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Estate of Hunter1/14/1999
mentator has written that:
The problem with subsection (7) is that it uses the term "party." This is the first and only time that the term appears in the statute. Had the legislature employed one of the previously used terms such as "defendant" or "person," the answer may have been more clear. Strictly speaking, one could interpret "parties" to mean just what it says. That would limit the apportionment to just those defendants the plaintiff decided to bring into the action. However, by including absent tortfeasors within the meaning of "parties," a court may be better able to effectuate the comparative negligence function by considering all parties whose negligence contributed to the injury.
H. Wesley Williams, 1989 Tort "Reform" in Mississippi: Modification of Joint and Several Liability and the Adoption of Comparative Contribution, 13 Miss. C.L. Rev. 133, 155 (1992).
. This Court agrees with the aforementioned commentators that the policy considerations underlying the comparative fault doctrine would best be served by the jury's consideration of the negligence of all participants to a particular incident which gives rise to a lawsuit. A rule of law limiting a jury to a consideration of the fault of the parties at trial would permit a plaintiff to settle with a defendant primarily responsible for a given accident, file suit against a "deeper pockets" defendant who may bear little if any responsibility for the accident, and thereupon require the jury to allocate all of the responsibility for the plaintiff's injuries between the plaintiff and the non-settling defendant . It would be patently unfair in many cases to require a defendant to be "dragged into court" for the malfeasance of another and to thereupon forbid the defendant from establishing that fault should properly lie elsewhere. Such a procedure invites inequitable results which, in certain cases, could arguably rise to the level of a due process violation.
. The term "party" is a rather vague term. If the Legislature had intended to refer to "parties to a lawsuit" then it could have easily used this language or a similar term such as "litigant", but it did not do so. It appears likely that the Legislature intended to refer generally to a "person or other entity" as the term is often used in a legal context. (e.g. "Whereas the party of the first part ...") By using the term "party" rather than "person" or other such term, the statute includes within its scope businesses, corporations, and other such legal entities.
. Moreover, § 85-5-7(7) provides that the trier of fact should allocate fault to each party "alleged to be at fault." There is no indication that the Legislature intended to reserve for plaintiffs the sole and exclusive right to make allegations of fault before a jury and to deprive defendants of the opportunity to persuade a jury that fault for a given accident lies elsewhere. This State's system of civil Justice is based upon the premise that all parties to a lawsuit should be given an opportunity to present their versions of a case to a jury, and the interpretation of § 85-5-7 urged by the plaintiffs would seriously infringe upon a defendant's rights in this regard in many cases.
. Moreover, a consideration of the basic effect of § 85-5-7 does not support the construction urged by the plaintiffs in the present case. The principal effect of § 85-5-7 is that it abolishes joint and several liability for up to 50 % of the plaintiff's injuries and replaces it with a several liability up to this amount. Thus, the statute serves to reduce the extent to which one defendant may be held liable for the negligence of another. It would be contrary to the basic purpose of the sta
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