CARTER, J.

Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated.

Plaintiff’s action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was. tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7% size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to “keep in line.” In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff’s direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83 the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.

First, on the subject of negligence, defendant Simon-son contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A. N.S.134].)

Defendant Tice states in his opening brief, “we have decided not to argue the insufficiency of negligence on the part of defendant Tice.” It is true he states in his answer to plaintiff’s petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.

Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all “stay in line,” presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff’s position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826] ; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point.

The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries—the shooting by Tice or that by Simonson. Tice argues that there is *84 evidence to show that the shot which struck plaintiff came from Simonson’s gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff’s allegation in his complaint that he did not know which one was at fault—did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.

Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and “That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff’s right eye and that another birdshot pellet was caused to and did lodge in plaintiff’s upper lip.” In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury—or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff’s eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.

It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the- injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to d third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground *85 if decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: “ We think that . . . each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.” [Emphasis added.] (P. 668 [110 So.'].) It is said in the Restatement: “For harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” (Rest., Torts, § 876(b) (c).) Under subsection (b) the example is given: “A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C.” (Rest., Torts, § 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: “If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.” (Rest., Torts, § 432.) Dean Wigmore has this to say: “When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person’s two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm, (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how *86 much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ...” (Wigmore, Select Cases on the Law of Torts, § 153.) Similarly Professor Carpenter has said: “ [Suppose] the case where A and B independently shoot at C and but one bullet touches C’s body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff . . . where the injury occurs as ttít result of one where more than one independent force »' operating, and it is impossible to determine that the force se| in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause.” (20 Cal.L.Rev. 406.)

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers—both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence' to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to *87 defendants to explain the cause of the injury. It was there said: “If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.’ ” (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury.

The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez ease and there were not several negligent defendants, one of whom must have caused the injury.

Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10-Yr. Supp. Automobiles, § 349; 19 Cal.Jur. 570-572.)

Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; *88 City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the last-cited cases are distinguishable inasmuch as they involve independent tort feasors.

In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can—relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)

It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the ease under either theory. We have seen that for the reasons of policy discussed herein^ the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Appellant Tice’s petition for a rehearing was denied December 16, 1948.

HERRMANN, Justice:

This appeal involves an automobile accident in which the plaintiffs claim that the defendant motorists were racing on the public highway, as the result of which the accident occurred.

The plaintiffs Cecil B. Rogers and Susan D. Rogers brought this action against Robert C. Race and Ronald Bierczynski, ages 18 and 17 respectively, alleging concurrent negligences in that they violated various speed statutes and various other statutory rules of the road, and in that they failed to keep a proper lookout and failed to keep their vehicles under proper control. The jury, by answer to interrogatories in its special verdict, expressly found that Race and Bierczynski were each negligent and that the negligence of each was a proximate cause of the accident. Substantial verdicts were entered in favor of the plaintiffs against both defendants jointly. The defendant Bierczynski appeals therefrom. The defendant Race does not appeal; rather, he joins with the plaintiffs in upholding the judgment below.

The plaintiffs move to dismiss the appeal on the ground that the notice of appeal specified the denial of various motions for judgment made by Bierczynski during trial, as well as the final judgments entered below in favor of the plaintiffs. There is no merit in plaintiffs’ contention that the notice of appeal is thereby made too vague and confusing. Obviously, the appeal is taken from the final judgments, the various subordinate rulings during trial being mentioned in the notice in an overabundance of caution. Nor is there any merit in the contention that the notice of appeal was filed too late. The judgments upon the verdicts were entered below on February 6, 1967. The notice of appeal was filed with the Clerk on April 7, 1967. It was too close — dangerously so and, in the absence of extraordinary circumstances, we deplore such last-minute appeals — but it was not too late. Adopting and applying the rule of time-computation prevailing in the courts of this State (Superior Court Civil Rule 6, Del.C.Ann., Chancery Court Rule 6, Del.C.Ann., Superior Court Criminal Rule 45, Del.C.Ann.), whereby the day of the event is not included but the last day of the period is included, the notice was filed within the 60 day appeal period prescribed by Rule 23 of this Court, Del.C.Ann. The motion to dismiss the appeal is denied.

Bierczynski puts his appeal upon three grounds: (1) that it was error for the Trial Court to submit the issue of proximate cause to the jury, insofar as he was concerned, because the plaintiffs failed to prove that any negligence of Bierczynski was a proximate cause of the accident; * *220 (2) that it was error for the Trial Court to permit the plaintiffs’ attorney to argue to the jury that Race and Bierczynski were racing; and (3) that it was error for the Trial Court to refuse to admit evidence that Rogers had not had Bierczynski arrested and charged with motor vehicle violations, following the accident, although he did take such action as to Race. We think that the decision of the Trial Court, as to each matter complained of, was correct.

There was sufficient evidence of proximate causation as to Bierczynski, in our opinion, to warrant the submission of that issue to the jury. The Trial Court had before it the following evidence:

Bierczynski and Race worked at the same place, located a short distance east of Governor Printz Boulevard near Lore Avenue. They lived near each other in the southerly part of Wilmington. On the day before the accident, Bierczynski drove Race to work. On the day of the accident, Bierczynski intended to pick Race up again; but, upon meeting, Race told Bierczynski he would take his own automobile too, because he intended to leave work early. Thereupon, one following the other, they drove toward their place of employment northerly across Wilmington to Lore Avenue in a suburban area of Brandywine Hundred. The accident occurred on Lore Avenue about 300 feet east of its intersection with River Road. Lore Avenue runs east and west and River Road north and south. Lore Avenue was 18 feet wide, macadam surfaces, without a marked center line, and was lined by guard rails at various places. For a distance of about 1,000 feet west of its intersection with River Road, Lore Avenue is a moderately steep hill; after crossing River Road, it levels off. The speed limit at the scene was 25 m. p. h.

Cecil Rogers testified as follows: He was returning from a Girl Scout trip with his daughter, headed for their home located about three blocks from the-scene of the accident. He entered Lore Avenue from Governor Printz Boulevard, thus driving in a westerly direction on Lore Avenue. At a point about 300 feet east of River Road, • Rogers’ car was struck • by Race’s car which approached him sideways, moving in an easterly direction on the westbound lane. Rogers saw Race’s car coming at him; he stopped in the westbound lane; but he was unable to move out of the way because there was a guard rail along that part of the road and no shoulder. Rogers first saw the Race vehicle when it was about 550 feet up Lore Avenue — or about 250 feet west of River Road. At that point, the Race car was being driven easterly on Lore Avenue in the westbound lane, almost along-side the Bierczynski car which was moving easterly in the eastbound lane. The front bumper of - the Race car was opposite the back bumper of the Bierczynski car. Both cars were moving at about 55 or 60 m. p. h. down the hill. Before reaching River Road, Race swerved back into the eastbound lane behind Bier-czynski, who was about a car length in front. As it crossed River Road, the Race automobile “bottomed on the road”; and it “careened down against the pavement and gave an impression of an explosion”; dust “flew everywhere” sufficiently to obscure the Race car momentarily from Rogers’ view. At that point, the Race and Bier-czynski automobiles were only “inches apart”. The Race car then emerged from behind the Bierczynski car and careened sideways, at about 70 m. p. h., a distance of about 300 feet to the Rogers car standing in the westbound lane. The left side of the Race car struck the front of the Rogers car. Meanwhile, the Bierczynski car was brought to a stop in the eastbound lane, about 35 feet from the area of impact. The Bierczynski car did not come into contact with the Rogers vehicle.

/facts that his automobile remained in the proper lane at all times and was stopped about 35 feet before reaching the area of impact, without coming into contact with Bierczynski’s contention as to lack of proximate cause is based mainly upon the *221 the Rogers car. These facts notwithstanding, the foregoing testimony of the plaintiff constituted sufficient evidence of proximate cause, in our opinion, to warrant the submission of that issue to the jury as to both drivers.

A reasonable inference capable of being drawn from the above testimony of Rogers, in the light of the surrounding circumstances, is that Race and Bierczynski were engaged in a speed contest as they came down the hill of Lore Avenue approaching its intersection with River Road. It is unimportant whether it was technically a “race”, in the terminology of the defendants who deny that they were “racing”. Clearly, the inference of a deliberate and intentional speed competition, as they came down the hill practically side-by-side at twice the legal speed, was permissible from Rogers’ testimony; clearly, the inference that Bierczynski maintained his greatly excessive speed deliberately to prevent Race from passing him, was also permissible from Rogers’ testimony. We classify both of these courses of conduct as improper racing on the highway. In either of the latter situations, the issue of whether Bierczynski’s conduct was a proximate cause of Race’s loss of control and collision with Rogers, was a proper issue for the jury.

In many States, automobile racing on a public highway is prohibited by statute, the violation of which is negligence per se. E. g., State v. Dionne, 24 Conn. Sup. 59, 186 A.2d 561 (1962); State v. O’Connor, 76 N.J.Super. 246, 184 A.2d 83 (1962); Boykin v. Bennett, 253 N.C. 725, 118 S.E.2d 12 (1961); Giemza v. Allied American Mut. Fire Ins. Co., 10 Wisc.2d 555, 103 N.W.2d 538 (1960); Agovino v. Kunze, 181 Cal.App.2d 591, 5 Cal.Rptr. 534 (1960). Delaware has no such statute. Nevertheless, speed competition in automobiles on the public highway is negligence in this State, for the reason that a reasonably prudent person would not engage in such conduct. This conclusion is in accord with the general rule, prevailing in other jurisdictions which lack statutes on the subject, that racing motor vehicles on a public highway is negligence. 1 Cyclopedia of Automobile Law and Practice (Perm.Ed.) § 761; C.J.S. “Motor Vehicles” § 297; Annotation, 13 A.L.R.(3rd) 431, et seq.; Nelson v. Nason, 343 Mass. 220, 177 N.E.2d 887 (1961); Skipper v. Hartley, 242 S.C. 221, 130 S.E.2d 486, 13 A.L.R.3d 426 (1963).

It is also generally held that all who engage in a race on the highway do so at their peril, and are liable for injury or damage sustained by a third person as a result thereof, regardless of which of the racing cars directly inflicted the injury or damage. The authorities reflect generally accepted rules of causation that all parties engaged in a motor vehicle race on the highway are wrongdoers acting in concert, and that each participant is liable for harm to a third person arising from the tortious conduct of the other, because he has induced and encouraged the tort. See Restatement of the Law of Torts, § 876; Jones v. Northwestern Auto Supply Co., 93 Mont. 224, 18 P.2d 305 (1932); Andreassen v. Esposito, 90 N.J.Super. 170, 216 A.2d 607 (1965); Haddock v. Stewart, 232 Md. 139, 192 A.2d 105 (1963); Carney v. DeWees, 136 Conn. 256, 70 A.2d 142 (1949); Saisa v. Lilja (1 Cir.) 76 F.2d 380 (1935).

We subscribe to those rules; and hold that, as a general rule, participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each participant for any injury to a non-participant resulting from the race. If, therefore, Race and Bierczynski were engaged in a speed competition, each was liable for the damages and injuries to the plaintiffs herein, even though Bier-czynski was not directly involved in the collision itself. Bierczynski apparently concedes liability if a race had, in fact, been in progress. Clearly there was ample evidence to carry to the jury the issue of a race — and with it, implicit therein, the issue of proximate cause as to Bierczynski.

*222 The foregoing disposes of the appellant’s contention that there was no evidence upon which it was proper for plaintiffs’ counsel to argue to the jury that the defendants were racing.

Finally, we see no merit in the appellant’s contention that the Trial Court should have permitted a showing that Rogers brought criminal charges against Race but not against Bierczynski after the accident. The appellant was unable to cite any authority to support his position. We are not surprised.

We find no error as asserted by the appellant. The judgments below are affirmed.

*427Smith, J.

Once again1 we consider the problem of damages when the car in which plaintiffs are riding is struck first by one automobile and then,, almost simultaneously, by another.

The plaintiffs are Fred Maddux, his wife, and infant daughter. They were driving in an easterly direction on US-112, near Clinton, Michigan, in a Ford pickup. It had been raining and the pavement was wet. Paul Bryie was following them, both cars traveling at speeds between 35 and 40 miles per hour.. As the cars approached a bend in the road, Mr. Maddux observed a car some 1,500 feet away, skidding towards him, sideways, “in a swinging motion, in an arc” at a high rate of speed. He tried to get beyond a certain point on the highway before the skidding car reached it but was unsuccessful. The 2 cars collided, with extensive damage to both.

While plaintiffs’ car was stopped, with its occupants injured, it was struck again almost immediately, this time by the car following. Again the impact was substantial; Mr. Bryie considered his car to be a total loss.

