The Apportionment of Tort Responsibility

JurisdictionColorado,United States
CitationVol. 15 No. 5 Pg. 741
Publication year1985
15 Colo.Law. 741
Colorado Lawyer

1985, May, Pg. 741. The Apportionment of Tort Responsibility


Vol. 15, No. 5, Pg. 741

The Apportionment of Tort Responsibility

by Kim B. Childs

[Please see hardcopy for image]

Kim B. Childs, Denver, is an associate of the firm of Cooper & Kelley, P.C.

This article examines the interrelationship among three aspects of the Colorado fault apportionment system: the Colorado Comparative Negligence Act ("Negligence Act"),(fn1) Colorado's version of the Uniform Contribution Among Tortfeasors Act ("Contribution Act")(fn2) and common law indemnity. The article describes this system and discusses its underlying policies and consequences for practitioners.(fn3)

Fault is the historical basis for apportionment. It continues to be the basis of the Contribution Act and common law indemnity, as well as the Colorado Product Liability Act.(fn4) It is arguable that the Colorado Negligence Act, especially when compared to the comparative fault provisions of the Colorado Product Liability Act, exhibits a legislative desire to distinguish between apportionment based on fault and apportionment based on negligence. Apportionment between the injured party and the tortfeasors is unique in purpose. This alone may be enough to account for the legislative distinction.


Comparative Negligence

The Colorado legislature adopted the Negligence Act in 1971 and, in doing so, alleviated many of the harsh consequences of the common law rule of contributory negligence.(fn5) Colorado was one of the first states to adopt the concept of comparative negligence. Significant legislative and judicial consideration of the issue in other jurisdictions(fn6) has resulted in the creation of at least five general variations of comparative negligence systems in different states.(fn7)

The purpose of comparative negligence is the distribution of responsibility between the injured party (the plaintiff) and one or more of the tortfeasors responsible for causing that injury (the defendants). Comparative negligence principles do not theoretically attempt to distribute fault among the defendant tortfeasors; traditionally, that function has been left for legislative or judicial enactment of a contribution system.(fn8)

The most easily distinguishable factor in comparative negligence systems is whether or not the plaintiff will be barred from recovery by virtue of his equal or greater percentage of negligence in relation to the defendants. The system in which the plaintiff is not barred is a "pure comparative" system; that in which he is barred is known as a "modified comparative" system. Twelve jurisdictions have either judicially or legislatively adopted pure comparative systems.(fn9) Two have adopted the Uniform Comparative Fault Act ("UCFA"), which includes a pure comparative provision in its terms.(fn10)

The "modified" system breaks down further into four major subdivisions: (1) the "equal division";(fn11) (2) "slight/gross";(fn12) (3) "50 percent not-greater-than";(fn13) and (4) "50 percent not-as-great-as" states.(fn14) The Colorado statute falls into the last category and, thereby, appears to have held on to a vestige of the common law contributory negligence rule that a negligent plaintiff should not recover.


The Colorado Contribution Act was adopted in 1977, as a version of the Uniform Contribution Among Tortfeasors Act. That Uniform Act evolved in essentially three variations. The 1939 version provided for equal pro-rata division among joint tortfeasors, but had an "optional provision," another variation, which allowed for proportionate division among joint tortfeasors.(fn15) The 1955 version dropped the optional provision in its standard form, but Colorado and Florida added their own provisions for proportionate division legislatively.(fn16)

Several states have fashioned non-Uniform Act contribution statutes. Some still require equal pro-rata distribution among tortfeasors,(fn17) some include a right to contribution in their comparative negligence statutes, and others never followed the common law prohibition of contribution in the first place.(fn18) Of the states which adopted the 1955 version, many have switched to proportionate distribution through their comparative negligence statutes.(fn19)

The underlying purpose of contribution is to distribute loss equitably.(fn20) Therefore, it aims at the same general allocation goal as comparative negligence and indemnity. However, it is conceptually distinct from both---contribution does not apportion loss between the injured party and the tortfeasors, and it is not based on the notions


of pre-existing duty or quality of fault.(fn21) Conceptually, contribution is somewhat closer to indemnity than is comparative negligence because it attempts to allocate loss among tortfeasors instead of between the injured party and the tortfeasors.(fn22)

