Back in 2008, Professor Michael Green wrote an interesting paper on apportionment in asbestos litigation. The paper sets out an argument that apportionment is a 20th century reform of American tort law, from the common law’s “all or nothing” approach.[1] I respectfully disagree with Professor Green’s assessment. When we consider the procedural aversion to joinder of claims, and the limited range of “joint and several” liability at common law, there was often a much greater role for apportionment in the common law of tort.[2]

Although there have been statutory reforms in some states, which have facilitated apportionments of fault and causation, tort law in the 20th century saw a steady march away from causal apportionments. This process of transformation raises interesting historical and theoretical questions. The hostility to apportionment was reflected in several doctrinal shifts. First, the burden of proof shifted from the plaintiff, who originally had to show each defendant’s share, to the defendants, who had to show their individual shares in order to avoid joint and several liability. Second, the common law’s procedural hurdles of joinder were removed, which left courts free to indulge presumptions of joint and several liability simply because the plaintiff’s harm was one unified harm, whether divisible or not. Third, the common law’s requirement of a “reasonable basis” for an estimate of apportioned share mutated into a requirement of “reasonable certainty,” with no particular clarity for how apodictic the certainty had to be to escape joint and several liability. Fourth, injuries readily seen as divisible in practical ways became “indivisible” in the result-oriented jurisprudence of the later 20th century. And fifth, judicial concern over the unfairness of imposing catastrophic damages upon a single defendant (with other potential defendants unavailable due to bankruptcy, immunity, or plaintiff’s preference) gave way to concer over plaintiffs’ not recovering fulsome damages.

Defendants in the asbestos litigation played a role in this march toward joint and several recovery, with simplistic pro rata shares when contribution was available. The economics of cases with multiple defendants led to multiple representations. Apportionment raised the prospect of invidious distinctions between and among defendants, with some defendants having minuscule causal shares, with others having large shares. Such distinctions posed serious conflicts of interest, which were, and still are, virtually impossible to manage. In the context of mesothelioma cases, for instance, many defendants prefer pro rata contribution rather than causal apportionment because the former guarantees greater offsets in cases taken to verdict. Given the huge variability in asbestos fiber type potency for causing mesothelioma, defendants that had products with some amphibole asbestos had to worry that defendants with chrysotile-only products would avoid liability altogether, or have liability for fractional shares of a single percentage point.

Of course, plaintiffs have resisted apportionments of all kinds, whether between and among joint tortfeasors, or between their conduct and the tortfeasors’, at every turn. Historically, the doctrine of joint and several liability der ives from principles of mutual agency and imputed liability. We can see examples of such liability resulting from civ il conspiracies, torts of partnerships, and true concert of action among tortfeasors.[3]

Entire liability , on the other hand , results from liberal procedural rules of joinder and an ind iv isible injury. If concurrent or successive torts cause a single harm, and the trier of fact cannot reasonably determine what proportion each tortfeasor contributed , then each tortfeasor is liable for the whole harm , even though each tortfeasor’s act alone might have been insuffi cient to cause the entire harm.[4] Although situations giving rise to entire liability may be totally lacking any basis for mutual agency or imputed liability, these situations may lead to a joint and several judgments against multiple tortfeasors. Entire liability, and its procedural consequences that resemble historical joint and several liability, do not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Restatement Approach

The American Law Institute’s Restatement (Second) of Torts [Restatement] restated the rules for guiding the applicability for apportionment in a section entitled “Apportionment of Harm to Causes”

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement § 433A. Comment b to Section 433A circuitously and vacuously defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment provides a hypothetical case and suggested resolution, which are, however, are more helpful:

“If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.”

The above hypothetical was very much analogous to the school district asbestos property damage class action, in which some plaintiffs’ counsel sought to hold all defendants jointly and severally liable. Although all the defendants may have contributed to the overall condition of a particular building, the cost of removing or containing each asbestos product can be attributed to the producer of that product. Each defendant’s product may be in a different part of a building, and represent a different percentage of the total amount of friable asbestos in the building. Some asbestos products might not be friable at all, and removal would be unnecessary, counterproductive, and even harmful. Each product posed unique problems for removal or containment, the cost of which could be determined independently of the costs for dealing with the other products in the building.