The cases against the skidding driver, William Donaldson, were discontinued by plaintiffs. The court subsequently dismissed the cases of Mrs. Maddux and her daughter against Mr. Bryie, the driver of the following car, on the ground that “there is no evidence of damage before this jury from which any inference can be drawn in relation to the responsibility of Paul Bryie.” Mr. Maddux’s case was dismissed on the ground that he was guilty of contributory negligence as a matter of law. We will first examine this aspect of the case.

At the time Mr. Maddux observed the car skidding sideways towards him it was about 1,500 feet distant, traveling in the arc of a curve, sideways, at a speed *428between 80 and. 100 miles per hour. Plaintiff tried to avoid a collision by doing what he described as getting “beyond the tangent point in the radius” of the arc the oncoming car was traveling to. To do so, he remained on the highway. It is true that he might have taken, to the shoulder, although there was a 12-foot ditch alongside, and thus, as it turned out, avoided collision. But at the time he made his decision he had no assurance that the skidding car would not itself leave the road. As a matter of hindsight, it would seem better not to have remained on the highway. But Mr. Maddux’s actions are not to be judged in the light of hindsight. He was suddenly imperiled by a serious emergency pot of his own making. In this situation, as we have so often held, the law makes allowance for lack of calm judgment, for failure “to adopt what .subsequently and upon reflection may appear to have been a better method.”2 Whether or not Mr. Maddux was contributorily negligent as to the measures he took in the emergency was an issue, for the jury, under proper instruction.

We now reach the problem of the plaintiff whose injuries have resulted from successive impacts, to all intents and purposes concurrent. This is one of the most baffling of our current legal problems,3 'critical because of the extensive use of expressways upon which large numbers of cars travel at high speeds in close proximity to one another. As to the issue presented, the courts are in the most serious conflict, our own Court dividing 3 ways among the *4296 justices sitting the last time the issue was before us.4 The difficulty arises from the fact that we do not have a “joint” tort in the ordinary sense of the word, and thus it is argued that there cannot be joint and several liability.5 There has been no breach of any “joint” duty owed the plaintiffs by the 2 automobile drivers who successively collided with their car. Obviously the two did not act in concert. Nor is the joint enterprise doctrine applicable, nor master-servant, nor principal-agent. Actually what we have is injury to plaintiffs resulting from the independent and tortious acts of 2 tort-feasors.

There is authority, in this situation, that plaintiff must separate the injuries, ascribing some to one tort-feasor and the balance to the other, much as a housewife separates the colored and the white goods before laundering. Such authority concludes that if plaintiff cannot make such differentiation he cannot recover from either. This type of decision is well illustrated by the case of Adams v. Hall (1829), 2 Vt 9 (19 Am Dec 690). In this case an owner of sheep suffered loss to his flock through the depredations of 2 dogs. The owners he sued jointly. It was shown at the trial, however, that they were not joint owners. In addition, there was no testimony as to which dog killed which sheep. In approving a nonsuit it was held that neither owner was liable for the actions of the other’s dog, merely because they “did the mischief in company.”

However defensible such a result may have been in this and cases similar in principle in an agrarian economy shortly after the American Eevolution (and even this is open to question) we do not regard it *430as precedent governing the liability of automobile owners in what are known as “chain collisions” on today’s highways. It should be unnecessary to spell out the differences between the social problems presented or the judicial policies involved in their solution. When we impose upon an injured plaintiff the necessity of proving which impact did which harm in a chain collision situation, what we are actually expressing is a judicial policy that it is better that a plaintiff, injured through no fault of his own, take nothing, than that a tort-feasor pay more than his theoretical share of the damages accruing out of a confused situation which his wrong has helped to create.6 The mere statement of the policy exposes its aberrations. It is at war with at least the last hundred years of judicial progress. It is, in addition, as Dean Wigmore has pointed out,7' utterly inconsistent with the ratio decidendi of precedents going back at least to the year 16138 when the rule of joint and several liability dispensed with the necessity of plaintiff’s proof of just which ruffian inflicted which injury when he was set upon by 3. The reason behind the rule was impossibility, the impossibility of plaintiff’s proving the origin of each of his injuries. Where the same impossibility exists today, our sensitivity to plaintiff’s injury should be no less than that of the king’s bench to its plaintiff, whose “wounding (which in truth was in a cruel and barbarous manner) at Fakenham in Norfolk” was held to impose joint and several liability upon the defendants. It is clear that there is a manifest unfairness in “putting on the injured party the impossible burden of proving the specific shares of harm done by each. * * * Such results are simply *431the law’s callous dullness to innocent sufferers. One would think that the obvious meanness of letting Wrongdoers go scot free in such cases would cause the' courts to think twice and to suspect some fallacy in their rule of law.”9

The fallacy involved turns upon the word “divisible.” In the case before us, at the conclusion of the 2 impacts, Mrs. Maddux suffered from a fracture of the right femur, of the left patella, and of the right radius ulna, in addition to multiple lacerations of the face. She had passed blood in her urine, suffered an eye injury, and, withal, came psychiatric difficulties, possibly “of an organic toxic basis.” Are such injuries divisible? Theoretically, they may be, possibly they are. We may hypothesize situations in which some participant in the tragedy remains uninjured and observant, or in which the force and direction of the impacts are so markedly different that a reasonable allocation of harm to them may be made. But these cases would present no difficulty. The challenging situation is the one before us, involving 2 substantial impacts with multiple injuries, in respect of which a jury would be well justified in concluding that the plaintiff’s various injuries, may not be identified as to origin. As a matter of fact it may be utterly unrealistic to insist that the plaintiff is suffering merely from a series of wounds, separable either legally or medically. Actually the plaintiff may suffer from a composite injury, the ingredients of which are impossible to identify in origin and impracticable to isolate in treatment. Thus in the case before us, was the blood in the urine the result of the first impact or the second? Will the psychiatric treatment be related to the fracture of the femur, or to the multi*432pie lacerations of the face, with its “jagged facial scars,” or to the overall condition?

There is no need to write at greater length upon the various considerations involved in this type of problem in view of the examination given it by Mr. Justice Black in his concurring opinion in the recent case of Meier v. Holt, supra. It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of this responsibility.10 This merely follows the general rule that “where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts generally will not hold the tort-feasors jointly and severally liable.”11

But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the point where the road of authority divides. Much ancient authority, not in truth precedent, would say that the case is now over, and that plaintiff shall take nothing. Some modern courts, as well, hold that this is merely the case of the marauding dogs and the helpless sheep relitigated in the setting of a modern highway. The conclusion is erroneous. Such precedents are not apt. When the triers of the facts decide that they cannot make a division *433of injuries we have, by their own finding, nothing, more or less than an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts in these words: “Where the negligence of 2 or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.”12 The Restatement is in accord. Section 879 reads as follows:

“Concurring or Consecutive Independent Acts.

“Except as stated in § 881 [referring to the apportionment of damages in a nuisance case], each of 2 persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause.”13

The comment upon the above makes its meaning clear:

“A person whose tortious conduct is otherwise one of the legal causes of an injurious result is not relieved from liability for the entire harm by the fact that the tortious act of another responsible person contributes to the result. Nor are the damages against him thereby diminished. This is true where both are simultaneously negligent (see Illustration l14) and also where the act of one either occurs or takes harmful effect after that of the *434other (see Illustration 215). It is immaterial that as between the two, one of them was primarily at fault for causing the harm or that the other, upon payment of damages, would have indemnity against him. It is also immaterial that the conduct of one was seriously wrongful while the conduct of the other was merely negligent or, indeed, blameless. Likewise it is immaterial that the liability of one is based upon common-law rules while that of the other is based upon a statute.”

It is argued, with respect to the above, again quoting the section, that it does not apply “where one of the tort-feasors causes one harm and the other causes another and distinct harm.” "We agree. But such is not our case. As we have endeavored to make clear heretofore if, in truth, the jury is able to determine that one party has caused “one harm,” and another “another and distinct harm,” each will respond for the harm determined by the jury to have been caused by him and that injury alone. The problem before us does not arise if we have “distinct” harms. It is only where the jury is unable to distinguish the harms that difficulty arises.

It is pointed out, also, that one impact took place some 30 seconds after the other. The fact that one wrong takes place a few seconds after the other is without legal significance. What is significant is that the injury is indivisible. The blows of the ruffians referred to in Heydon’s Case, supra, need not necessarily have fallen upon the victim at the same instant of time, and undoubtedly did not. The reason for the rule as to joint liability for damages was the indivisibility of the injuries, not the timing *435of the various blows. As a matter of fact, a distinguished English authority has stated that concurrence, in the law of torts, has no reference to time, except that both torts must precede the damage.16 Carefully reasoned American cases fully support this view.17 The conclusion seems inescapable unless we take the position that “concurrent” actually means “simultaneous,” a position for which there is no well-reasoned authority.

There is no constitutional objection to the imposition of joint and several liability upon concurrent tort-feasors. It is true, as is argued, that no one may be deprived of his life, liberty, or property without due process of law. But it is not clear how this operates to deny a plaintiff, who has suffered manifold deprivations of his own, and without his fault, any recovery whatever against the 2 tortfeasors who injured him. At least, however, the argument puts the issues squarely before us. Is it better, as we asked heretofore, that a plaintiff, injured through no fault of his own, take nothing, rather than that a tort-feasor pay no more than his theoretical share of the damages accruing out of a confused situation which his wrong has helped to create ? Where property is concerned, e.g., where a defendant has confused the goods of another with his own, the holding is threadbare that the defendant must prove which goods are his or all will be awarded to the plaintiff.19 Are we to be less solicitous because the confusion wrought by defendants involves human injury? Many years ago, a Justice, in speaking for this Court, put a pregnant question. He asked, in a ease in which joint liability in tort *436was urged, whether or not the plaintiff “who has thus suffered the wrong” was entitled to a remedy, or whether “the difficulties and dangers [of the suit] are to be thrown upon those presumably in the wrong rather than upon him who was not in fault?” He continued “If in either view injustice is likely to be done, should not the defendants assume or be charged with the risk? Is there, however, likely to be any injustice done in holding them jointly liable? I think not.” 20 Nor do we.

Here, then, is the essence of the problem — "Where is the likelihood of injustice? We think it is in denying the blameless victim of traffic chain collision any recovery whatever. We perceive no reason why his tort-feasors should escape liability because of the very complexity of the injury created by their wrong.

There is no merit in additional points raised. The case is reversed and remanded for new trial. Costs to appellants.

Carr, J.

(dissenting). The principal question at issue in these cases is whether a defendant in an action to recover damages for numerous personal injuries suffered in successive accidents may be held liable in the absence of proof that such injuries were caused proximately by his negligent or otherwise wrongful act. The instant cases resulted from an accident occurring July 15, 1956, on US-112 a few miles from the village of Clinton. The traveled portion of the highway was a 2-lane blacktop road. It was a rainy day and the pavement was wet. The record indicates that it was nearly dark at the time of the occurrence.

*437Plaintiff Fred Maddux was driving a Ford pickup in an easterly direction on the highway in question, his wife and young daughter being in the car with him. Defendant Bryie was following the Maddux car, the speed of each vehicle being between 35 and 40 miles per hour. As Mr. Maddux was approaching a curve in the road he noticed some distance ahead of him an Oldsmobile car driven by defendant Donaldson, approaching at a high rate of speed and from 1,500 to 2,500 feet away at the time. Said car was skidding sideways. He continued on his course, however, and a collision occurred on the pavement. Approximately 30 seconds later, according to the testimony of Mr. Maddux, the automobile of Mr. Bryie ran into the rear of the Maddux truck. Each of the 3 plaintiffs suffered numerous injuries and actions for damages were instituted. The cases were tried together in circuit court and have been submitted in like manner on this appeal.

It appears from the pretrial statement of the circuit judge, and also from an opinion filed by him in the cases, that each of the plaintiffs dismissed as to defendant Donaldson, apparently for the reason that the latter’s insurance carrier was insolvent, that receivership proceedings had been instituted against it, and that each plaintiff had filed a claim therein. In consequence the cases were tried against defendant Bryie alone. At the conclusion of the testimony the trial judge granted defendant’s motion to dismiss the cases brought by Mrs. Maddux and the daughter on the ground that there was no testimony before the jury on which a finding could be based that the negligence of defendant Bryie was the proximate cause of any part of the injuries sustained by either of said plaintiffs, or of the aggravation thereof.

