NOTE: Richards v. Owens-Illinois, Inc.: The Pyrrhic Victory of Proposition 51 and the Death of Fault Immunity for Tobacco Skip over navigation
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Copyright (c) 1999 University of San Francisco School of Law
University of San Francisco Law Review

NOTE: Richards v. Owens-Illinois, Inc.: The Pyrrhic Victory of
Proposition 51 and the Death of Fault Immunity for Tobacco

Spring, 1999

33 U.S.F. L. Rev. 459


By Benjamin C. Graves *


In 280 B.C., King Pyrrhus repelled a Roman invasion of Asculum in ancient Greece. Though victorious, his army suffered losses six times those of the Romans. His reaction to the costly conquest was telling: "Another such victory over the Romans, and we are undone." 1

AMONG THE PROBLEMS that must be solved when distributing fault, two are salient: whose fault is to be considered, and which principles guide the analysis. In complex tort cases, wrongdoers are popularly referred to as the "universe of tortfeasors." 2 This term is inexact because it ignores that, in comparative fault jurisdictions, the plaintiff's fault affects the remedy 3 but does not make him a tortfeasor - one cannot commit a tort against one's self. If this seems meticulous, it is a symptom of grappling with the seemingly shapeless theories of fault, equitable indemnity and immunity, and it signals the difficulty of giving those theories form.

In California, the question of who is to be considered in the distribution of fault is answered in large part by California Civil Code sections 1431 to 1431.5, 4 popularly known as Proposition 51. Proposition 51 aims to protect defendants from paying more than their respective share by limiting defendants' liability for non-economic damages in proportion to their comparative fault. 5 The process of reaching an equitable apportionment is complex, partly because the principles of statutory immunity, comparative fault and vicarious liability control whose fault is considered. 6

Part I of this Note ...
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