The case of single but divisible harm is relatively straightforward under the Restatement’s apportionment approach. Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.”[5]

The Restatement (Second) gave several examples of joint torts that can be apportioned by cause. Instructive for the asbestos property damage and similar environmental cases, the Restatement’s following suggestion was of particular interest:

“Apportionment is commonly made in cases of private nuisance, where the pollution of a stream, or flooding, or smoke or dust or noise, from different sources, has interfered with the plaintiff’s use or enjoyment of his land. Thus where two or more factories independently pollute a stream, the plaintiff’s use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of the respective quantities of pollution discharged into the stream.”[6]

Although any actual apportionment, upon which reasonable people can disagree, must be made by the trier of fact, whether the plaintiff’s harm is apportionable is a question for the court.[7]

Judicial Applications of Apportionment Principles

Some of the earliest cases apportioning property damages involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases focused on the propriety of the joinder of the dog owners and the resulting joint liability. Under the common law approach to joinder, courts found it “repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in doing mischief could make the owners jointly liable.”[8] Consequently, if two dogs, each belonging to different persons, run together and kill the plaintiff’s sheep, each owner is liable only for the sheep his dog killed.[9] The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage.[10] In Adams v. Hall,[11] the court specifically rejected the plaintiff’s argument that the damage done to his property, his herd of sheep, was “entire.” Because the damage done by each defendant’s dog was separate, and the defendants were misjoined under the procedural rules then in effect.[12]

Several of the common law courts addressed the appropriateness of apportionment, either pro rata, or otherwise. In an 1838 case, Buddington v. Shearer,[13] the court acknowledged that the plaintiff would have some difficulty in proving which dog caused what distinct harm, but that under the circumstances, the trier of fact could reasonably apportion damages equally on the assumption that the dogs were capable of equal mischief.

In the absence of a statute, the rule requiring apportionment in dog & sheep cases remains valid.[14] In one 1920 case, the appellate court, anticipating the scientific basis for different pathogenic potencies for different varieties of asbestos, noted that the relative size and ferocity of each owner’s dog was a sufficient basis to permit the jury to apportion damages.[15]

The vitality and continuing validity of the apportionments made for separate harms (in dog and sheep cases) is clearly reflected in the Restatement (Second) and its illustrations:

“Five dogs owned by A and B enter C’s farm and kill ten of C’s sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity.”[16]

Based upon these facts, the second Restatement would hold A liable for the value of six of the sheep, and B liable for four.[17] 

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In an early Kansas case, the plaintiff sued for the damage inflicted to his crops by cattle belonging to two unrelated parties. Noting that the plaintiff had suffered a single injury to his property, the court held that the damages for the single injury should be apportioned by the relative number of each defendant’s cattle.[18] Reasoning in a similar manner, the New York Court of Appeals, in 1907, addressed a case brought by a farmer who sued two defendants, each owner of cattle, which had trespassed upon his land.[19] The court noted that the cattle were all on the plaintiff’s land and that they all caused equal damage to the plaintiff, and, therefore, each cattle owner was liable for his proportionate share of the entire damages.[20] Other courts, in considering animal trespass cases, have not emphasized whether they viewed the plaintiff’s injury as single or several; rather, these courts, simply stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly.[21]

Cases involving the flooding of land have provided fertile soil for judicial consideration of apportionment. The 1952 California case of Griffith v. Kerrigan is typical.[22] In Griffith, the plaintiff sued for damage to his peach orchard, caused by excessive underground water seepage from one defendant’s irrigation of an adjacent rice paddy, and from another defendant’s nearby canal.  The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Plaintiff appealed, and claimed that each defendant was the proximate cause of the entire harm, and therefore, he was entitled to a judgment for the entire amount of damages proved at trial.[23]

