Dilution of Liability and Multiple Tortfeasors in the Context of Liability for Unrequested Precautions

A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009). One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for test, the proximate cause test or the rule of intervening cause test), and a doctrine of remoteness of damage. Thus, in the typical accident example, if A, B, and C inflicted risk upon D, often times the tort system will filter out A and B and leave only C to carry the final burden. Ariel Porat's outline of the Expanded Duty of Restitution in his article, Private Production of Public Goods: Liability for Unrequested Benefits, provides an interesting and provocative solution to the dilution of liability puzzle.