The Law of Indivisible Injury

A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review  (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury."   The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns. 

As Raupp, explains, "the indivisible injury doctrine,  [which operates] as an exception to the causation component of damages,  rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one.  Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

Here is how Raupp outlines his note:

 

When the indivisible injury doctrine intersects with bar-to-recovery provisions, or if the case involves nonparties, the operation of the doctrine can lead to questionable results.  This Note describes the progression and consequences of this doctrine in four parts.  Part I provides necessary background and traces the development of the indivisible injury doctrine.  Part II defines in detail the jury procedure followed in indivisible injury cases, and it then discusses two significant paradoxes created by the use of this jury procedure.  Part III advocates taking a narrower view of the indivisible injury doctrine to limit the instances in which its application is problematic.  Jurisdictions should adopt more stringent requirements for using the indivisible injury doctrine, and they should also give judges, as well as juries, the opportunity to decide cases on other grounds before resorting to indivisible injury.  Part IV concludes.
 
The Reporters (Mike Green and Bill Powers) of the Restatement (Third) countered with an article titled "Conceptual Clarity and Necessary Muddles."  Here is a summary of their article:
 
[The article] describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that "Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering.  Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved."
 
If you are reaching this topic, there is no better place to begin your research.
 
Thanks to Torts Prof for alerting me to this note and article.