


Justice Clark suggested that the comparative system of lossallocation employed by the majority in Safeway is unfair both tothe liability insurance premium payer and to the accident victimbecause it increases distribution costs, while allowing arbitrary re-sults.12 Some people who would ordinarily purchase insurancewill not because of the inflated premium cost; this will result inlittle or no compensation to some victims for their injuries. 126

Those advocating the application of comparative principles toloss allocation between negligent and strictly liable tort-feasorspoint to the provisions of the proposed Uniform Comparative FaultAct. 127 In adopting the principles of comparative fault, this Act de-fines fault to include acts or omissions that constitute negligenceor subject a person to strict tort liability.128 But the Uniform Com-parative Fault Act possesses the same weaknesses as the major-ity's assumptions in the Safeway case. The Act does not provide aworkable formula by which the jury can avoid the task of employ-ing conjecture and occult divination in seeking to comparenoncomparable factors that comprise the Act's concept of totalfault.'

2 9

The difficulty in comparing relative responsibility does not,however, warrant the complete denial of contribution in suchcases.'l a "There is obvious lack of sense and justice in a rulewhich permits the entire burden of an unintentional loss, for whichtwo defendants were equally responsible, to be shouldered ontoone alone ... while the latter goes scot free.' u3

But this equitable principle does not require a comparativefault system. The usual method of distributing the loss has been todivide the total damages pro rata, or equally, among the tort-

587 P.2d at 684, 150 Cal. Rptr. at 899. He further advocated adoption of a simplersystem of apportioning damage in cases where more than one party is at fault. Id.

125. Safeway Stores, Inc. v. Nest-Kart, 21 Cal. 3d 322,-, 579 P.2d 441, 448,146 Cal.Rptr. 550, 557 (1978) (Clark, J., concurring).

126. Id.127. Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1181, 144 Cal.

Rptr. 380, 399 (1978) (Jefferson, J., concurring in part and dissenting in part). Thetext of the Uniform Comparative Fault Act is contained in NATIONAL CONFERENCEOF COMMISSIONERS ON UNIFORM STATE LAWS, HANDBOOK OF THE NATIONAL CONFER-ENCE OF COMMISSIONERS ON UNIFORM STATE LAws 343-53 (1977). For a readable dis-

cussion of the Act's provisions, see Wade, Uniform Comparative Fault Act, 14FORUM 379 (1979).

128. NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, HAND-

BOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS343, 345 (1977).

129. Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1181, 144 Cal.Rptr. 380, 399 (1978) (Jefferson, J., concurring in part and dissenting in part).

130. Id. at -, 575 P.2d at 1176, 144 Cal. Rptr. at 394 (Clark, J., concurring).131. W. PROSSER, supra note 13, § 50.

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feasors without regard to comparative fault. 132 The pro rata ap-proach eliminates the necessity of the difficult task of comparingresponsibility in cases where liability is predicated on differenttheories. A pro rata system would foster consistency and predict-ability, and would facilitate evaluation and settlement of claims.133

The adoption or retention of a pro rata method of apportion-ment will not eliminate all inequities. Arbitrary results are inher-ent in attempting to adjust a loss between the parties responsible,when their liability is based on different acts. 34 The absence of ameasuring standard renders the application of comparative faultprinciples to the strictly liable defendant versus negligent defend-ant situation not only inequitable and arbitrary but ,also inconsist-ent and unpredictable.135 Substantial elimination of two of thefour defects by establishing a pro rata system of contribution isworthy of a court's consideration.

CONCLUSION

The equitable apportionment of damages among those respon-sible for a single harm is an important goal of tort law. Loss alloca-tion systems derived from common-law indemnity theories andoriginally developed for use in negligence actions are'poorly suitedfor use in strict liability cases. The ability of a tort-feasor, even oneheld strictly liable, to obtain contribution from a jointly responsi-ble tort-feasor seems essential to achieve an equitable distributionof the loss.

