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HAZARDS EQUITY: A PERSPECTIVE ON THE COMPENSATION SYSTEM 114 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. The CERCLA Statute and Absolute Liability The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) presumably obviates the foreseeability concept in cases involving inactive hazardous waste sites (42 U.S.C. 9607). The CERCLA approach could become a milestone in abrogation of the foreseeability principle as the dominant factor in the creation of duties and limitations on liability in environmental and public health cases in both statutory and common-law settings. THE PRINCIPLE OF JOINT AND SEVERAL LIABILITY WITHOUT CONTRIBUTION Let us move on to a second cornerstone principle of the injury compensation system, which has been accepted as part of the common law in most jurisdictions. The principle is that the injury victim may sue and recover from one, any, or all of the liable parties. He may then satisfy a judgment in his favor from the liable parties without regard to the relative degrees of responsibility for the harm. These liable parties, in turn, may not seek to apportion the settlement among themselves on the basis of proportionate responsibility in the absence of an enabling statute in the jurisdiction in question. This is the principle of joint and several liability without contribution. Most states have, in fact, adopted "comparative fault" statutes for use in negligence and products liability claims. However, such statutes are far from uniform (Keeton and Prosser, 1984, sec. 50). And most states have retained the rule that the injured party may sue and satisfy a judgment against one, any, or all of the liable parties even when the state has adopted a contribution statute to aid a liable party that has paid more than its pro rata share to the injured party. The historical rationale for this principle has no relevance to the vast majority of present-day injury compensation cases. The rule of joint and several liability without contribution among liable parties arose in the context of concerted and willful acts among wrongdoers at English common law and long before the emergence of negligence and strict liability as bases for claims. English courts took the position that the willful conspirator was not entitled to the assistance of the court to obtain reimbursement from other conspirators for amounts he paid to the injured party in excess of his proportionate responsibility. The rule has persisted in this country despite the fact that liable parties may neither have acted willfully nor in concert with each other. In an interesting and important recent development, a number of federal judges have construed CERCLA to permit contribution among responsible