Relying upon first Restatement of Torts, Section 881, the predecessor to section 433A of the Second Restatement, the Griffith court rejected the plaintiff’s contention that damage and liability were “entire.” The estimates of relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages.[24]

The defendants in Griffith cross-appealed, arguing that the expert witness testimony given at trial established that no exact apportionment was possible. Because of this lack of precision, the defendants contended that the plaintiff had failed to carry the burden of proving each defendant’s causal role. The California appellate count expressly rejected this contention. The expert witness’s estimate was a sufficient basis for the apportionment.[25]

The holdings in Griffith are based upon well-established precedents and intuitive principles of justice. In language that resonates for many mass-tort situations, such as multi-defendant asbestos litigation, joint and several liability in such a case would allow “a plaintiff to overwhelm a defendant with claims for damages out of all proportion to his wrongdoing… .”[26]

In an 1879 case, Sellick v. Hall, the court held that parties that independently damaged plaintiff’s property by flooding could not be found to be joint tortfeasors.[27] Each party can be liable only for that portion of the harm, which he caused. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to which he is not legally liable, simply  because the exact ascertainment of the proper amount is a matter of practical difficulty.”[28] Any hardship to the plaintiff in not being able to assert joint and several liability is mitigated by being relieved of the requirement to prove the precise damage inflicted by each defendant.[29] The common law’s foundational principle is clear: a reasonable basis for apportioning a single harm among multiple causes is sufficient to support an apportionment of damages, without fussing over “exactitude.”[30]

Air and Water Pollution Cases

When two or more independent tortfeasors separately pollute the air or water and the consequences combine to form a single injury, each tortfeasor will be liable only for the consequences of his independent tortious act and will not be liable for the entire injury. In Oakwood Homeowners Assoc. v. Maration Oil Co., the appellate court sustained the trial court’s jury instruction that the jury should separate the injuries caused to the plaintiff by the defendant from the injuries caused by other tortfeasors if they could do so:

“If two or more persons acting independently tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused.”[31]

In Sam Finley, Inc. v. Waddell, the Virginia Supreme Court of Appeals held that the trial court had failed to require the plaintiff , who had prevailed at trial, to produce evidence apportioning the damage between the two defendants.[32] In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants.

In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants, absent proof of privity or concert of action:

“[W]here there are several concurrent negligent causes, the effects of which are separable, due to independent authors, neither being sufficient to produce the entire loss, then each of the several parties concerned is liable only for the injuries due to his negligence.”[33]

In Maas v. Perkins, the Supreme Court of Washington held that, while two alleged tortfeasors, accused of having contributed to the damage caused by oil sludge draining onto plaintiffs’ property, could be joined in one action, their liability was several and not joint.[34] Plaintiffs would not be relieved of their burden of showing that a particular defendant caused damage of a specified amount. Although the court admitted of the difficulty of such proof, the court required some basis for the allocation of the total damage.[35] Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness, and have thus been unwilling to impose liability on one tortfeasor for the acts of another over which the first had no control and where the only logical connection was some similarity of consequences.

In Farley v. Crystal Coal & Coke Co.,[36] the West Virginia Supreme Court held that six separate mine operators, alleged to have polluted with slag, cinder and sewage the stream on which plaintiff’s farm was situated, could not be jointly liable for damage caused by the pollution:

“In the actual infliction of the injury, there was nothing more than a combination, effected by natural causes of the consequences or results or the wrongful acts, in which the parties did not act. This of course does not absolve them from liability, but it does away with the ground or basis of joint liability and liability for entire damages. Each is liable only for the consequences of his own wrong and must be sued alone for the damages.”[37]

In City of Mansfield v. Brister, the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run.[38] Ritter’s Run was found to have been fouled by five sewers, only one of which had been constructed by the city. The trial court instructed that jury that it was unnecessary to find that the city had caused the entire injury in order to find it liable for the damage. The Ohio Supreme Court reversed, in a thoughtful and lengthy opinion, in which it considered and discussed the then contemporary authority. The court found the difficulty of apportionment presented no compelling reason to relieve the plaintiff from the obligation of proving that the damages sought from a defendant sprung from the act of that defendant:

