Wednesday, February 27, 2013

Allocation of Fault a/k/a The Discount Coupon Defense

    Clients naturally ask how a party that clearly has acted wrongfully can not be responsible for paying 100% of the losses resulting from wrongful conduct.  For example, how can the driver making the bad left turn not be responsible for the injuries he has caused, how can the bar that wrongfully sold liquor to a minor not be responsible for the resulting drunk driving accident, and how can the foster home not be responsible for its employee's sexual assault on a resident.  The answer is the Discount Coupon defense in which the responsible party argues that, because others are at fault, its legal responsibility is limited to its share of the fault.

   Because of laws passed in 1997 questionably called "Tort Reform,"  parties legal responsibility is limited only to their share of fault.  What this means is that parties that have acted wrongfully look to blame others, including the accident victims for accidents.  For example, the driver making the bad left turn will say that the accident victim driving the other vehicle should have seen the bad left turn and avoided the accident, the bar will say that the minor is more responsible for the accident, and the foster home will say that its employee is responsible for the assault. 

   How does this work?  For cases that go to trial, the Court requires juries to allocate percentages of responsibility for accidents.  If the jury finds that accident victim to be 50% responsible for the accident, the bad left driver only has to pay 50% of the resulting losses.  If jury finds the minor is 90% responsible for driving drunk, the bar that sold the liquor only pays 10% of the resulting losses.  Similarly, if the jury finds the foster home employee is 90% responsible for the sexual assault, the foster home only pays 10% of the resulting loss.   In other words, the percentage is equivalent to a Discount Coupon for wrongful conduct. 

   I make no attempt to justify this system as being either fair or just, particularly with respect to situations like the bar or the foster home which the law requires to protect the innocent public from their wrongful actions.  However,  the Legislature in its infinite wisdom says this is how justice in Alaska works.    Accident victims have to play their hand smartly.  See