Washington Law Review
Holding Tortfeasors Accountable: Apportionment of Enhanced Injuries under Washington's Comparative Fault Scheme
The enhanced-injury doctrine imposes a negligence-based duty to reasonably minimize the foreseeable risk of injury enhancement in the event of primary accidents, regardless of their cause. When apportioning responsibility for enhanced injuries under principles of comparative fault, a majority of courts outside of Washington use a plaintiffs fault in causing the primary accident to reduce recovery for enhanced injuries. A minority of courts, however, rule that because the enhanced-injury doctrine presupposes the occurrence of primary accidents, primary fault is legally irrelevant to apportionment of enhanced injuries. Washington courts have not addressed this issue. This Comment argues that Washington courts should not consider primary fault when apportioning responsibility for enhanced injuries. First, primary fault is not "fault" with respect to enhanced injuries and, therefore, should not reduce a plaintiff's recovery for enhanced injuries. Moreover, Washington's comparative fault scheme and law regarding proximate cause require that responsibility for enhanced injuries be apportioned using enhanced injury fault rather than primary fault. Finally, using primary fault to reduce an enhanced injury recovery will result in decreased product safety.
Ryan P. Harkins,
Notes and Comments,
Holding Tortfeasors Accountable: Apportionment of Enhanced Injuries under Washington's Comparative Fault Scheme,
76 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol76/iss4/6