“Each is liable only to the extent of the wrong committed by him. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tort-feasor should be liable for act of others with whom he is not acting in concert.”[39]

As noted above, the Restatement (Second) of Torts contains a discussion of apportionment consistent with this discussion. One illustration contained in the comments is drawn from the pollution cases and well illustrates the point:

“Oil is negligently discharged from two factories, owned by A and B, onto the surface of a stream. As a result C, a lower riparian owner, is deprived of the use of the water for his own industrial purposes. There is evidence that 70 per cent of the oil has come from A’s factory, and 30 per cent from B’s. On the basis of this evidence, A may be held liable for 70 per cent of C’s damages, and B liable for 30 per cent.”[40]

Shifting the Burden of Proof

Some jurisdictions have shifted the burden of going forward on the issue of apportionment. In a 1952 case, Landers v. East Texas Salt water Disposal Co.,[41] the independent operators of two separate pipelines were alleged to have discharged large quantities of salt water into plaintiff’s lake when the two pipelines broke on or about the same day. The court held that plaintiff could recover despite his inability to allocate specific damage to one or the other tortfeasor:

“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages.”[42]

The actual language of Landers is somewhat difficult to reconcile with the manner in which the Landers rule has been applied. Landers was decided in an era without liberal rules of joinder, and so the court apparently conceived it necessary to deem the defendants joint tortfeasors in order to join the defendants in a single action.

In what seems rather result-oriented jurisprudence, courts which have had occasion to apply Landers under the modern rules of joinder have largely cited the Landers rule as shifting the burden of going forward on the question of apportionment. And then, to add insult to injury to the common law, courts after Landers have conflated the burden of going forward with the burden of proof:

“Where several defendants are shown to have each caused some harm, the burden of proof (or burden of going forward) shifts to each defendant to show what portion of the harm he caused. If the defendants are unable to show any reasonable basis for division, they are jointly and severally liable for the total damages.”[43]

This trend toward shifting the burden of proof of apportionment can be seen in an air pollution case,[44] Michie v. Great Lakes Steel, where the court considered whether a plaintiff, alleging damages of $11,000 caused by the air pollution of three corporate defendants, would be deemed to have alleged damages of $11,000 against each for purposes of determining whether the jurisdictional amount in controversy for diversity jurisdiction had been met. Citing Landers, the court stated the rule of apportionment as follows:

“Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors.

* * * *

The net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers.”[45]

Some courts, following Landers, have found reasonable bases for apportioning entire damages.[46] The judicial embrace of joint and several liability, with burden shifting, and increasing the burden, for apportionment has led to great creativity in avoiding apportionments. For pollution cases, what might be a rough-and-ready practical basis for apportionment, courts have found confounding factors of unknown rates of discharge, for unknown times, with unknown composition, and in unknown concentrations. There can be a huge gap between the sorts of “reasonable estimates” that were found adequate at common law and the “reasonable certainties” that courts increasingly demanded.

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[1] Michael D. Green, “Second Thoughts about Apportionment in Asbestos Litigation,” 37 Southwestern Univ. L. Rev. 531 (2008) (“The idea that liability is not all or nothing—a basic tenet of the common law—but could be apportioned in a fine-grained manner—that is using a scale of 100, whether you call it comparative negligence, fault, responsibility, or causation—is a reform of the twentieth century and one of the most influential in tort law of that century.”).

[2] “Common Law Causal Apportionment – Each Dog Had His Day” (Sept. 27, 2014).

[3] See William Lloyd Keeton, ed.,  Prosser and Keeton on the Law of Torts § 46 (1984).

[4] Stuart Speiser, Charles Krause and Alfred Gans, The American Law of Torts § 3.7, at 394 (1983 & Supp. 1984); Prosser, supra, at § 47, at 328.

[5] Restatement § 433A(1)(b), at comment d.

