Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
In recent years, tort reform statutes have often adopted variations on joint and several
liability. Utah abolished joint and several liability altogether, creating by statute the rule that all
losses can be apportioned, even if they would have been considered indivisible at common law.
UTAH CODE ANN. § 78B-5-818; see Egbert v. Nissan Motor Co., 228 P.3d 737 (Utah 2010).
Wisconsin took a slightly narrower approach and only abolished joint liability in cases in which
the plaintiffs were contributorily negligent. WIS. STAT. § 895.045. New Hampshire abolished
joint and several liability for any defendants who were less than 50% at fault, but held that nonparties
to the suit would be included in the fault calculation. This put the plaintiff in the strange
position of defending non-parties against defendants, who would attempt to pin the blame on
absent actors. DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793, 803 (2006). Illinois
similarly removed joint and several liability for parties less than 25% responsible but included
immune parties in the apportionment of fault. This is particularly damaging to workers pursuing
claims against parties other than their employer for workplace-related injuries, because the
employer (who is immunized from tort suits by worker’s compensation laws) is often held to be
the primary party at fault and other parties (such as product manufacturers with deep pockets) are
only required to pay a small portion of the total damages. See Unzicker v. Kraft Food Ingredients
Corp., 783 N.E.2d 1024, 1032 (Ill. 2002).
Apportionment questions, of course, presume more than one defendant who is liable for
something. Sometimes, however, multiple defendant cases can raise the question of whether
anyone may be held liable at all.
Kingston v. Chicago & N. W. R. Co., 191 Wis. 610, 613 (1926)
We therefore have this situation: The northeast fire was set by sparks emitted from
defendant’s locomotive. This fire, according to the finding of the jury, constituted a proximate
cause of the destruction of plaintiff’s property. This finding we find to be well supported by the
evidence. We have the northwest fire, of unknown origin. This fire, according to the finding of
the jury, also constituted a proximate cause of the destruction of the plaintiff’s property. This
finding we also find to be well supported by the evidence. We have a union of these two fires 940
feet north of plaintiff’s property, from which point the united fire bore down upon and destroyed
the property. We therefore have two separate, independent, and distinct agencies, each of which
constituted the proximate cause of plaintiff’s damage, and either of which, in the absence of the
other, would have accomplished such result.
It is settled in the law of negligence that any one of two or more joint tortfeasors, or one of
two or more wrongdoers whose concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from their joint or concurrent acts of
negligence. . . .
[The court observed, however, that in some circumstances, a defendant who wrongfully
set a fire might not be responsible for tort damages]. From our present consideration of the
subject we are not disposed to criticise the doctrine which exempts from liability a wrongdoer
who sets a fire which unites with a fire originating from natural causes, such as lightning, not
attributable to any human agency, resulting in damage. It is also conceivable that a fire so set
might unite with a fire of so much greater proportions, such as a raging forest fire, as to be
enveloped or swallowed up by the greater holocaust, and its identity destroyed, so that the greater
fire could be said to be an intervening or superseding cause.
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