In 2002, the Uniform Law Commissioners promulgated the Uniform Apportionment of Tort Responsibility Act (UATRA). There were also some minor amendments in 2003. It succeeds earlier acts going back to 1939. In that year the ULC addressed the first Uniform Contribution among Joint Tortfeasors Act. A further revision of this Act was promulgated in 1955. There were 22 enactments of this Act in either the 1939 or 1955 versions. In 1977, the ULC took a step in a more radical direction with the Uniform Comparative Fault Act. It was not successful in the state legislatures, though it did impact the common law.
The Contribution among Joint Tortfeasors Acts were promulgated when contributory negligence on the part of a claimant in a negligent tort action was an absolute defense against liability. Any small contribution of fault by the plaintiff was enough to cut off compensation for injury. These acts addressed the questions of multiple liability when there was more than one person (tortfeasors) responsible for injury to another. Although tortfeasors who acted in concert were jointly and severally liable in the common law, this was not the case for other multiple tortfeasors. The Uniform Act provided for joint and several liability, with right of contribution in the event one tortfeasor would pay another tortfeasor’s share even when there was no action in concert. This meant that an injured person could potentially receive full compensation even if some tortfeasors did not actually provide compensation.
Contributory negligence as an absolute bar to compensation began to wane as a doctrine of personal injury law in the 1960's and 1970's. When fault may be attributed to personal injury as a cause, there is an inherent implication of unfairness in the contributory negligence doctrine. Why should a plaintiff, for example, whose own fault may contribute 10% to his or her injury, be totally uncompensated when the defendant or defendants were responsible for the other 90%? The doctrine of comparative fault began to replace the older, unfair contributory fault doctrine.
The 1977 Uniform Comparative Fault Act is the purest expression of the comparative fault doctrine. It is a 100% comparative fault act. If an injured person contributes 90% to his or her own injury, the other tortfeasors are responsible for 10%. Under the 1977 Uniform Comparative Fault Act, they would pay 10%. The states had already begun to adopt modified comparative fault, and the trend to modified comparative fault continued even after 1977. It is far and away the majority rule in the United States. The Uniform Comparative Fault Act was never popular in the state legislatures, though as noted, some courts used it as authority, thereby incorporating it into the common law as a minority rule.
Comparative fault in either the pure or modified form do not work well with the concept of joint and several liability premised upon contributory negligence as an absolute defense. If a tortfeasor is responsible for 10% of an injury, another tortfeasor is responsible for 80% of the injury, and the injured person is responsible for 10% of his or her own injury, a rule that holds the 10% tortfeasor potentially liable for the other tortfeasor who is 80% responsible, appears to be inherently unfair. In addition, the old rule does not take into account the percentage of harm attributable to the injured person. As time has gone on, joint and several liability have been diminished or limited from state to state, as comparative fault has replaced contributory negligence across the country. The development is uneven and confusing from state to state, however.
The new Uniform Apportionment of Tort Responsibility Act attempts to bring these developments together in one uniform act that reconciles the central questions not well resolved in most states. It replaces the Uniform Comparative Fault Act and the older Uniform Contribution among Joint Tortfeasors Acts.
To begin with, the new Uniform Act adopts a partial or modified form of comparative fault. In the modified form, when an injured person’s contributory fault reaches a sufficient enough proportion, it becomes an absolute defense. Under that sufficient amount, the injured person’s fault is measured against the fault of all other tortfeasors to determine the percentage for which each is responsible. Sufficient amount to trigger an absolute defense may be either 50% or more than 50%. A state is offered the opportunity to choose either of these formulae. Dominantly, the states have adopted one or the other of them already. The Uniform Act allows a state to choose the modified version it wishes to adopt, anticipating that a state will continue its current version.
Joint and several liability when multiple tortfeasors act in concert remains, along with some other situations in which a finding of joint and several liability continues to be justifiable. Otherwise, joint and several liability is not continued. If there is joint and several liability, there is also a right of contribution if a tortfeasor must pay the share of another.
If there are multiple tortfeasors and there is no joint and several liability, the judgment assesses the responsibility of multiple tortfeasors severally to each. The injured party’s fault is part of the assessment of responsibility. The injured party has the opportunity, if a claim is not paid by a tortfeasor in the time an injured person has to file a motion for a new trial, to move for a reallocation proceeding. In that proceeding the court may determine if there is an uncollectable share, and thusly reallocate the uncollectable share among all who remain responsible. Any tortfeasor who pays the uncollected share of another has recourse against that other in all cases.
The Uniform Act deals with other problems of both comparative fault and joint and several liability. For example, it provides for the effect of a release of a tortfeasor before adjudication of responsibility. No other tortfeasor is charged with the responsibility of the released tortfeasor. The injured party in essence assumes the share.
The rules of the Uniform Apportionment of Tort Responsibility Act reconcile the inherent conflicts in the uneven development of comparative fault doctrine and the problems of multiple tortfeasors. It is a useful addition to the law in every state.