A motion to dismiss the case brought by Mr. Maddux was also submitted on the ground that he was *438guilty of contributory negligence as a 'matter of law in deliberately proceeding in the face of an obvious danger. The trial judge concluded that the testimony clearly indicated the contributory negligence charged, and the motion was granted. The 3 plaintiffs have appealed. On behalf of Mrs. Maddux and the daughter it is argued that the cases should have been submitted to the jury on the theory of joint and several liability on the part of Donaldson and Bryie, and that the latter should have been held liable for the payment of damages for all of the injuries sustained by said plaintiffs in the 2 collisions. On behalf of Mr. Maddux it is insisted that whether he was guilty of contributory negligence was a matter for determination by the jury.

The rule has been consistently recognized in Michigan, as well as in other States, that a tort-feasor may not be held liable for damages for an injury not caused by such defendant’s wrongful conduct. In 15 Am Jur, Damages, § 13, p 404, it is said:

“A defendant is liable only to the extent to which his acts have caused the injury complained of, and it follows that separate wrongs done by independent agents cannot be joined together to increase the responsibility of one of the wrongdoers, notwithstanding any difficulty there may be in determining what part of the injury or loss was the result of the acts or omissions of the defendant, and what part was the result of other causes.”

In Rodgers v. Canfield, 272 Mich 562, an action for damages for malpractice was brought against 2 physicians. The testimony indicated that 1 of said physicians had not participated in all of the alleged acts of malpractice charged against the other., The trial court, however, directed the jury to return a verdict against both defendants for the full, amount of the damages shown. This Court reversed on the *439ground that the defendant whose participation was partial only could not be held liable for the acts of the other defendant in which he did not take part.

In Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich 426, 438, 439, it was declared that:

“The damage recoverable in consequence of a tort is only such as is the direct result of the tort, i.e., damage of which the tort is the proximate cause.” (Citing cases.)

Of like import is Witheral v. Muskegon Booming Company, 68 Mich 48 (13 Am St Rep 325), which recognized the general rule that the defendant was not liable for the independent acts of third parties.

It will be noted that we are not dealing in these cases with the possible liability of a first tort-feasor for injuries sustained by plaintiff as the result of subsequent acts by others. Conceivably the facts in such a case might justify the conclusion that the first wrongdoer’s conduct had. set in motion a chain of circumstances, that should have been foreseen by him, involving the theory of continuing negligence or other sufficient reason for not applying the- doctrine of subsequent independent acts of negligence on the part of another. Neither do we have a case of joint tort-feasors or of concurrent acts by 2 or more parties resulting in an injury. As plaintiff Fred Maddux testified, approximately 30 seconds elapsed between his collision with the Donaldson car and the subsequent impact by the automobile of defendant Bryie. A number of injuries were sustained by each of the parties, but the proofs failed to indicate what specific injuries were caused by each impact. In fact, there was a dearth of proof that defendant Bryie, with whose liability we are solely concerned in the instant cases, was responsible for any of the injuries sustained by Mrs. Maddux or the daughter.

*440In the case of Young v. Dille, 127 Wash 398 (220 P 782), the facts involved were very similar to those in the cases now before us. It was the claim of the plaintiff that defendant Dille negligently ran into plaintiff’s vehicle, causing it to change its course so that it came to a stop on the opposite side of the street where it was hit by a truck driven by the defendant Harris. Under instructions from the trial court the jury returned verdicts against both defendants. In granting a new trial on the ground that the proofs did not sustain such verdicts, it was said (pp 404, 405) :

“The cause seems to have been tried in the court below on the theory that the defendants Dille and Harris were joint tort-feasors. But it seems to us manifest that they were not such, either if the facts be considered from the allegations of the complaint or by the proofs shown at the trial. To be joint tort-feasors, the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. Neither of these conditions were here present. The allegations and the proof are that Dille by one act of negligence caused the appellant certain injuries, and, that Harris, after the commission of this act of negligence, by an independent act of negligence caused him further and additional injuries. The acts have no relation to each other except nearness in time. But time is not a determinative consideration. If the acts are not joint in fact, or, if the acts do not unite in causing a single injury, they are as widely separated in law by the lapse of moments as they would be were they separated by the lapse of hours or days. Plainly, under the conditions here shown neither of the actors in the wrong could be responsible for the injuries caused by the other.

“The jury, therefore, sensed the true situation when they made separate findings against the defendants. But the fault in the verdict lies in the *441fact that the evidence did not justify the findings. A part of the injuries for which recovery was sought was the destruction of the automobile. This was destroyed in part by the act of Dille and in part by the act of Harris. The injuries caused by each was'capable of somewhat definite measurement, yet there was no attempt at measurement, and the jury could do no more than guess as to the extent of the damages each of the wrongdoers severally caused.”

As before noted, in the cases at bar there was no testimony introduced from which a jury might conclude that injuries sustained by Mrs. Maddux or by ''the daughter resulted from defendant Bryie’s negligence. The motion was predicated on the lack of proof, and the trial judge made his ruling accordingly. In the case above cited It appears that there was evidence as to certain elements of damage caused by each defendant, but the proofs were insufficient to sustain the verdict as rendered.

This Court in several prior cases has considered the question here involved. The decision in Frye v. City of Detroit, 256 Mich 466, indicates the rule of law that has been uniformly observed. There action was brought to recover for personal injuries resulting in the death of plaintiff administrator’s decedent. It appears that the injured party was standing in a safety zone waiting for a streetcar, was struck by an automobile, and thrown upon the tracks of the defendant city where he was struck by a streetcar. Suit was brought against the owner and driver of the automobile, as well as against the city, but no service of summons was had on the individual defendants. The proofs on the trial failed to show whether the death was caused by the. automobile or by the streetcar. In commenting on the situation, and affirming the directed verdict for the city, it was said (pp 469, 470):

*442“It is a well-established rule that, in order for plaintiff to recover against the city, it was necessary to show the negligence of defendant city and the proximate cause of death. Upon the second issue plaintiff did not, and could not, inform the jury of the injuries inflicted by the streetcar or those inflicted previously by the automobile. It was necessary for plaintiff to submit proof, from which the jury could draw the reasonable inference that the death of plaintiff’s decedent would not have occurred but for the negligence of defendant city. The plaintiff must go beyond showing that such might have been the case.

“The rule, in negligence cases, is well stated in Ramberg v. Morgan, 209 Iowa 474 (218 NW 492):

“ ‘True, it was not necessary for plaintiff to prove the causal connection by direct evidence, but substantial evidence must be furnished upon which a reasonable basis for inference may be made. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than 1 proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this Court and by other courts.’ ”

A similar factual situation was involved in De Witt v. Gerard, 274 Mich 299, to that in the Frye Case, the plaintiff being struck by an automobile and thrown upon the streetcar tracks or in proximity thereto. He was then further injured by a streetcar. The action was brought against both the automobile driver and the city, plaintiff submitting to a nonsuit as to the former. The trial court directed a verdict in favor of the city but this Court concluded from the testimony in the case that plaintiff had suffered *443certain injuries inflicted on his person by the streetcar, and that the question of allowing damages therefor should have been submitted to the jury. As the trial court correctly found, there is no such testimony in the instant cases as to the liability of defendant Bryie. The recent decision of Meier v. Holt, 347 Mich 430, is in accord with the prior cases. As in the cases at bar, the acts of negligence of the defendants were not concurrent nor was there a single indivisible injury.

As before noted, it is claimed on behalf of appellants that this Court should now adopt the rule that in a case of this nature involving successive acts by claimed tort-feasors with injuries resulting to a plaintiff the defendants should be considered as jointly and severally liable to respond in damages for all injuries sustained. Mr. Justice Smith, in writing for reversal of the cases now before us, recognizes the rule that where distinct and separate injuries have resulted from independent acts of 2 or more tort-feasors each should be held liable to respond for the results of his own wrongdoing, assuming that the proofs provide a sufficient basis for the trier of the facts to apportion the damages between or among the defendants. In the event, however, that the proofs, as in the instant cases, do not furnish a basis for such allocation of damages as against the defendants it is contended that the injuries received should be considered as a single indivisible injury and the defendants held jointly and severally liable on the theory that they are guilty of concurring acts of negligence or other wrongdoing. Such theory would lead to the conclusion in the instant cases that defendant Bryie may have judgment entered against him for the full amount of the damages for the injuries sustained by Mrs. Maddux and the daughter. Justice Smith would reverse and remand for final disposition in accord*444anee with Ms suggested solution of the problem before us.

We are not in accord with such conclusion. Basically, it is inconsistent with the general rule that liability may not be imposed in a tort action of this character unless the injuries' for which the recovery of damages is allowed resulted proximately from the wrongful conduct of the defendant so required to respond. The application of such theory would obviously result in relieving a plaintiff bringing action against 2 or more successive tort-feasors of the duty of proving his case against each in order to be entitled to recover damages therefrom. Under ordinary circumstances at least a plaintiff might consider that a joint and several judgment against both or all of the defendants would be preferable to séparate recoveries against them based on evidence. This might well result in forcing a defendant to ás'sume the burden of showing liability of one of his codefendants in order to avoid a judgment against himself.

Attention has been called to the following- quotation from 1 Cooley on Torts (4th ed), § 86, pp 277, 278:

“The weight of authority will, we think, support the more general proposition, that, where the negligences of 2 or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action.”

It will be observed that the statement quoted refers to concurrent acts of negligence where the result is a single indivisible injury. Such is not the situation in the cases at bar. Each plaintiff received a number of injuries and the acts of Donaldson and Bryie were, not concurrent. There was an interval of time between the collision of the Maddux car with *445Donaldson’s automobile- and tbe subsequent impact resulting from defendant Bryie’s vehicle running into the rear of the Maddux car. The balance of the section from which the above quoted language is taken indicates clearly that the textwriter was referring solely to the liability of concurrent tortfeasors whose acts had produced a single indivisible injury. The cases cited in support of the text, including Young v. Dille, supra, emphasize the application of the rule stated. Among such cases is Weingand v. City of North Platte, 108 Neb 17 (187 NW 90). Involved there was the question of liability on the part of several defendants guilty of diverting rainwater from the roofs of their buildings into an overloaded sanitary sewer in violation of a municipal ordinance. Plaintiff claimed that the basement of the hotel that he was operating was flooded and, in consequence, that he was damaged by the acts of the several defendants and entitled to equitable relief. In deciding the issues raised in plaintiff’s favor it was held the defendants, while not acting in concert, were liable, their concurrent acts of wrongdoing having resulted in a single injury.

Justice Smith has also referred to the rule stated in 4 Restatement, Torts, § 879, to the effect that “each of 2 persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause.” The discussion of the rule and the illustrations given in the comment thereon clearly suggest that the reference is to concurrent conduct of tort-feasors resulting in a single injury. The following paragraph seems to make this interpretation quite clear:

“The rule stated in this section does not apply where 1 of the tort-feasors causes 1 harm and the other causes another and distinct harm. Nor does *446tbe rule apply where a person causes a harm which is aggravated by another; while each of the 2 tortfeasors is liable for the harm he causes, the joint liability is limited to the aggravation. In such cases both may be liable for the harm caused by the aggravation, but the second tort-feasor is not liable for the original harm.”

Such comment clearly indicates the scope of the rule and its nonapplication to a situation of the character involved in the cases at bar.

There is another aspect of the situation before us that merits consideration. The Fourteenth Amendment to the Federal Constitution forbids any State to “deprive any person of life, liberty, or property, without due process of law.” The Constitution of Michigan, art 2, § 16, contains a like inhibition. The query is suggested, if a defendant in a case of the nature under consideration is adjudged to pay damages for injuries not shown to have been caused by wrongful conduct attributable to him, does such result comport with the basic requirement pertaining to due process of law? If appellants are correct in their claim that they are entitled to judgment against defendant Bryie for damages for all injuries sustained in the successive automobile collisions in the absence of proof sufficient to support a finding that defendant Donaldson was alone responsible for certain of said injuries, the obvious result is that defendant Bryie will be forced to pay damages for injuries not shown to have been caused by his own wrongful act or by the act of another under such circumstances as to be attributable to him. Such a situation is not comportable with due process.

In the comparatively recent ease of Thompson v. City of Louisville, 362 US 199 (80 S Ct 624, 4 L ed 2d 654), the supreme court of the United States had before it an unusual situation involving the matter of due process under the Fourteenth Amendment. *447Appellant Thompson was convicted in the police court of the city of Louisville of offenses referred to as loitering and disorderly conduct. He was fined $10 on each charge. It was his contention that there was no proof in the case tending to show that he had committed either of said offenses. Having no remedy in any Kentucky court other than the court in which he was tried, he sought review on certiorari in the Federal supreme court. Because of the unusual situation the writ issued and the court after reviewing the record upheld Thompson’s contention, saying (p 206):

“Thus we find no evidence whatever in the record to support these convictions. Just as ‘conviction upon a charge not made would he sheer denial of due process,’ so is it a violation of due process to convict and punish a man without evidence of his guilt.”