Provisions of contribution acts vary immensely. The variations of the Uniform Act specifically delineate the situations in which they apply. For instance, the Colorado Contribution Act applies only to tortfeasors who are jointly and severally responsible for the same injury.(fn23) Subsequent tortfeasors, for example, can be those with no common liability for the injury or those against whom separate and distinct causes of action exist and by virtue of which separate wrongs resulted. These tortfeasors would not be joint tortfeasors under the Colorado act and thus are not subject to contribution.(fn24)

The Colorado Contribution Act, moreover, precludes an action for contribution by one joint tortfeasor who has settled with the injured party against any other tortfeasor whose liability was not extinguished by the settlement.(fn25) It also precludes contribution against any tortfeasor who has obtained a covenant not to sue from the injured person.(fn26) These are only a few of the specific provisions of the Colorado Contribution Act.


Indemnity is based on the equitable doctrine of unjust enrichment and arose as a means to help ameliorate the common law doctrine of no contribution.(fn27) Unlike comparative negligence or contribution, indemnity compares the character and nature of the wrongs committed and the existence of express or implied pre-existing duties among the tortfeasors.(fn28) The purpose of this comparison is to determine when equity and justice require a shifting of loss among the tortfeasors.

The two major kinds of indemnity which have been recognized universally are contractual indemnity and quasicontractual indemnity (tort indemnity implied-in-law). Contractual indemnity breaks down further into express contracts and contracts implied-in-fact. Quasi-contractual indemnity is the type of indemnity which has received the most commentary because it is so hard to define. Contractual indemnity depends upon contract principles and is not related to tort responsibility; quasi-contractual indemnity is the area that relates to the other means of apportioning tort responsibility.

Quasi-contractual indemnity is traditionally distinguished by "active-passive" or "primary-secondary" criteria.(fn29) With these criteria, courts find an implied-in-law duty running from one tortfeasor to another, based upon quality of fault or a pre-existing relationship. It is similar to the one traditional quasi-contractual indemnity category of implied duties which is not dependent upon the active-passive or primary-secondary criteria. That category includes the master-servant type of relationship, which is the historical basis for the doctrine of respondeat superior.(fn30)

Indemnity is not based on the difference in the degree of negligence nor on any doctrine of comparative negligence. The primary-secondary distinction which is fundamental to quasi-contractual indemnity is not the same as "more negligent" and "less negligent."(fn31) Contributory negligence is not a defense to indemnity,(fn32) nor is there a 50 percent bar in an indemnity action.

Contribution and indemnity are mutually inconsistent remedies and are universally distinguished. Neither contribution nor indemnity are tort actions, but contribution arises out of payment by one joint tortfeasor of more than his proportionate share of loss, whereas indemnity arises out of the existence of a pre-tort duty. The Contribution Act specifically reserves common law indemnity as a continuing viable concept and part of the total tort responsibility allocation system in Colorado.(fn33)


Subfactors as a Directional Tool

Any attempt to define the interrelationship among the three factors of the apportionment system in a given jurisdiction is difficult. The difficulty stems from the numerous subfactors in each component of the system and how they interrelate. One thing that may help to define a particular system is to examine some of the subfactors. These include:

1) whether the system retains joint and several liability;(fn34)

2) what type of special verdict form is needed---what the jury is told;

3) what the system does with multiple defendants;

4) what the system does with nonparty tortfeasors;

5) what the system does with set-off of counterclaims when plaintiff and defendant are both negligent;

6) the availability to defendants of rules allowing joinder of additional tortfeasors;

7) in determining if plaintiff is barred, whether plaintiffs negligence is compared to each individual defendant or to all combined defendants (or even to all tortfeasors, whether or not joined);(fn35)

8) the effect of releases and partial settlements on remaining parties; and

9) whether the comparative negligence statute includes a right to comparative contribution among the tortfeasors.

Perhaps the most common context for discussing...

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