In those jurisdictions, it is essential to start with the language of the statute in analyzing whether the intentional tortfeasor should be included in the apportionment of fault. Both hold a party responsible for its share of the fault, and no more. Some courts have found apportionment of fault is especially appropriate where a negligent defendant is being sued for failing to protect against a third party's intentional acts. There are numerous arguments against apportionment. Principles of construction.
Statutes modifying or abolishing joint and several liability are in derogation of the common law.
Consequently, they must be narrowly construed in favor of the common law and, thus, against apportionment.13 Any doubts about whether there should be apportionment should be resolved against it. If the statute's legislative history speaks to apportionment, courts must examine the discussion closely. More likely, though, the legislature has not discussed this issue. One can argue that because legislators never suggested that negligent defendants could minimize their liability by blaming the very perpetrators whose wrongdoing they had a duty to prevent, there should be no apportionment of fault. Comparison of apples and oranges.