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HAZARDS EQUITY: A PERSPECTIVE ON THE COMPENSATION SYSTEM 116 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. benign conduct in the environmental and public health areas is foreseeable. We should therefore modify the application of the principle of foreseeability in environmental and public health cases in particular. If foreseeability is removed as the underpinning of duty and limitation on liability in certain kinds of cases, we still can limit responsibility in more acceptable and realistic ways. Duty and liability can be and are limited in many ways as expressions of public policy without resort to lip service in the application of foreseeability as an underlying test. For example, duty often is limited by the relationship between parties. This would be a more objective explanation of why the mother, as a member of the victim's immediate family, could recover for her mental suffering after witnessing the death of her child at the hands of the drunk driver, but a stranger would be precluded from such a recovery. One could reasonably suggest that the close family relationship between the mother and child created a duty running from the driver to the mother, but that the lack of a relationship between a stranger and the child justified the absence of a duty from the driver to the stranger in terms of a claim for mental suffering. Responsibility can be limited in other ways; for example, the passage of time serves as a potential bar to a claim for the violation of a duty, and the expiration of a statute of limitations can bring an end to an otherwise viable claim. Lack of personal knowledge of certain facts and conformity to business and professional standards may also limit duty. The nature of the conduct in question often shapes duty. Conduct that is intentional in a given setting may create a duty, whereas conduct that is beyond one's control may not create a duty in the same setting. Therefore, one is a trespasser if he deliberately enters another's property, but not if he is shoved onto the property. The dollar amount of liability can also be controlled without having to push the meaning of foreseeability beyond logic and reality. This was done in the CERCLA statute with regard to natural resources damage (although there appears to be a need for judicial interpretation of circumstances to which the dollar limitation applies). It is done routinely in many other statutory schemes, such as wrongful death statutes. Dollar limitations enhance insurability, so that a responsible party is less apt to be judgment-proof. Mandatory Allocation of Damages Among Responsible Parties The principle of joint and several liability without contribution puts an unfair burden on liable parties whose financial responsibility for their conduct often exceeds their judicially determined pro rata responsibility.