By like process of reasoning the conclusion follows that to compel one to respond in damages because of injuries not shown by proof to be attributable to him involves a denial of due process. The trial judge was right in granting defendant Bryie’s motions in the cases of Mrs. Maddux and the daughter.

This brings us to the question whether the evidence indicated with the requisite degree of clarity that plaintiff Fred Maddux was guilty of contributory negligence barring recovery. In a written opinion filed by the trial judge he summarized his conclusion as follows:

“Fred Maddux saw the obvious danger of the Donaldson car, out of control, coming and careening towards him, at a distance away from him of from 1,500 to 2,500 feet down the highway. He did not stop. He could have stopped. He drove on towards a clearly seen danger, and took a chance on dodging the Donaldson car. His decision was unfortunate for himself and many persons. He was not confront*448ed with an emergency in making bis decision. He deliberately drove on and contributed to the creation of a real emergency. I rule he is guilty of legal negligence.”

Mr. Maddux, as a witness in his own behalf, testified as follows:

“Q. Your recollection is that the car was ahead of you down the road.

“A. Yes, coming.

“Q. You say it was swinging. Was it skidding sideways ?

“A. It was coming in a gradual arc, sideways down the road.

“Q. It never went off the road, did it?

“A. No, it was on the pavement.

“Q. I think you said what you did was to try to pass the point of the are before that car got to you?

“A. That is right.

“Q. You thought if you could get up past that arc he would miss you 1

“A. Yes, sir.”

A trooper of the Michigan State police investigated the accident shortly after it occurred, going from the Clinton State police post. He testified that the Maddux car and the Bryie car were in the eastbound lane, that there was a shoulder on each side of the road, and that he did not recall that any portion of either of said cars was on the shoulder. Whether after observing the skidding automobile some 1,500 to 2,500 feet ahead of him Mr. Maddux changed his rate of speed does not appear. As before noted, the testimony indicates that he had been driving at a rate of 35 to 40 miles per hour. It is not questioned that he realized that the Donaldson automobile was out of control, and it must have been obvious to him that if he continued on the pavement he might be struck by it and equally obvious that the danger would be increased by his continuing to drive towards *449the skidding automobile before him. Nonetheless that is precisely what he did instead of taking to the shoulder of the road and stopping his car, or reducing its speed to a nominal rate.

Without discussing the matter in detail it must be said that he did not exercise for his own safety and the safety of his wife and daughter the degree of care that a reasonably careful man would have exercised under the same circumstances. He took a chance that he might escape the oncoming danger, but under the circumstances taking such a chance was clearly negligence that contributed to the accident. Mr. Maddux had an opportunity to consider the matter and reach a determination as to the proper course to follow. It may be inferred that he was an experienced driver. He was 44 years old at the time of the trial. The trial judge was not in error in holding him barred by his contributory negligence from recovering damages against defendant Bryie.

The judgments from which the appeals have been taken should be affirmed.

Black, J.

(concurring). With advent of modern motor transit and traffic, the courts of the States are regularly confronted with a new and progressively vexing problem, that of instructing juries properly when a provenly innocent plaintiff is shown as having been injured in the course of multiple or chain vehicular collisions caused by 2 or more negligent motorists.

This case, unlike Meier v. Holt, 347 Mich 430, in fact (see footnote pp 440, 441 of Meier’s report), is one where it cannot “certainly” be said that the injuries suffered by each plaintiff would have resulted, absent concurrence of the successive negligent acts *450of Donaldson and Bryie. Such fact brings into play Judge Cooley’s summary of that which Justices Smith and Carr do not with usual eurythmics see eye to eye upon. I refer to the following (quoted in Meier, pp 438, 439):

“Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tortfeasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort-feasors; whereas, if the results, as well as the acts, are separable, in theory at least, so that it can be said that the act of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby, each can be held liable only for so much of the injury as was caused by his act.” 1 Cooley on Torts (4th ed), § 86, pp 279, 280.*

Having signed Mr. Justice Smith’s opinion in this case, I would openly avow what was, and what is to be. Until now the Michigan rule has been settled. Where 2 or more wrongdoers separately cause the plaintiff to suffer an unknown or uncertain part or portion of the damages he has shown, each— hitherto — stood responsible to the plaintiff only for the harm caused by his tort, however difficult it may have been to establish the same. Albrecht v. St. Hedwig’s Roman Catholic Benevolent Society, 205 Mich 395; Frye v. City of Detroit, 256 Mich 466; De Witt v. Gerard, 274 Mich 299; De Witt v. Gerard, 281 Mich 676; Meier v. Holt, 347 Mich 430.

In the past we have differed not upon the rule but upon its admittedly difficult application. See Meier, page 439. Now we affirm that, where the trier or *451triers of fact find they cannot ascertain the amount of damages each, wrongdoer has inflicted, then such trier or triers are authorized to assess the plaintiff’s damages against any one or all of such wrongdoers on ground that the latter have — in law — participated in the infliction of “a single, indivisible injury.” This, it seems to me, is the only way to avoid the difficulties of our present rule.

These sentiments are recorded solely that lawyers may know that the former rule is now definitely modified to the extent, and only to the extent, we now attest by majority vote. Otherwise such former rule remains in full force.

Miller, Chief Justice:

We have accepted certain certified questions from the United States District Court for the Southern District of West Virginia pursuant to the provisions of W. Va. Code, *700 51-1A-1, et seq. 1 Generally, we are asked to state (1) whether Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 S.E.2d 338 (1978), which abolished the doctrine of inter-spousal immunity, is to be applied retroactively, and (2) what effect our adoption of comparative negligence as announced in Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979), has upon both the rules of contribution among joint tortfeasors and a jury’s distribution of the damage award under our wrongful death statute, W. Va. Code, 55-7-6 (1976).

The facts of the case have been presented to us as follows:

“Plaintiffs in this action, Arnold L. Sitzes and Edward L. Rucks, are administrators of the estate of Patricia Ann Roberson. Mrs. Roberson was killed in an automobile accident on January 19, 1977. At the time, she was a passenger in a pick-up truck driven by her husband, James R. Roberson, which collided with a motor truck driven by Oswald R. Carter, an agent and employee of the defendant Anchor Motor Freight, Inc. Mrs. Roberson is survived by her husband and her son, Joseph Eugene Roberson.

“Plaintiffs commenced this action against the defendant on November 23, 1977. With leave of court, defendant filed a third-party complaint for contribution against Mr. Roberson on February 12, 1980. This court, preceiving a potential conflict between West Virginia’s normal rules of contribution (which would apportion damages equally among joint tortfeasors) and the state’s newly-adopted rule of comparative negligence (which requires a jury to ‘assign the proportion or degree of this total negligence among the various parties,’ Bradley v. Appalachian Power, 163 W. Va. 332, 256 S.E. 2d 879, 885 (1979), and which denies recovery to a plaintiff whose negligence equals or exceeds 50% of the combined negligence of the *701 parties to the accident), instructed the jury to assign percentages of fault to the third-party plaintiff and third-party defendant if it found that both had been negligent. Plaintiffs’ decendent was not negligent, and was therefore excluded from the apportioning.

“On March 31, 1981, the jury returned a verdict for the plaintiffs and against the defendants and assessed plaintiffs’ damages in the amount of $100,000. In accordance with the provisions of West Virginia Code § 55-7-6, the jury directed that the plaintiffs should distribute $75,000 (or 75%) of the award to Mrs. Roberson’s son, Joseph Eugene Roberson, and $25,000 (25%) to Mrs. Roberson’s husband, James R. Roberson, the third-party defendant.

“On the third-party claim, the jury found both the third-party plaintiff and the third-party defendant negligent, and found that the degree of negligence attributable to Anchor Motor Freight was 70% and the degree attributable to James R. Roberson was 30%.

“Thus, in summary, the jury concluded that the accident was caused by the combined negligence of the defendant (70% negligent) and the third-party defendant (30% negligent); that the amount of damages was $100,000; and that the award should be distributed 25% to the decedent’s husband and third-party defendant and 75% to the son.”

RETROACTTVITY OF COFFINDAFFER

We answer the first certified question — ‘[W]as the third-party complaint barred by the doctrine of interspousal immunity?” in the negative. In doing so, we rule that Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 S.E.2d 338 (1978), is to be applied retroactively.

Our decision in Coffindaffer was, based on two principles: (1) the plain meaning of W. Va. Code, 48-3-19 (the Married Woman’s Act), which allows a married woman to sue or be sued as if she were single, and (2) the existence of a *702 general movement in all jurisdictions to abolish common law immunities, including interspousal immunity.

We acknowledged in Coffindaffer that we were overruling this Court’s previous construction of the Married Woman’s Act as announced in Poling v. Poling, 116 W. Va. 187, 179 S.E. 604 (1935). In doing so, we noted that the trend in this State was decidedly in favor of the abolishment of common law immunities. For example, charitable immunity of hospitals was struck down in Adkins v. St. Francis Hospital, 149 W. Va. 705, 143 S.E.2d 154 (1965). Family immunity was limited to parent-child and husband-wife relationships in Freeland v. Freeland, 152 W. Va. 332, 162 S.E.2d 922 (1968). In Long v. City of Weirton, _ W. Va. _, 214 S.E.2d 832 (1975), and Higginbotham v. City of Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974), we held that there was no common law governmental immunity for municipal corporations. Furthermore, in Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976), the doctrine of parental immunity was abrogated so as to permit an unemancipated minor child to sue for injuries received in a motor vehicle accident. 2 All of these decisions except Freeland overruled prior case law and all were decided by unanimous opinion. These decisions found support from other courts as well. In Coffindaffer, we cited twenty-four other jurisdictions which had abolished at that time the common law doctrine of interspousal immunity. Most commentators also oppose the doctrine. 3

When we compare the reasons given for the decision in Coffindaffer to our rules in regard to retroactivity, we *703 conclude that the case should be made retroactive. In Syllabus Point 4 of Bradley, we discussed the primary reason for extending retroactivity:

“Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law.” 4

In Syllabus Point 5 of Bradley, 5 we outlined six factors we would consider in limiting retroactivity. These factors can be briefly summarized: (1) whether the issue involves a settled area of the law where retroactivity would be less justified or a changing area where retroactivity would be more likely and whether the new rule is foreshadowed; (2) procedural rules are more likely to be afforded retroactivity than substantive points; (3) common law rule changes are more likely to be applied retroactively; (4) substantial public policy changes are less likely to be applied retroac *704 tively; (5) the more radical departure from prior law the less likelihood for retroactivity; and (6) analogous decisions of other jurisdictions.

The issue in this case arises out of a tort, not a traditionally settled area of the law, and it is clearly foreshadowed by our decisions prior to Coffindajfer overruling other common law immunities, particularly family immunities. Moreover, there was and still is a recognized trend throughout the rest of the country to limit or abolish common law immunities. Though the issue presented here is substantive rather than procedural, in the tort area, our statute of limitations and the rule itself (dealing as it does solely with spouses) limits the class that will benefit by retroactivity. Thus, the impact of applying Coffindajfer retroactively is not substantial as it will affect only a limited number of cases. 6

The fourth and fifth criteria of Bradley indicate that prospective application of a rule will ordinarily be favored where substantial public issues are involved arising from statutory or constitutional interpretations that represent a clear departure from prior precedent. We do not believe any substantial public policy issue was involved in Coffindajfer and its decision was not a radical departure from our previous cases restricting the substantive law of a common law immunity. 7

*705 In viewing all the circumstances under the facts of the present case, we conclude that the decision to abolish the common law rule of interspousal immunity contained in Coffindaffer should be applied retroactively.

CONTRIBUTION-JOINT AND SEVERAL LIABILITY

Having decided that Coffindaffer is to be applied retroactively, we next address the remaining certified questions relating to contribution among joint tortfeasors and payment of the jury’s award. 8

This jurisdiction is committed to the concept of joint and several liability among tortfeasors. Tennant v. Craig, 156 W. Va. 632, 195 S.E.2d 727 (1973); Hutcherson v. Slate, 105 W. Va. 184, 142 S.E. 444 (1928). A plaintiff may elect to sue any or all of those responsible for his injuries and collect his damages from whomever is able to pay, *706 irrespective of their percentage of fault. Our adoption of a modified rule for contributory negligence in Bradley did not change our adherence to joint and several liability:

“Neither our comparative negligence rule nor Haynes [v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977)] is designed to alter our basic law which provides for joint and several liability among joint tortfeasors after judgment. Hardin v. New York Central Railroad, 145 W. Va. 676, 116 S.E.2d 697 (1960); Muldoon v. Kepner, 141 W. Va. 577, 91 S.E.2d 727 (1956). Most courts which have considered the question after either a statutory or judicial adoption of some form of comparative negligence have held that the plaintiff can sue one or more joint tortfeasors, and if more than one is sued and a joint judgment is obtained, he may collect the entire amount from any one of the defendants. See, e.g., American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 588-90, 146 Cal. Rptr. 182, 188-90, 578 P. 2d 899, 905-06 (1978); Gazaway v. Nicholson, 190 Ga. 345, 348, 9 S.E.2d 154, 156 (1940); Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 30, 334 N.Y.S.2d 851, 855, 286 N.E.2d 241, 243 (1972); Seattle First National Bank v. Shoreline Concrete, 91 Wash.2d 230, [234-36] 588 P.2d 1308, 1313-1314 (1978); Chille v. Howell, 34 Wis.2d 491, 498-500, 149 N.W.2d 600, 604-605 (1967); V. Schwartz, Comparative Negligence (1974), § 16.4, at 253.” Bradley at 886.