[6] Id.; see also S. Speiser, supra at § 3.12 & note 88 (collecting cases on joint flooding and polluting).

[7] Restatement § 434(1)(2).

[8] Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817).

[9] Id. (“[N]o man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it.”); Van Steinburgh v. Tobias, 17 Wend. 562 (N.Y. 1837) (affirming nonsuit based upon misjoinder because joinder was error unless defendants jointly liable). The court in van Steenburgh noted that the imposition of joint liability on the owner of one dog, which happened to unite with other dogs in destroying a herd, would be unjust. Id. at 564.

[10] Van Steinburgh v. Tobias, 17 Wend. 562, 563 (N.Y. 1837).

[11] Adams v. Hall, 2 Vt. 9 (1829),

[12] Id. at 10, 11.

[13] 37 Mass. (20 Pick.) 477, 479-80 (1838).

[14] See Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages); Stine v. McShane, 55 N.D. 745, 746, 214 N.W. 906 (1927) (in absence of a joint tort or a statute modifying the common law, plaintiff can recover only those damages occasioned by that defendant’s conduct); Nohre v. Wright, 98 Minn. 477, 478-79, 108 N.W. 865 (1906) (each dog owner is liable separately for the damages done by his animal); Anderson v. Halverson, 126 Iowa 125, 127, 101 N.W. 781 (1904) (reversing judgment for defendant dog owner because although plaintiff could not show which sheep the defendant’s dog killed, the jury should have been allowed to consider defendant’s liability with proper instructions on apportionment); Denny v. Correll, 9 Ind. 72, 73 (1857) (per curiam) (reversing joint judgment against defendant dog owners); Dyer v. Hutchins, 87 Tenn. 198, 199, 10 S.W. 194 (1889)(each defendant dog owner is responsible only for the depradations of his own animal).

[15] Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages).

[16] Restatement (Second) of Torts § 433A, illustration 3.

[17] Id.

[18] Powers v. Kindt, 13 Kan. 74, 83 (1874).

[19] Wood v. Snider, 187 N.Y. 28, 36, 79 N.E. 858 (1907).

[20] Id. Accord Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079 (1904)(the proper measure of plaintiff’s damages was the value of pasturage consumed by defendant’s sheep, not the mischief done by animals belonging to other persons); Hill v. Chappel Brothers of Montana, 93 Mont. 92, 103, 18 P. 2d 1106, (1933) (jury allowed to make the best possible estimate of the portion of damages attributable to the defendant’s horses).

[21] See, e.g., Westgate v. Carr, 43 Ill. 450, 454-44 (1867) (each defendant cattle owner is liable only for the damage done by his cattle); State v. Wood, 59 N.J.L. 112, 113-14, 35 A. 654(1896)(each dog’s trampling of the plaintiff’s cabbage patch is a separate harm; each owner is liable only for the harm his dog caused; King v. Ruth, 136 Miss. 377, 381, 101 So. 500 (1924) (each dog owner is liable only for the damages done by his animals “separate and distinct” trespass); see also Cogswell v. Murphy, 46 Iowa 44 (1877) (reversing judgment against defendant cattle owners because of misjoinder of parties).

[22] Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296, Cal. Rptr. (1952).

[23] Id. at 638.

[24] Id. at 639.

[25] Id. at 640.

[26] William Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 377-78, 132 N.W. 945 (1911) (extensively reviewing authorities and rejecting joint and several liability for property damage caused by flooding from multiple causes). See also Boulger v. Northern Pacific RR, 41 N.D. 316, 324, 171 N.W. 632 (1918) (imposing entire liability on a party responsible for only a portion of the harm caused by a flood would be contrary to law and justice).

[27] Sellick v. Hall, 47 Conn. 260, 273 (1879).

[28] Id. at 274.

[29] See William  Tackaberry Co., supra,154 Iowa at 377; Griffith v. Kerrigan, 109 Cal. App. 2d at 640.

