Damage Apportionment in Maine: A Proposal for Reform

Most jurisdictions have some form of comparative negligence system. Such systems reflect an evolving policy of equating liability with a proportional percentage of fault. Yet a vast majority of jurisdictions that have adopted comparative negligence also retain the common law rules of either joint and several liabilities or entire liability. Although these rules derive from discrete common law roots, the rules currently stand for the proposition that a tort-feasor should be responsible for all the damages his or her negligence proximately caused. Thus, even though a jurisdiction adopts comparative negligence, simultaneous application of the incongruent common law rules may frequently result in a tort-feasor being held liable for damage in excess of his or her proportionate share of the damages. Thus, this Comment proposes legislation to provide a comprehensive damage apportionment system in which a defendant pays for his or her share of fault. The system includes flexible provisions for equitable apportionment of unrecoverable damages, depending on the recovery setting.