It is clear from the foregoing quotation that the concept of joint and several liability after judgment relates primarily to the liability of all of the joint tortfeasors to the plaintiff. We decline here, as we did in Bradley, to alter our rule permitting joint and several liability as against joint tortfeasors after judgment. This concept of joint and several liability after judgment runs throughout other areas of our judgment law. E.g., Newton v. Dailey, _ W. Va. _, 280 S.E.2d 91 (1981); W. Va. Code, 55-8-6. 9

*707 COMPARATIVE CONTRIBUTION

In the present case, the trial court permitted the jury to apportion the two joint tortfeasors. The jury concluded that the defendant, Anchor Motor Freight, Inc., [hereinafter Anchor], was 70% at fault while the third-party defendant, Mr. Roberson, was found to be 30% at fault. 10 The certified question inherently demands consideration of whether we recognized that primary fault or negligence should be apportioned among joint tortfeasors in accordance with their degrees of fault.

The basic purpose of the joint and several liability rule is to permit the injured plaintiff to select and collect the full amount of his damages against one or more joint tortfeasors. This rule however need not preclude a right of comparative contribution between the joint tortfeasors inter se. The purpose of this latter rule is to require the joint tortfeasors to share in contribution based upon the degree of fault that each has contributed to the accident. There is a definite trend in the field of tort law toward allocation of judgmental liability between the joint tort-feasors inter se. It is thought to be fairer to require them to respond in damages based on their degrees of fault. 11

Historically, at common law, there was no right of contribution between joint tortfeasors on the theory that *708 the law should not aid wrongdoers. The historic development of this point is contained in Northwest Airlines, Inc. v. Transport Workers Union of American, AFL-CIO, et al., 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750, (1981), where Justice Stevens states in note 17:

“Thirty-nine States and the District of Columbia recognize to come extent a right to contribution among joint tortfeasors. In 10 jurisdictions, the common-law rule was initially changed by judicial action.” 12

The right of contribution developed because it was thought unfair to have one of several joint tortfeasors pay the entire judgment and not be able to obtain contribution from any of his fellow wrongdoers. It would seem proper social policy that a wrongdoer should not escape his liability on the fortuitous event that another paid the entire joint judgment. Oddly enough where the action was ex contractu, the common law had no difficulty in fixing a right of contribution where one party to a breached contract paid more than his share of the common obligation. 13

In this State since 1872, by virtue of W. Va. Code, 55-7-13, we have permitted a right of contribution between joint tortfeasors after judgment “to the same extent as if the judgment were upon an action ex *709 contractu.” 14 Thus, our cases in both contract and tort have utilized the phrases “joint and several liability” and the “right of contribution” if the judgment debtor pays more than his pro tanto share of the liability. E.g., Newton v. Dailey, supra; Hutcherson v. Slate, supra; Buskirk v. Sanders, 70 W. Va. 363, 73 S.E. 937 (1912). The traditional method of assigning pro tanto liability was to divide the judgment by the number of debtors who were liable on the judgment. Cf. Hutcherson v. Slate, supra; Prosser, Law of Torts §50 at 305-10 (4th ed. 1971).

Once a right of contribution was recognized between joint tortfeasors, courts and commentators 15 began to realize that a more equitable method of handling the right of contribution inter se would be to allocate it according to the degrees of fault attributable to each tortfeasor. This concept arose from the fact that in many cases involving joint tortfeasors, the tortfeasors were vastly unequal in their degrees of fault or negligence. 16

*710 One of the catalysts for adopting a system of comparative contribution was the relaxation of the common law rule that a plaintiffs contributory negligence completely barred his recovery. With the adoption of comparative negligence statutes and case decisions allowing allocation of negligence between plaintiffs and defendants, the allocation of fault among joint tortfeasors seemed the next logical step.

Comparative contribution makes the right of contribution equatable to the degree of fault between each tortfeasor. This is in keeping with the trend toward reducing substantial artificiality or unfairness in tort law. A number of states by statute now base contribution on relative fault. 17 Several courts have independent of any legislation adopted a form of comparative contribution. E.g., American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 146 Cal. Rptr. 182, 578 P.2d 899 (1978); Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 374 N.E.2d 437 (1977), modified, 70 Ill.2d 16 (1978); Packard v. Whitten, 274 A.2d 169 (Me. 1971); Tolbert v. Gerber Industries, Inc., 255 N.W.2d 367 (Minn. 1977); Missouri Pacific Railroad Company v. Whitehead and Kales Company, 566 S.W.2d 466 (Mo. 1978); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962).

Over the last twenty years there has been a noticeable trend in our tort decisions to ameliorate the rigidity of many common law rules. In the earlier portions of this opinion, we cited our cases which have lifted the bar of various common law immunity doctrines. In Bradley we alleviated the harshness of the doctrine of contributory negligence. In Ratlief v. Yokum, _ W. Va. _, 280 *711 S.E.2d 584 (1981), we recognized that as a result of the doctrine of comparative contributory negligence, there was no need to continue the complex common law doctrine of last clear chance. Furthermore, in Morningstar v. Black and Decker Manufacturing Company, supra, we discussed at some length our historic role in developing the common law.

We have attempted not only substantively but procedurally to fashion a more equitable allocation of fault and its attendant liability in our tort law. Our seminal decision of Haynes v. City of Nitro, supra, recognized the right of a joint tortfeasor to bring in a fellow joint tortfeasor by way of a third-party complaint under Rule 14 of our Rules of Civil Procedure. The purpose of this rule was to modify the strict common law principle that prevented a right of contribution among joint tortfeasors before judgment. The old common law rule enabled the plaintiff to sue one of several joint tortfeasors and hold him responsible for the entire damage claim, even though other joint tortfeasors had contributed to the damages. Because the defendant had no right prior to Haynes, supra, to bring in by way of contribution another joint tortfeasor, he became liable for the entire judgment. The statute permitting contribution after judgment applied only to those who were joined on the judgment. W. Va. Code, 55-7-13. 18

It must be stressed that Bradley did not deal with allocation of the primary negligence of the defendant joint tortfeasors inter se. Bradley’s concern was in the area of the plaintiff’s contributory negligence and modified the common law rule that any contributory negligence of the plaintiff barred his recovery. In Bradley, we adopted a rule of comparative contributory negligence allowing recovery to the plaintiff so long as the plaintiff’s degree of contributory negligence did not equal or exceed that of the primary negligence of the other parties to the accident.

*712 While it is true in Bradley we used the general term “comparative negligence,” we made explicit in Syllabus Point 3 of Bowman v. Barnes, _ W. Va. _, 282 S.E.2d 613 (1981), that the plaintiffs contributory negligence was to be compared to all of the parties of the accident, not just the defendants involved in the litigation:

“In order to obtain a proper assessment of the total amount of the plaintiffs contributory negligence under our comparative negligence rule, it must be ascertained in relation to all of the parties whose negligence contributed to the accident, and not merely those defendants involved in the litigation.”

Moreover, it is clear from Bowman that insofar as the plaintiffs contributory negligence is concerned, recovery is determined by comparing the plaintiffs degree of fault to that of all of the parties to the accident who are joint tortfeasors as a unit and not to each party on an individual basis. 19

In neither Haynes nor Bradley did we discuss the question of whether the primary fault of the defendant joint tortfeasors should be allocated in accordance with their respective degrees of fault. However, the fundamental concepts of both Haynes and Bradley lead ineluctably *713 to this conclusion as they are both premised on making a more equitable adjustment of tort liability based on a party’s degree of fault. In the earlier portions of this section, we have noted the historical development of these concepts. We, therefore, conclude that as between joint tortfeasors a right of comparative contribution exists inter se based upon their relative degrees of primary fault or negligence. By moderating the bar of contributory negligence for the plaintiff and permitting comparative contribution between joint tortfeasors, we have provided a reasonable balance of fairness for both plaintiffs and defendants.

Although only tangentially related to the certified question, we believe it is essential for future guidance of our trial courts to discuss some aspects of how the right of comparative contribution operates proeedurally. First, the right of contribution established in Haynes, supra, is not mandatory but must be asserted by the defendant by filing a third-party claim. The right of comparative contribution is likewise not automatic. Because the right of comparative contribution is designed for the benefit of defendant joint tortfeasors, it can only be invoked by one of the joint tortfeasors in the litigation. The method for invoking the right of comparative contribution is be requesting that special interrogatories pursuant to Rule 49(b) of the West Virginia Rules of Civil Procedure be given to the jury requiring it to allocate the various joint tortfeasors’ degree of primary fault. See Packard v. Whitten, supra; Hill v. Okay Construction Co., 312 Minn. 324, 252 N.W.2d 107 (1977); H. Woods, The Negligence Case: Comparative Fault §18:1-3 (1978); V. Schwartz, Comparative Negligence §17:4 (1974). In the absence of such request, all joint tortfeasors, who are parties to the action and found to be liable to the plaintiff, will then share in the total judgment on a pro rata basis according to the number found liable. 20

*714 It is apparent that in a third-party suit like the present case, if neither the orignial defendant nor the third-party defendant request special interrogatories on their comparative contribution, the verdict form given to the jury would inquire whether the jury finds the defendant and/or the third-party defendant liable to the plaintiff. If both the defendant and the third-party defendant are found liable, the plaintiff could only collect the judgment against the original defendant. 21 The original defendant (third-party plaintiff) would then collect 50% of the judgment as against the third-party defendant. Of course, where, as in the present case, a request was made for allocation of primary negligence, then the right of contribution will be based on the percent of fault so found. 22

In the present case, the third-party defendant, Roberson, was not a co-defendant. Thus, insofar as the plaintiff is concerned, his entire judgment of $100,000 is collectible only against the defendant, Anchor. On the other hand, in the third-party action filed by Anchor against Roberson, the third-party defendant, was found to be 30% at fault. This means that Anchor is entitled to collect $30,000 from the third-party defendant Roberson.

BRADLEY’S EFFECT ON CONTRIBUTION

We are asked whether Anchor which was found liable for 70% of the negligence, can pursue its third-party *715 action against Roberson who was found to be only 30% at fault. The answer is yes. Nothing in Bradley bears on the right of contribution. Bradley moderated the common law bar of contributory negligence so as to permit a plaintiff to recover his damages even though he was found to be partially contributorily negligent.

In the present case, Anchor is not pursuing a claim for its damages arising out of the accident as against the third-party defendant Roberson. Its position as a third-party plaintiff rests upon a claim for contribution against a joint tortfeasor under Haynes, swpra. Essentially, Anchor seeks to allocate part of the primary negligence for the accident with a joint tortfeasor and therefore its contributory negligence under Bradley is not at issue. We stated in Syllabus Point 4, in part, of Sydenstricker v. Unipunch Products, Inc., et al., _ W. Va. _, 288 S.E.2d 511 (1982):

“The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation.”

Once comparative fault in regard to contribution is recognized, recovery can be had by one joint tortfeasor against another joint tortfeasor inter se regardless of their respective degree of fault so long as the one has paid more than his pro tanto share 23 to the plaintiff. In the present case, once Anchor pays the entire $100,000 award to the plaintiffs, it is entitled to collect on its $30,000 judgment against the third-party defendant, Roberson.

*716 THE SET-OFF PROBLEM

Under the provisions of W. Va. Code, 55-7-6, 24 the jury may allocate the distribution of the wrongful death award to the beneficiaries. In this case, the jury awarded 75% of the damages to the deceased’s son and 25% to the deceased’s spouse, Mr. Roberson, who was the driver of the pick-up truck and the third-party defendant. As previously discussed, Mr. Roberson’s negligence in the third-party action was set at 30%. The total award to the plaintiff was set at $100,000. Therefore, Mr. Roberson’s share of the liability under comparative contribution would be $30,000. Anchor would like to “set-off” against the $25,000 it owes to Mr. Roberson (on the $100,000 jury award) the $30,000 for which he has been found liable to Anchor in the third-party action.