[30] Sloggy v.  Dilworth, 38 Minn. 179, 185, 36 N.W. 451 (1888) (rejecting entire liability; apportionment for damage to plaintiff’s crops caused by  flooding from multiple causes may be based on the relative contribution of each party); Blaisdell v. Stephens, 14 Nev. 17, 19 (1879) (reversing      joint judgment in a flooding case); Verheyen v. Dewey, 27 Idaho 1, 11-12, 146 P. 1116 (1915) (reversing joint judgment; holding each party responsible only for that portion of the flood, which damages plaintiff’s property); Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059, 1061 (1925) (rejecting joint liability for independent flooders of plaintiff’s land); Miller v. Highland Ditch Co., 87 Cal. 430, 431, 23 P. 550 (1891) (reversing joint judgment against defendants, whose irrigation ditches independently overflowed and deluged plaintiff’s land).

[31] Oakwood Homeowners Ass’n v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567, 569 (1981),    

[32] Sam Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E. 347 (1966).

[33] Sam Finley, Inc., 151 S.E.2d at 352. The decision in Sam Finley, Inc. was a reaffirmation of the rule of Panther Coal Co. v. Looney, 185 Va. 758, 48 S.E.2d 298 (1946), and Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co., 110 Va. 444, 66 S.E. 73 (1909). These cases exemplify the line of cases which developed and applied the rule of apportionment and several liability in cases involving air and water pollution from the latter part of the last century to the 1960s, when statutory remedies for air and water pollution were enacted. These common law decisions are still binding authority in most jurisdictions and are binding on federal courts sitting in diversity.

[34] Maas v. Perkins, 42 Wash. 2d 38, 253 P.2d 427 (1953).

[35] 253 P.2d at 430. The court in Maas followed the rule previously set forth in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941). In this action, a downstream farmer alleged that a municipality and a slaughterhouse discharged refuse into the Little Klickitat River. The court affirmed the rule that tortfeasors independently contributing to the pollution of a stream cannot be held jointly liable for the common injury. The basis of the Court’s decision was fairness. “[I]t might work great injustice to hold one responsible for the entire injurious effect of the pollution of a stream brought about by himself and others in varying degrees.” Snavely, 117 P.2d at 224.

[36] Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).

[37] Farley, 102 S.E. at 268. Similarly, the court in Watson v. Pyramid Oil Co., 198 Ky. 135, 248 S.W. 227 (1923), was moved by considerations of fairness to adopt the rule of apportionment and several liability. It held that several refining companies could not be liable for the damage caused by each other’s operations. Otherwise, it reasoned “a defendant who had contributed to the injury in the slightest degree would be liable for all the damage caused by the wrongful acts of all the others.” 248 S.W. at 228. Similarly, the Florida Supreme Court has held that joint liability would not be imposed on upriver phosphate producers despite the intermingling of the consequences of their tortious acts as regards downriver riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (1913), and Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (1913). Noise pollution has been handled in a similar fashion. See, e.g., City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951) (holding that a city operating an airport and the airlines using it were not jointly liable for damage caused to the plaintiff by a low flying aircraft).

[38] City of Mansfield v. Brister, 76 Ohio St. 270, 81 N.E. 631 (1907).

[39] City of Mansfield, 81 N.E. at 633.

[40] Restatement (Second) of Torts § 433A, comment d, illustration 5 (1965).

[41] Landers v. East Texas Salt water Disposal Co., 151 Tx. 251, 248 S.W.2d 731 (1952).

[42] Landers, 248 S.W.2d at 734.

[43] Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir. 1973), cert. denied, 419 U.S. 869, (1974). The federal bench has, at times, been mindful of the unfairness of joint and several liability to defendants. Although largely ineffectual, some courts have opined that some method was needed to achieve “[an] apportionment which bears some relationship to causative fault.”

[44] Michie v. Great Lakes Steel, 495 F.2d 213 (6th Cir. 1974), cert. denied 419 U.S. 997 (1979).

[45] Michie, 495 F.2d at 217, 218.

[46] See, e.g. Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980) (upholding apportionment of damages, made with “reasonable certainty” between defendant police officers who had been found to have committed an unlawful arrest and imprisonment).