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Lewis v. Samson9/14/1999
llow.
{75} The five factors are mentioned in one sentence in Lujan. See 120 N.M. at 526, 902 P.2d at 1029. Lujan took the list of factors from footnote 2 in William L. Prosser, Handbook of the Law of Torts § 46 (4th ed. 1971). When one reads the footnote in its entirety and in the context of the paragraph to which it is attached, one may question whether the five-factor test is a useful way to approach the problem. The paragraph, together with footnote 2, states:
The terms "joint tort" and "joint tortfeasors" have been surrounded by no little uncertainty and confusion. There have been various attempts to define them, and to propose testsý of one kind or another as to when this may be found to exist. An examination of the multitude of cases in which they are to be found leads to the Conclusion that they have meant very different things to different courts, and often to the same court, and that much of the existing confusion is due to a failure to distinguish the different senses in which the terms are used, which often has had an unfortunate effect upon the substance of the law. Since a "joint tort" can have significance only in so far as it may involve some definite legal result, it is possible to approach the problem by distinguishing the various consequences which follow from it, and to indicate how far they are related, or unrelated, to one another.
fn2 Thus, the identity of a cause of action against each of two or more defendants; the existence of a common, or like, duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria, as distinguished from the same damnum. See 1 Cooley, Torts, 4th Ed. 1932, 276-278; Clerk and Lindsell, Torts, 8th Ed. 1929, 58; Brunsden v. Humphrey, 1884, 14 Q.B.D. 141, 147; Petcoff v. Pestoret Lawrence Co. , 1913, 124 Minn. 531, 144 N.W. 474; Farley v. Crystal Coal & Coke Co., 1920, 85 W.Va. 595, 102 S.E. 265; The Koursk, P.140.
(Footnote 1 omitted). I think it is fair to infer from the language of the passage that Dean Prosser himself was not endorsing the use of any of the listed factors. And the fact that all the authorities cited in the footnote predate the Federal Rules of Civil Procedure might raise a doubt about whether all the factors are relevant under current law. Lujan itself does not explain why any of the five factors is relevant (it introduces the list by saying merely that "courts have considered several other factors that are relevant," 120 N.M. at 426, 902 P.2d at 1029), nor did the Lujan court purport to apply the five-factor test to the case before it.
{76} What I would take from Prosser's treatise is not a five-factor test but an admonition to focus on the particular context in which the issue of successive, concurrent, or joint tortfeasors arises. The context of this case is the determination of how to apportion damages among tortfeasors who are responsible for distinct causes of a plaintiff's damages.
{77} The most reasonable approach to the issue in this context is the approach taken by the Restatement. Section 50 states:
Apportionment of Liability When Damages Can be Divided by Causation
(a) When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts. The factfinder then separately apportions liability for each indivisible component part [as provided elsewhere in the Restatement].
(b) Damages can be divided by causation whe
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