The question of the right of a defendant in a tort case to set-off a judgment he has obtained against the plaintiff on an opposite judgment the plaintiff has obtained against him when insurance is involved has been the subject of some commentary 25 and has been treated in two jurisdic *717 tions. Jess v. Herrmann, 26 Cal.3d 131, 161 Cal. Rptr. 87, 604 P.2d 208 (1979); Stuyvesant Insurance Company v. Bournazian, 342 So.2d 471 (Fla. 1977). See also Uniform Comparative Fault Act, 12 U.L.A. §3 (1982 Cumm. Supp.). In both of these jurisdictions, the courts had previously adopted a pure comparative negligence rule. Both courts concluded that they would not permit a “set-off’ where there was liability insurance coverage. Both courts reasoned that if a “set-off” were permitted on the judgments so that only a net judgment was payable, then the real beneficiaries of the “set-off’ would be the parties’ insurance carriers. 26 This benefit would be contrary to the contractual provisions of the ordinary liability insurance policy requiring the company to pay for damages incurred by its insured and would result in the injured parties receiving less money than the jury had awarded for their injuries. 27 Moreover, both courts indicated that to permit this windfall where insurance is involved would be contrary to the State’s financial responsibility law requiring insurance coverage to provide financial protection for damages arising out of accidents.

We can accept these policy reasons advanced by the California and Florida Courts for disallowing set-offs on *718 judgments in tort actions where there is underlying insurance coverage. Generally, parties may set-off on judgments obtained against each other. This rule is, however, not a matter of absolute right but subject to the court’s discretion. 47 Am.Jur.2d Judgments §1003 (1969); 49 C.J.S. Judgments §566(c) (1947). In Nuzum v. Morris, 25 W. Va. 559, 566-67 (1885), we discussed this principle at some length:

“In Mitchell v. Oldfield, [4 T. R. 123], it is said that the authority of the court to set off opposite judgments did not depend on the statutes of set off but on the general jurisdiction of the court over the suitors in it; that it was an equitable part of this jurisdiction and had been frequently exercised. The same doctrine is strongly and clearly announced in Williams v. Evans, 2 McCord, and in 3 Watts, in Tuck, Corn’s, and in Montague on Set-Off, [5, 6 and 7]. The courts have been gradually extending this equitable remedy. (Barker v. Braham, [2 Blackst. 896]); and opposite demands arising upon judgments may on motion be set off against each other, whenever such set-off is equitable, though the judgments are in different courts, and though all the parties to the different records are not the same. ... [A]ll applications of this kind, as they are founded on no positive statute or any fixed rule which compels the court to grant them, are addressed to the discretion of the court; ...”

See also White v. Moss, 88 W. Va. 1, 106 S.E. 72 (1921); Faulconer v. Stinson, 44 W. Va. 546, 29 S.E. 1101 (1898); Payne v. Webb, 29 W. Va. 627, 2 S.E. 330 (1887).

In view of the foregoing law, we conclude that there is no right of judgment set-off where in a tort case parties have obtained counter judgments against each other and both parties are fully covered by liability insurance as to such judgments. In the present case, we understand that both Anchor and Roberson have adequate liability insur- *719 anee and therefore no judgment set-off would be appropriate. 28

The certified questions having been answered, this case is dismissed from the docket.

Answered and dismissed.

OPINION

BIVINS, Chief Judge.

Plaintiff sued to recover damages for personal injuries sustained when the car he was driving struck two thoroughbred horses on Christmas Eve 1985. Following a bench trial, the court found no negligence on the part of defendant Robert W. Lake, the owner of the fenced property on which the horses were kept, and dismissed plaintiff’s complaint against him with prejudice. Plaintiff does not appeal that dismissal. The trial court found the remaining defendants, Edgar L. Lake and Roland Hohenberg, the owners of the two horses, had engaged in a joint venture as to the control and maintenance of the two horses and held them jointly and severally liable to plaintiff for the damages awarded. It predicated liability on the doctrine of res ipsa loquitur as well as negligent violation of applicable statutes and San Juan County, N.M., Ordinance 10 (July 20,1982). The trial court assessed no negligence against plaintiff. From a judgment entered on the findings, Edgar and Roland appeal.

Although defendants raise four issues on appeal, we consolidate them for discussion as follows: (1) whether the trial court erred in finding defendants liable either under the doctrine of res ipsa loquitur or for violation of applicable statutes and the ordinance (negligence per se); and (2) whether the trial court erred in finding defendants engaged in a joint venture, resulting in joint and several liability, and in failing to apportion fault between the two defendants. We hold substantial evidence supports liability against both defendants for negligence per se, and need not, therefore, discuss the trial court’s findings on res ipsa loquitur. We hold, however, that there is insufficient evidence to support the finding of joint venture. Accordingly, we set aside the judgment and remand for apportionment of negligence between defendants. Under the circumstances of this case, it cannot be determined which defendant was more at fault. Therefore, we hold the burden was on defendants, not plaintiff, to prove apportionment.

FACTS

Summarizing the trial court’s findings of fact, plaintiff was traveling west on County Road 6700 in San Juan County at approximately 6:00 p.m. on December 24, 1985, in a safe and lawful manner, when two horses darted onto the highway in front of him. “It was dark at the time * * * and the horses were dark colored.” Plaintiff did not have time to brake and recalled no details of the accident. He suffered serious injuries.

Robert owned the land adjacent to the county road. His brother, Edgar, kept several of his horses there, including one of the horses involved in the accident. Roland, an associate and trainer for Edgar, owned the other horse and also kept it on Robert’s property.

Edgar had brought the two horses from the racetrack around 3:30 p.m. the day of the accident and fed them at 5:00 p.m., after which Edgar left. Roland remained there. Since Roland did not testify, we are not told if he left subsequent to Edgar and before the accident or remained there until the accident occurred.

There was testimony that the horses could not escape except through the gate. After the accident the gate was found “sprung open.” The latch on the gate confining the horses had been left open.

DISCUSSION

1. Liability

Plaintiff alleged that two state statutes and one local ordinance are applicable to this case. He alleged that violation of these statutes and ordinance constitutes negligence per se. NMSA 1978, Section 30-8-13(A) (Repl.Pamp.1984) provides that “[ujnlawfully permitting livestock upon public highways consists of any owner or custodian of livestock negligently permitting his livestock to run at large upon any part of a public highway which is fenced on both sides.” Section 30-8-13(B) further provides that “[ejvery owner or custodian of livestock shall exercise diligence to keep his livestock off the state public fenced highways.” NMSA 1978, Section 66-7-363(B) (Repl.Pamp.1987) provides that “[i]t is unlawful for any person negligently to permit livestock to wander or graze upon any fenced highway at any time.” San Juan County Ordinance 10 provides, “Any person owning or having charge, custody, care or control of any animal shall keep such animal on his premises.”

In tort actions, negligence is the ultimate fact. Proof of the violation of a statute is proof of that ultimate fact. Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966). In New Mexico, four factors must be present to find negligence per se.

“(1) [T]here must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant must violate the statute, (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.”

Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 577, 734 P.2d 1258, 1260 (1987) (quoting Archibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). See also, e.g., Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963); Srader v. Pecos Const. Co., 71 N.M. 320, 378 P.2d 364 (1963).

All these factors are present in this case. The statutes and ordinance quoted above clearly proscribe allowing animals to run at large on fenced public highways, such as the road involved here; the horses were running free at the time of the accident; plaintiff, a member of the motoring public, was in the class of persons sought to be protected; and his injuries were of the type the legislature sought to avoid. According to Mitchell and Fireman’s Fund Insurance Co. v. Tucker, 95 N.M. 56, 618 P.2d 894 (Ct.App.1980), the purpose of Sections 30-8-13 and 66-7-363 is to protect the motoring public.

Evidence presented at trial showed that livestock had never escaped from the property, and that the horses could not have gotten out of their enclosure unless someone left the gate open. Robert testified that a person leaving the gate open would have been negligent. Edgar contends that, since he testified without contradiction that he secured the gate when he left, that the fence was sufficiently high to contain the horses, and that there was testimony the gate was found open following the accident, the only possible inference is that someone following Edgar failed to properly close the gate. That was one possible inference, particularly if we know whether Roland left after Edgar and before the accident occurred. But we do not know that. For reasons that do not appear in the record, Roland did not testify. The trial court could just as easily infer that Roland did not leave and that Edgar was the last to open the gate before the accident, given the proximity in time from when he left, shortly after 5:00 p.m., and when the accident occurred, 6:00 p.m.

Edgar argues that an inference of negligence on his part is not permissible in face of his testimony that he closed the gate. He also testified, in response to the question of whether the horses could ordinarily get out, absent something wrong with the fence or the gate being left open, “Somebody had to open the gate. I don’t know who did, but somebody had to.” The trial court may have questioned Edgar’s credibility in light of the fact that Roland, his associate and trainer, absented himself from the trial, and Edgar said he never discussed with Roland when he left the evening of the accident.

The trier of fact determines the credibility of the witnesses and resolves conflicts in the evidence. Getz v. Equitable Life Assurance Soc’y of United States, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977); Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967). We do not reweigh the evidence, nor do we substitute our judgment for the trial court’s, so long as the trial court’s findings are supported by substantial evidence. Getz v. Equitable Life Assurance Soc’y of United States.

As to Roland, if the trial court inferred that he remained after Edgar left, it could find him negligent for not observing the unlatched gate or the horses running loose. 1

In this case, because it is undisputed that the animals were running at large, and that they could not have escaped without someone’s negligence, plaintiff carried his burden of showing a violation of the statute. Defendants have not pointed to any evidence which would excuse the violation of the statute, that is, that they did what might reasonably be expected of a person of ordinary prudence, under similar circumstances, who desired to comply with the law. See Sanchez v. J. Barron Rice, Inc., 77 N.M. 717, 427 P.2d 240 (1967).

We therefore affirm the trial court’s finding that defendants’ violation of the statutes and ordinance constituted negligence for which they were liable.

2. Joint and Several Liability Versus Apportionment

Except to the extent modified by statute, NMSA 1978, Section 41-3A-1 (Cum.Supp.1988), which the parties agree does not apply to this case, joint and several liability among concurrent tortfeasors no longer exists in New Mexico. Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982). See also Wilson v. Galt, 100 N.M. 227, 668 P.2d 1104 (Ct.App.1983). Each concurrent tortfeasor is liable only for his apportioned fault or negligence. Bartlett v. New Mexico Welding Supply, Inc. The appellate courts have not heretofore considered whether the relationship between concurrent tortfeasors and the manner in which they transact their business that gives rise to the damages inflicted makes any difference. The trial court determined it did in this case.

(a) Joint Venture

The trial court found that a joint venture existed between defendants “regarding the care, maintenance and control of the fenced enclousre [sic] holding the two horses.” Because a joint venture is a partnership for a single transaction, Hansler v. Bass, 106 N.M. 382, 743 P.2d 1031 (Ct.App.1987), and partners are jointly and severally liable for the obligations of the partnership, NMSA 1978, Section 54-1-15 (Repl.Pamp.1988), the trial court found Edgar and Roland jointly and severally liable for the full amount of plaintiffs damages. See Boise City Farmers Coop. v. Layton, 83 N.M. 248, 490 P.2d 965 (1971).

Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (Ct.App.1978), holds,

“As a general rule, in order to constitute a joint adventure there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained.”

92 N.M. at 421, 589 P.2d at 205 (quoting Underwood v. Holy Name of Jesus Hosp., 289 Ala. 216, 219, 266 So.2d 773, 776 (1972).

We agree with Edgar that proof of several of the elements was missing. In fact, the only evidence suggesting a joint venture was testimony that Edgar and Roland kept their respective horses on Robert’s property, and that they shared responsibility for feeding and watering the horses and for keeping them from running loose. They usually performed these chores several times a day and usually did it together. There was also evidence of mutual exclusive control over the responsibilities for restraining the horses.

Lacking, however, is any proof of a joint proprietary interest, a right to share in the profits, and a duty to share in any losses. In fact, the evidence indicates Edgar maintained several horses on the property; Roland had only one. The evidence is more indicative of an arrangement of convenience.

A joint venture is never presumed and the burden to establish it remains with the party who alleges or relies on it. Dean Vincent, Inc. v. Russell’s Realty, Inc., 268 Or. 456, 521 P.2d 334 (1974) (In Banc). Here plaintiff did not plead a joint venture. In fact, the subject did not come up until the trial court raised it at the conclusion of the proof.

Assuming, without deciding, that a joint venture between two or more concurrent tortfeasors would make them jointly and severally liable, the evidence here did not make out a joint venture. We defer that issue to a case in which joint venture has been established.

