An alternative view of refining comparative fault in Florida.

• Author: Little, Joseph W.

In the January 2015 issue, "Refining Comparative Fault in Florida: A Causation Theory for Apportioning Fault" satisfactorily chronicled changes to the law of torts in Florida (particularly the law of negligence) over the past 40 years. This article provides a different perspective on how comparative fault in Florida should be revised.

The common law of negligence had been fairly well settled for almost two centuries when the Florida Supreme Court issued its seminal Hoffman v. Jones, 272 So. 2d 529 (Fla. 1973), decision. In Florida, as most everywhere, the common law included the rules that contributory negligence of a plaintiff, however slight, barred recovery and that no-contribution was permitted among joint tortfeasors. The first rule was solidified in Butterfield v. Forrester, 11 East 60 (1809), and the second in Merry weather v. Nixan, 8 Durn & E 186 (1799). These rules were based largely on the common law's repugnance against resolving disputes between wrongdoers. In short, when everyone was at fault, the common law let the harm lie where it fell.

The common law has always deemed tortious behavior to be a form of moral wrongdoing. As stated by Lord Atkin in Donoghue v. Stevenson, 1932 S.L.T.317 (1932), "The liability for negligence, whether you style it such or treat it as in other systems as a species of'culpa' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay." Crimes are more immoral than torts, thus, the common law limited tort remedies to compensation except in egregious instances that justify punitive damages.

By about 1800, the common law tort of negligence had evolved to require the elements that all law students learn. Duty, breach, causation (including proximate causation), and damages. Plaintiffs were required to prove all four elements and failure to prove any one denied recovery. Similarly, even if the plaintiff proved all the elements against a defendant, the defendant would still prevail by proving the plaintiff guilty of contributory negligence.

Proof of causation-in-fact was (and is) essential. If the plaintiff proved the injury complained of would not have occurred in the absence of ("but-for") a defendant's negligence (or alternatively that the defendant's negligence was a substantial factor of the harm), causation-in-fact was proved. If the plaintiff failed to prove this causative link, then the plaintiff's case against the defendant failed even though the defendant owed the plaintiff a duty of care and breached it. As the great Cardozo said in Palsgrafv. Long Island R. Co., 162 N.E. 99, 99 (1928) (quoting Pollock on Torts), '"Proof of negligence in the air, so to speak, will not do.'" To assess the need to change the current law of Florida, these principles should be a fixed starting point: First, no party is liable to a plaintiff for any harm that would have been caused even if the party had not been negligent (i.e., if the plaintiff would have been harmed anyway), and second, no defendant should be absolved of liability for any harm that would not have occurred in the absence of the defendant's fault. In short, the law should not acknowledge a fiction of partial liability for an indivisible injury.

The early common law held joint tortfeasors jointly and severally liable for any indivisible injury their joint negligence caused a plaintiff to suffer. Thus, if A and B, who might even have been strangers, negligently crashed their carriages and rolled over P, an innocent pedestrian on the road, A and B would each be individually liable for all of P's indivisible injuries and the two would remain jointly liable until Ps joint and several judgment was fully satisfied. (In contrast, if P's various injuries could be discretely separated and attributed, then each defendant would be liable only for the discrete injuries caused solely by its negligence. For example, A might have run over P's arm and B over P's leg.)

The common law also permitted plaintiffs to control their cases. Hence, in the circumstances above, P might choose to sue only A (or B) and obtain and collect an individual judgment. Or P might sue both A and B and execute a joint and several judgment against whomever. In any event, if P satisfied the judgment only against A (or B), the no-contribution rule would stick A (or B) with the whole loss.

Although the common law was unfriendly to wrongdoers, it possessed the beauty of simplicity. Negligent plaintiffs recovered nothing. End of story. By the same token, a tagged recipient of a joint and several judgment in favor of an innocent plaintiff could have no contribution from the others. In short, the common law denied ancillary actions among joint tortfeasors.

Some common law courts (and legislatures) were never happy with the consequences of these rules in egregious cases. Proposals to amend the no contribution rule generally preceded proposals to...