As the doctrine of comparative negligence emerged throughout the last few decades, the concept of apportionment of liability quickly became commonplace in tort law litigation. See Harvey S. Perlman and Gary T. Schwartz, “Third Annual Judges and Lawyers Symposium: The Restatement (Third) of Torts and the Future of Tort Law: Overview by the ALI Reporters: General Principles,” 10 Kan. J.L. & Pub. Pol’y 8 (2000); See generally, Restat 3d of Torts: Apportionment of Liability, §26 (3rd 2000). While the doctrine of joint and several liability ensured that plaintiffs could fully recover against any one defendant for their injuries, it also left defendants at risk of taking more of the liability for an incident than they deserved. Relatively recently, courts have turned to apportionment of liability as a potential solution to this problem.
As a result of the tort reform initiative, some states have limited joint and several liability by designating the proportionality of an individual’s fault. See Nancy C. Marcus, “Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability,” 60 Ark. L. Rev. 437, 440 (2007). However, courts have been more hesitant to adopt this practice when the defendant is unidentified and not a party to the lawsuit. Id. at 442-443. In New Jersey, when the question of liability is in dispute for negligence and strict liability cases, the Comparative Negligence Act mandates the trier of fact make the following findings: (1) the amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the party’s injuries; and (2) the extent, in the form of a percentage of each party’s negligence or fault with the total of all percentages being 100 percent. N.J.S.A. §2A:15-5.2.