Contribution is, however, a corollary of fault-based liability,whereas, in most jurisdictions products liability is strict liability asa matter of public policy and is not based on fault. Even so, courtscan and should balance the policy concerns underlying contribu-tion with those of strict liability. The difficulty of formulating a log-ical system of contribution does not warrant the denial of loss

132. Distribution of Loss, supra note 6, at 232.133. Cf. 20 Cal. 3d at -, 575 P.2d at 1176, 144 Cal. Rptr. at 394 (Clark, J., concur-

ring) (advocating a uniform discount system of loss allocation). Even under a prorata system, a complete shifting of the loss will remain appropriate where one party(such as a small neighborhood retailer) is held liable on a purely technical basisand the other party (a large manufacturer, for example) is 100% responsible. Thejury in such a case might conclude that the retailer's negligence was not an in-dependent and concurrent cause of the plaintiff's injuries. See Jensvold, supra note2, at 742; The Application of Contribution, supra note 32, at 185.

134. See Daly v. General Motors Corp., 20 Cal. 3d 725, -, 575 P.2d 1162, 1177, 144Cal. Rptr. 380, 395 (1978) (Clark, J., concurring); Safeway Stores, Inc. v. Nest-Kart,21 Cal. 3d 322, -, 579 P.2d 448, 146 Cal. Rptr. 550, 557 (1978) (Clark, J., concurring).

135. See 20 Cal. 3d at -, 575 P.2d at 1177, 144 Cal. Rptr. at 395 (Clark, J., concur-ring); Levine, supra note 78, at 355-56.

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apportionment in products liability actions. Rather, it requires theestablishment of a better and simpler system of apportionment.

It is submitted that the following two-tiered method of loss al-location among multiple defendants in products cases will promoteconsistency in the law while it serves to fairly distribute the vic-tim's loss.

In cases where the liability of defendants on the same level ofthe distributive chain is predicated on the same theory of liability,principles of comparative contribution should be utilized to appor-tion damages on the basis of each tort-feasor's relative degree ofresponsibility in causing the plaintiff's injury. The presence of acommon standard of comparison enables the factfinder to assignpercentages of responsibility and apportion damages with an ac-ceptable measure of accuracy and consistency.

In cases where contribution is sought between defendants lia-ble under different theories, damages should be allocated equallyamong the responsible parties. It would appear that any arbitrari-ness present in such a system is more than offset by the benefitsflowing from elimination of speculative and unpredictable jury ver-dicts. Recognition of the essential differences between theories ofliability would be preserved and a reasonably equitable distribu-tion of losses would be achieved.

In an apparent attempt to do justice in every case, some courtsare adopting comparative fault systems to apportion damages be-tween joint tort-feasors, whether a common denominator existswith which to compare their respective responsibility for the plain-tiff's injury or not.136 As a perceptive commentator stated, how-ever, "[b]ald assertions which conclusively abandon essentialdifferences in theories of liability should never serve as a methodof resolving important legal issues. ' 137 Sound judicial decisionmaking requires a critical analysis of the potential consequences,both conceptual and pragmatic, which might result from the adop-tion of any given system of loss allocation to the products liabilityaction.

Geoffrey V. Pohl-'81

136. See, e.g., Jorae v. Clinton Crop Serv., 465 F. Supp. 952 (E.D. Mich. 1979); SunValley Airlines, Inc. v. Avco-Lycoming Corp., 411 F. Supp. 598 (D. Idaho 1976);Safeway Stores, Inc. v. Nest-Kart, 21 Cal. 3d 322, 579 P.2d 441, 146 Cal. Rptr. 550(1978); Skinner v. Reed-Prentice Div. Package Mach. Co., 70 Ill. 2d 1, 374 N.E.2d 437(1977); Missouri Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. 1978).

137. Levine, supra note 78, at 355.

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Documents

Comparative Contribution and Strict Tort Liability: A