(b) Apportionment

Defendants’ brief-in-chief, relying on Bartlett, argues that the trial court erred in not apportioning fault between them, suggesting, “The evidence in this case and the only permissible inference is that Mr. Hohenberg was the more negligent party.”

We agree that the trial court must apportion fault in this case, and remand for that purpose. Because of the rather unusual circumstances, we offer guidance to the trial court.

The question presented is, How does the trier of fact apportion fault or negligence when there is no direct evidence as to which concurrent tortfeasor caused the harm? Ancillary to that question is the further question of which party bears the burden of proving apportionment under these circumstances.

Normally, of course, the plaintiff bears the burden of proving that a defendant’s negligence caused his injury. In cases such as this, however, we hold that, where defendants are independent but concurrent tortfeasors and thus each liable for the damage caused by him alone, but the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of redress. Rather, the wrongdoers should be left to work out between themselves any apportionment. Under the circumstances present in this case, the burden shifts to each defendant to absolve himself, if he can, thereby relieving the wronged party of the duty of apportioning fault as between defendants.

Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) (In Bank) provides guidance. In that case, the plaintiff sued two members of a hunting party for injuries to the plaintiff’s right eye and face caused by birdshot discharged from a shotgun. The plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a shotgun loaded with shells containing the same size shot. In the course of hunting, the plaintiff proceeded up a hill, thus placing the defendants at the points of a triangle. One of the defendants flushed a quail, whereupon both defendants shot at the quail, shooting in the plaintiff’s direction. One shot struck the plaintiff in his eye and another in his upper lip. The trial court found that, as a direct result of the shooting by the defendants, the shots struck the plaintiff, that the defendants were negligent in so shooting, and that the plaintiff was not contributorily negligent.

On appeal by both defendants, the California Supreme Court held that, under these facts, the burden of proving which defendant’s shot struck the plaintiff shifted to the defendants. The court went on to hold that, if defendants are independent tortfeasors each liable for the damage caused by him alone, and the matter of apportionment is incapable of proof, the injured wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. See also Bowman v. Redding & Co., 449 F.2d 956 (D.C.Cir.1971) (applying Summers rule).

The Restatement (Second) of Torts Section 433B (1965) embodies the rule of Summers. Subsections (2) and (3) of that section provide:

(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

(3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

Comment (f) explains the purpose of these sections, which provide an exception to the general rule that a plaintiff bears the burden of proving that a wrongdoer has caused his or her harm.

[T]he reason for the exception^] is the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.

We adopt this rule in New Mexico as the fairest and most logical way to determine the amount of fault of two or more tortfeasors in the unusual circumstances of cases such as this one, where plaintiff can prove defendants were negligent, but cannot prove which defendant’s negligence caused the injury, or which defendant was more at fault.

On remand the trial court should consider apportionment between defendants, based upon this burden which rests with them, not plaintiff. While this task is difficult, we do not believe it impossible. As we have previously discussed, there is evidence from which the court could infer that Edgar was the last one to leave the gate before the horses escaped, and that Roland remained on the property but was somewhere else at the time Edgar left. If the trial court infers that Roland did not leave before the accident, then his negligence would be for not observing the improperly secured gate or the fact that the horses had escaped. We express no opinion as to how such apportionment should be made based on these and other relevant facts before the court.

CONCLUSION

We affirm the trial court’s judgment as to liability and damages, except for the finding of a joint venture and the conclusion as to joint and several liability based thereon. We remand solely for the purpose of apportioning fault between the two defendants. Defendants shall pay the cost of appeal.

IT IS SO ORDERED.

DURHAM, Justice:

This case comes to us pursuant to rule 41 of the Utah Rules of Appellate Procedure as a question certified from the United States District Court for the District of Utah. Two issues have been accepted on certification:

1. Under the Utah Comparative Fault Act,1 Utah Code Annot. § 78-27-38, et seq., can a jury apportion the fault of the plaintiffs employers that caused or contributed to the accident although said employers are immune from suit under Utah Workers’ Compensation Act, Utah Code Ann. § 35-1-60, et seq.

2. Under the Utah Comparative Fault Act, Utah Code Ann. § 78-27-38, et seq., can a jury apportion the fault of an individual or entity that has been dismissed from the litigation but against whom it is claimed that they have caused or contributed to the accident.2

We hold that the purpose and intent of the Utah Liability Reform Act require that a jury account for the relative proportion of fault of a plaintiff’s employer that may have caused or contributed to an accident, even though the employer is immune from suit. -Apportionment of fault does not of itself subject the employer to civil liability. Rather, the apportionment process merely ensures that no defendant is held liable to any claimant for an amount of damages in excess of the percentage of fault attributable to that defendant.

We also hold that an individual or entity dismissed from a case pursuant to an adjudication on the merits of the liability issue may not be included in the apportionment.3 When a defendant is dismissed due to a determination of lack of fault as a matter of law, the defendant’s exclusion from apportionment does not subject the remaining defendants to liability for damages in excess of their proportionate fault.

The following facts are taken from the federal district court’s certification order. In October 1986, plaintiff Kenneth Sullivan lost his left arm and left leg in an accident on the railroad tracks at the Freeport Center in Clearfield, Utah. At the time of his injury, Sullivan was assigned to unload grain from rail cars into warehouses. He was employed by Scoular Grain Company, Freeport Center Associates, and Scoular Grain Company of Utah (“the Scoular parties”).

Sullivan filed this action against the Scoular parties, Union Pacific Railroad Company, Denver & Rio Grande Western Railroad Company, Oregon Short Line Railroad Company, Utah Power & Light Company, Trackmobile, Inc., and G.W. Van Keppel Company. In 1989, the federal district court found the Scoular parties immune from plaintiff’s claim under the exclusive remedy provision of Utah’s Workers’ Compensation Law and dismissed them from the action. That court also found that defendant Denver & Rio Grande Western Railroad had no legal duty to Sullivan *879and dismissed it from the lawsuit. The remaining defendants in the case are Utah Power & Light, Trackmobile, G.W. Van Keppel, Union Pacific Railroad, and Oregon Short Line Railroad. A motion to dismiss Utah Power & Light for lack of jurisdiction is pending at this time.

Defendant Trackmobile moved to have the jury apportion and compare the fault of all the originally named defendants, whether dismissed or present at trial. Plaintiff opposed this motion, claiming that only the fault of parties who are defendants at trial may be compared.

I. IMMUNE EMPLOYERS

A. Statutory Interpretation

The court’s principal duty in interpreting statutes is to determine legislative intent, and the best evidence of legislative intent is the plain language of the statute. Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984).

Plaintiff argues that his former employers must be excluded from the apportionment process because they are not “defendants” under the Liability Reform Act’s definition. Section 68-3-11 of the Utah Code states that “words and phrases ... [which] are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition.” Under section 78-27-39 of the Liability Reform Act, a jury may be instructed “to find separate special verdicts determining the total amount of damages sustained and the percentage or proportion of fault attributable to each person seeking recovery and to •each defendant.” Section 78-27-37(1) defines “defendant” as “any person not immune from suit who is claimed to be liable because of fault to any person seeking recovery.” (Emphasis added.) Therefore, plaintiff argues, because the district court found the Scoular parties to be “immune from suit” under the exclusive remedy provision of Utah Workers’ Compensation Act, Utah Code Ann. § 35-1-60, they are not defendants and are excluded from apportionment under the plain language of the Act.

Excluding plaintiff’s employers from the apportionment process, however, would directly conflict with the language of other sections of the Act which require that no defendant be held liable' for damages in excess of its proportion of fault.4 The relevant portions of sections 78-27-38 and -40 read as follows:

78-27-38. Comparative negligence. The fault of a person seeking recovery shall not alone bar recovery by that person. He may recover from any defendant or group of defendants whose fault exceeds his own. However, no defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant.

78-27-40. Amount of liability limited to proportion of fault—No contribution. Subject to Section 78-27-38, the maximum amount for which a defendant may be liable to any person seeking recovery is that percentage or proportion of the damages equivalent to the percentage or proportion of fault attributed to that defendant. No defendant is entitled to contribution from any other person.

(Emphasis added.) If the Scoular parties, who allegedly contributed to the accident, are not included on the special verdict form, the remaining defendants will be potentially liable to plaintiff for an amount in excess of their proportion of fault. For example, if the Scoular parties were 90% at fault and the defendants remaining in the action were 10% at fault, the remaining defendants would be apportioned 100% of any damages awarded even though they were only 10% at fault.5 Such a result would violate the plain language of sections 78-27-38 and -40.

*880Thus, we are faced with two arguably contradictory statutes within the same article. Section 78-27-37 defines “defendant” in a way that appears to preclude the inclusion of an employer from apportionment. But excluding employers from apportionment would violate the mandate of section 78-27-40 that no defendant be held liable for damages greater than its proportion of fault. This conflict creates an ambiguity that requires the court to make a policy inference as to the overall purpose and intent of the Act.

B. Legislative History

“When interpreting an ambiguous statute, we first try to discover the underlying intent of the legislature, guided by the purpose of the statute as a whole and the legislative history.” Hansen v. Salt Lake County, 794 P.2d 838, 841 (Utah 1990) (citations omitted). We then try to harmonize ambiguous provisions accordingly. Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah 1991).

In the 1986 session of the Utah Legislature, Substitute Senate Bill No. 64 proposed that a jury may determine the “total amount of damages sustained and a percentage or proportion of fault attributable to each person seeking recovery, to each defendant, and to each other person whose fault contributed to the injury or damages.” (Emphasis added.) Before being enacted, the bill was amended by deleting the part emphasized above and inserting the word “and” before “to each defendant.” The result is codified at Utah Code Ann. § 78-27-39:

The trial court may, and when requested by any party shall, direct the jury, if any, to find separate special verdicts determining the total amount of damages sustained and the percentage or proportion of fault attributable to each person seeking recovery and to each defendant.

Sullivan argues that this amendment shows that the legislature did not intend to include nonparties in the apportionment process.

Trackmobile counters that the reason for the amendment is not clear and argues that, by contrast, the intent of the comparative negligence statute to limit a defendant’s liability to his or her proportion of fault is clear. That purpose is to ensure that “no defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant.” Utah Code Ann. § 78-27-38.

“The primary rule of statutory interpretation is to give effect to the intent of the legislature in light of the purpose the statute was meant to achieve.” Reeves v. Gentile, 813 P.2d 111, 115 (Utah 1991) (footnote omitted). Thus, failing to include immune employers in the apportionment violates the main purpose of the Act by improperly subjecting the remaining defendants to liability in excess of their proportion of fault.

Other portions of the Act’s history support this conclusion. First, during a floor debate prior to the adoption of the bill, one senator observed that “it is the basic fairness concept we’re driving at. The defendant ought to be on the hook only for its own percentage of damages, but ought not be the guarantor for everyone else’s damages.” Floor Debate, Utah Senate, 46th Leg. 1986, General Sess., Senate Day 31, Records No. 63 (Feb. 12, 1986). Second, each preliminary draft of Senate Bill 64 states in the title that the purpose of the Act was, among other things, “abolishing joint and several liability.” If the jury is prevented in this case from considering the relative fault of the Scoular parties in the apportionment process, Trackmobile and the other defendants will be held liable in the event of a verdict for plaintiff, not only for their own proportionate share of fault, but also for the proportionate share of fault attributable to the Scoular parties. Thus, one of the major evils of joint and several liability would result, and the stated purpose of the legislature in abolishing it would be frustrated.

This interpretation of the Liability Reform Act is in harmony with the Workers’ Compensation Act; “when a construction of an act will bring it into serious conflict with another act,” we have a duty to “construe the acts to be in harmony and to *881avoid conflicts.” Jerz v. Salt Lake County, 822 P.2d 770, 773 (Utah 1991) (citations omitted). The Workers’ Compensation Act provides an injured employee’s “exclusive remedy” against an employer in place of any other “civil liability” and provides that no “action at law” may be maintained against an employer based on any injury to an employee. Utah Code Ann. § 35-1-60. In our view, this exclusive remedy does not bar the Scoular parties from the apportionment process because apportionment is not an action at law and would not impose any civil liability on the Scoular parties. Thus, the jury should consider acts or omissions by the Scoular parties in its liability deliberations.

Plaintiff’s concerns about procedural problems with apportionment are not persuasive. We believe that employers are not prejudiced by being included in the apportionment process for three reasons. First, employers have a financial interest in the outcome of the action. The Workers’ Compensation Act provides, “The person liable for compensation payments shall be reimbursed in full for all payments made [by the third-party defendant to the injured employee] less the proportionate share of costs and attorneys’ fees_” Id. § 35-1-62(2).

