Who Should Pay?

This session of the New Hampshire Legislature has a bill before it to amend RSA 507:7-e,1a the so called ”Apportionment of Damages Statute” .The purpose of this bill is to remedy an inequity which resulted from a decision in the 2006 case of DeBenedetto v CLC Consulting Engineers .In that case the jury was allowed to apportion uncollectable damages to a party not named in the lawsuit and in fact immune from liability . The argument made in support is that it is not fair for a defendant to pay for damages caused by another “party” possibly at fault but not a party to the lawsuit . The present statute is apparently a compromise from a pure joint and several liability concept where any at fault defendant is liable for the total damages regardless of their contribution to the injury . Under the present statute a defendant is only liable for his share of the damages if his damages are less than 50%. If his contribution to injury is over 50% he would be liable for the total damages . On the other hand a plaintiff who is more than 50% at fault for his injury would recover nothing . The argument that a partially at fault defendant shouldn’t bear the burden of paying all the damages where there is another party possibly at fault who can’t be sued forces the cost of injury to be borne by the plaintiff . Is it therefore fair that an injured party bear the burden of paying for a party that couldn’t be sued in the first instance ? Often times the Courts in interpreting a statute or attempting to determine legislative intent use the term “Social Policy”. Social Policy is not a legal term. It’s an extralegal attempt at fairness by benefiting a class . It seems that a fairness argument in this case should apply to the injured party not those scrambling to escape responsibility
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