Gregory C. Sisk


This Article defends RCW 4.22.070 and opposes the deconstruction of legislative tort reform. The Article’s premise is that the legislature did indeed intend to accomplish a significant reform of the liability system and to take a long, purposeful stride toward the implementation of comparative fault as applied to all parties in tort litigation. The Article concludes that the legislature adopted language that adequately, if sometimes imperfectly, achieves that purpose. The Article discusses the following: the meaning of “fault” as applicable through RCW 4.22.070; the nature of the entities to whom fault must be allocated; the responsibility for raising the culpability of an unjoined entity and the burden of proof on allocation of fault; the manner in which damages are to be apportioned among the culpable parties; the separate rule for parties acting in concert or as agents; the limited form of joint and several liability that applies when the plaintiff is without fault; the provisions for settlement and contribution under the statute; and the three exceptions to the statute. Additionally, the Article examines two areas in which RCW 4.22.070 must be read in conjunction with other statutes to as to give the fullest possible effect to both legislative enactments. First, the article outlines a recent Washington Supreme Court decision concerning the application of comparative responsibility principles to the workers compensation program. Second, the Article looks at the application of the comparative fault principles of the 1986 modification of joint and several liability in the context of the 1981 retailer relief provision, which granted broad relief to retailers but left them exposed to liability in certain circumstances, such as when the manufacturer of the product was insolvent. Lastly, the Article offers some ruminations on the future course of the common law as it develops with respect to joint and several liability in those few areas that fall outside the express mandate of the 1986 statute.