Please can someone shed light on this for me - from Pieper p 85 # 5 NY exam book
For comparative negligence - are the following all synonyms of the word comparative negligence as they seem to be used interchangeably or am I getting the wrong end of the stick:
1. equitable remedy of contribution
2. apportionment of liability
3. apportionment of damages
--Tough to say without seeing the terms in context, but here are some thoughts.
--Equitable remedy of contribution is the action whereby a defendant sues a codefendant under joint and several liability for an overpayment to plaintiff. For example: in an automobile negligence case, P wins a settlement of $100,000, where D1 is 60% liable and D2 is 40% liable. If P gets D2 to pay $100,000 to him, then D2 can file suit against D1 using the equitable remedy of contribution (or simply "contribution") to get D1 to pay D2 $60,000 (D2's apportionment of the damages). This is to be distinguished from indemnification, where a person is totally reimbursed by a third party (contractual assumption of liability or other theory such as respondeat superior). While "equitable remedy of contribution" springs up in a comparative negligence system, it is not synonymous with comparative negligence.
--Apportionment of liability is exactly what it sounds like, but it is not synonymous with comparative negligence. For example, P could be found 30% liable, D1 55% liable, and D2 15% liable. That would be the apportionment of liability, but this would also be used in a contributory negligence system (which NY does NOT have). In a contributory negligence system, P's apportionment of liability would be important because if he had any apportionment it would bar his action and there would be no recovery. In comparative negligence, depending on the system, P's apportionment would affect his recovery in different ways. NY has a pure comparative negligence system, subject to Article 16's limitations described below.
--Apportionment of damages. This is different from apportionment of liability in that in the P 30%, D1 55%, D2 15% example, with a $100,000 settlement, D1 would be apportioned $55,000 and D2 would be apportioned $15,000. P would not have any apportionment of damages because P would not have to pay to himself. (I'm reasonably confident in this part of my reply, but would be open to further refinement--actually I'm open to further refinement on all counts; I readily acknowledge my own fallibility.)
--Keep in mind Article 16 of the CPLR--a bar exam favorite. Article 16 limits joint and several liability to certain circumstances (see WARM DIPS in Pieper notes). It doesn't change the apportionment of damages, but in a non-WARM DIPS scenario, when a defendant is liable for 50% or less of the damages he can't be made to pay more than his share. (In the first example above, the case was an automobile negligence case, which fits under the A in WARM DIPS, and therefore D2 could be made to pay the $100,000.)
--If this doesn't help, maybe you can send me the terms used in context.
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