Second, the Workers’ Compensation Act expressly provides employers (or their insurance carriers) notice and a reasonable opportunity to appear in the action. The Utah Workers’ Compensation Act provides:

Before proceeding against the third party, the injured employee, or, in case of death, his heirs, shall give written notice of such intention to the carrier or other person obligated for the compensation payments, in order to give such person a reasonable opportunity to enter an appearance in the proceeding.

Utah Code Ann. § 35-1-62.

Third, the Utah Liability Reform Act also provides for a jury to apportion the fault of “person[s] seeking recovery.” Id. § 78-27-39. The Act defines “person seeking recovery” as “any person seeking damages or reimbursement on its own behalf, or on behalf of another for whom it is authorized to act as legal representative.” Id. § 78-27-37(3). Thus, due to the reimbursement provision of the Workers’ Compensation Act, employers (or their insurance carriers) may be legitimately viewed as persons seeking recovery under the Act.

Therefore, employers have a financial interest in the apportionment process. Because the legislature has expressly provided (1) that employers be given notice and an opportunity to appear and (2) that the jury may apportion the fault of persons seeking recovery, we believe that it is not procedurally unfair for a jury to apportion the fault of nonparty employers.

C. Other Jurisdictions

Other states have dealt with the issue of how to apportion fault in workers’ compensation third-party actions in a variety of ways. See Appendix for examples. Although these decisions involve somewhat different statutes, their reasoning may be helpful. For example, the California Court of Appeal recently ruled in a case substantially similar to the case at bar. Mills v. MMM Carpets, Inc., 1 Cal.App.4th 83, 1 Cal.Rptr.2d 813 (1991), review dismissed, 10 Cal.Rptr.2d 635, 833 P.2d 642 (1992). In Mills, a bank employee sued various parties for damages because she was injured when the heel of her shoe punctured a section of carpeting that had been laid over an uncovered utility hole. The employer’s insurer intervened, seeking indemnity for workers’ compensation benefits it had paid to the plaintiff on behalf of the employer. The defendants claimed that under California’s Fair Responsibility Act, the contribu-tive fault of the employer should be considered in determining the proportionate share of each defendant’s liability for noneconomic damages. California’s Fair Responsibility Act provides in relevant part:

In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages, allocated to that de*882fendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.

Cal.Civ.Code § 1431.2(a) (West Supp.1993) (emphasis added). The court, noting that the purpose of the Act was to abolish the inequity and injustice of joint and several liability, decided that excluding the plaintiff's employer from apportionment would “result [in] a form of joint liability which the statute is meant to avoid” and held that “the apportionment of liability ... must take into account the fault of all tortfea-sors, whether or not they are named as defendants, [or] subject to liability for damages.” 1 Cal.Rptr.2d at 814, 817. The court conceded that employers are “generally immune from tort liability” under California’s workers’ compensation law and noted in addition that the Fair Responsibility Act “is not intended, in any way, to alter the law of immunity.” Id., at 818. Nevertheless, creating a rule which it found consistent with both acts, the court explained that “the negligent employer’s fault in a case like this one is measured, not in order to impose tort liability on it, but to determine the comparative fault and commensurate liability of a defendant in the action.” Id.

We have applied similar reasoning in holding that Utah’s Liability Reform Act requires a jury to apportion the fault of a plaintiff’s employer even though the employer is immune from suit under Utah’s Workers’ Compensation Act.

D. Equitable Considerations

Any judicial or legislative decision concerning tort liability requires a balancing of competing interests and a policy decision as to which party should bear the risks of an immune or insolvent tort-feasor. Prior to 1986, under joint and several liability, a tort-feasor bore the risk of paying not only his or her share of the plaintiff’s damages, but also the shares of other tort-feasors who were impecunious or immune from suit. The 1986 Utah Liability Reform Act shifted the risks caused by impecunious or immune tort-feasors to the plaintiffs by abolishing joint and several liability and contribution among tort-feasors.

Plaintiff correctly asserts that if his employer’s actions are included in apportionment, his recovery may be significantly reduced. Plaintiff’s recovery from nonem-ployer defendants would be reduced directly in proportion to the percentage of fault, if any, the jury attributes to the employer.

On the other hand, in Trackmobile’s view, fairness to the defendants requires that each defendant pay only its proportionate share of the plaintiff’s damages. If the Scoular parties are not included in apportionment, Trackmobile and the other defendants would be liable for damages in excess of their proportion of fault. “There is nothing inherently fair about a defendant who is[, for example,] 10% at fault paying 100% of the loss....” Brown v. Keill, 224 Kan. 195, 580 P.2d 867, 874 (1978).

General comparative negligence theory also supports the inclusion of nonparty employers in apportionment. For example, according to Heft and Heft:

It is accepted practice to include all tortfeasors in the apportionment question. This includes nonparties who may be unknown tortfeasors, phantom drivers, and persons alleged to be negligent but not liable in damages to the injured party such as in the third party cases arising in the workmen’s compensation area.

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The reason for such rules is that true apportionment cannot be achieved unless that apportionment includes all tortfea-sors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case.

Carroll R. Heft & C. James Heft, Comparative Negligence Manual, § 8.100, at 14 (John J. Palmer & Stephen M. Flanagan eds., rev. ed. 1992) (footnote omitted). Thus, it is accepted practice for the jury to apportion the comparative fault of all tort-*883feasors when comparative negligence is at issue.6

Plaintiff also protests the detrimental effect on his recovery created by the employer reimbursement provisions of the Workers’ Compensation Act. Section 35-1-62 provides for an employer or insurer to obtain reimbursement for any payments made to an injured employee. This lien is not reduced in any respect by the amount by which the employer’s act or omission contributed to the employee’s injuries. Thus, any judgment Sullivan wins against a party defendant will be reduced up to the amount the insurer in this case paid to Sullivan in workers’ compensation benefits.

Consequently, when a verdict is granted to the plaintiff in an amount equal to or greater than the employer’s workers’ compensation payments, the Act allows an at-fault employer to escape liability altogether at the expense of the injured employee.7 We agree with plaintiff that this result is inequitable, but the effect of the statutory language is clear.

However, “[wjhere statutory language is plain and unambiguous,” we will “not look beyond the same to divine legislative intent.” Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989). The language of section 35-1-62(2) is unambiguous on this point: “The person liable for compensation payments shall be reimbursed in full for all payments made [by a third party to an injured employee] less the proportionate share of costs and attorney’s fees provided for in Subsection (1).” Utah Code Ann. § 35-1-62(2) (emphasis added). We are not free “to assess the wisdom of a statutory scheme.” West Jordan v. Morrison, 656 P.2d 445, 446 (Utah 1982). Moreover, no challenge to the validity of the reimbursement provision of the Workers’ Compensation Act is before this court at this time. Thus, plaintiff’s remedy on this point is a legislative one.

II. DISMISSED NONEMPLOYER DEFENDANTS

The remaining nonemployer defendants in the case are Utah Power & Light, Track-mobile, G.W. Van Keppel, Union Pacific Railroad, and Oregon Short Line Railroad. As noted above, the district court found that Denver & Rio Grande Western Railroad (“D & RG”) had no legal duty to Sullivan and dismissed it from the lawsuit.

Trackmobile urges that all named defendants, including those dismissed from the proceeding, be included in apportionment. However, plaintiff argues that because the' trial court dismissed D & RG, it is not a defendant and the jury may not consider its actions or omissions in the apportionment process. Plaintiff again relies heavily on the definitions of the Liability Reform Act for support. The relevant definitions of the Act provide:

(1) “Defendant” means any person not immune from suit who is claimed to be liable because of fault to any person seeking recovery.

(2) “Fault” means any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages....

Utah Code Ann. § 78-27-37(1), (2) (1986) (emphasis added). Plaintiff asserts that the requirement that “fault” be “actionable” precludes the inclusion of D & RG in apportionment.

Plaintiff urges a definition of “actionable” fault that is too restrictive. An act *884or omission may be actionable even if the plaintiff cannot, as a practical matter, secure a judgment against a defendant. Black’s defines “actionable” as “[t]hat for which an action will lie, furnishing legal ground for an action.” Black’s Law Dictionary 29 (6th ed. 1990). A plaintiff may have legal grounds for a cause of action against a defendant, and the defendant may be dismissed due to, for example, the assertion of a successful affirmative defense. Thus, the Act’s definition of “fault” does not necessarily preclude the apportionment of fault of nonparties.

Nevertheless, we hold that D & RG, which was dismissed pursuant to an adjudication on the merits, may not be included in apportionment. D & RG was dismissed due to a lack of fault as a matter of law. Thus, D & RG’s exclusion will not subject remaining defendants to potential liability for damages in excess of their proportionate fault.

Trackmobile has also raised an equal protection argument under the state and federal constitutions. Because we have interpreted the statutes at issue to require that the jury apportion the fault of employers of plaintiffs in third-party workers’ compensation litigation, this issue need not be reached.

Based on the foregoing analysis, our answers to the questions certified from the federal court are as follows:

1. A jury may apportion the fault of employers under Utah Code Ann. § 78-27-38 to -43 notwithstanding their immunity under Utah Code Ann. § 35-1-60.

2. A jury may not apportion the fault of a party that has been dismissed from the lawsuit pursuant to an adjudication on the merits of the liability issue.

APPENDIX

Apportionment of Nonparty Fault in Negligence Actions in States Reported in the Pacific Reporter

States that have expressly adopted this practice by statute include Arizona, Ariz. Rev.Stat.Ann. § 12-2506.B (1991), Dietz v. General Elec. Co., 169 Ariz. 505, 821 P.2d 166, 171 (1991) (including immune employers); Colorado, Colo.Rev.Stat. § 13-21-111.5(3)(a) (1987), Williams v. White Mountain Constr. Co., 749 P.2d 423, 429 (Colo.1988) (same); Kansas, Kan.Stat.Ann. § 44-504(d) (1986 & Supp.1991), Brabander v. Western Co-op. Elec., 248 Kan. 914, 811 P.2d 1216, 1219 (1991) (same); New Mexico, N.M. Stat.Ann. § 41-3A-1.B (1989), Taylor v. Delgarno Transp., Inc., 100 N.M. 138, 667 P.2d 445, 448 (1983) (same), overruled on other grounds, Montoya v. Akal Sec., Inc., 114 N.M. 354, 838 P.2d 971 (1992); Washington, Wash.Rev.Code Ann. § 4.22.070(1) (1988), Clark v. Pacificorp, 118 Wash.2d 167, 822 P.2d 162, 165 (1991) (same).

In other states, courts have interpreted general comparative negligence statutes to require apportionment of nonparty fault. California, Cal.Civ.Code § 1431.2(a) (West Supp.1993), Mills v. MMM Carpets, Inc., 1 Cal.App.4th 83, 1 Cal.Rptr.2d 813, 814 (1991) (including immune employers), review dismissed, 10 Cal.Rptr.2d 635, 833 P.2d 642 (1992); Hawaii, Haw.Rev.Stat. § 663-31(b)(2) (1988), Espaniola v. Cawdrey Mars Joint Venture, 68 Haw. 171, 707 P.2d 365, 373 (1985) (same); Idaho, Idaho Code § 6-802 (1990), Pocatello Indus. Park v. Steel W. Inc., 101 Idaho 783, 621 P.2d 399, 403 & n. 4 (1980), Barringer v. State, 111 Idaho 794, 727 P.2d 1222, 1224 (1986) (same); Oklahoma, Okla.Stat.Ann. tit. 23, § 13 (1987), Bode v. Clark Equip. Co., 719 P.2d 824, 826-27 (Okla.1986) (same); Wyoming, Wyo.Stat. § 1-1-109 (1991), Burton v. Fisher Controls Co., 723 P.2d 1214, 1221 (Wyo.1986) (including settling tort-feasorS).

The following states retain joint and several liability but allow the consideration of nonparty negligence for the limited purpose of determining whether all or none of the total fault can be attributed to the nonparty. Alaska, Alaska Stat. § 09.17.080 (1991), Lake v. Construction Mach., Inc., 787 P.2d 1027, 1028, 1031 (Alaska 1990) (including immune employers); Mon*885tana, Mont.Code Ann. § 27-1-703(4) (1991) (expressly excluding immune employers).

In contrast, only two states flatly refuse to allow a jury to consider the fault of nonparties in apportionment. Nevada, Nev.Rev.Stat.Ann. § 41.141.2(b)(2) (1986), Warmbrodt v. Blanchard, 100 Nev. 703, 692 P.2d 1282, 1286 (1984); Oregon, Or. Rev.Stat. §§ 18.470, -.480 (1991), Mills v. Brown, 303 Or. 223, 735 P.2d 603, 605 (1987).

STEWART, Justice

(dissenting):

The majority opinion holds that an immune non-defendant should be included in the apportionment of fault to defendants under the Liability Reform Act. I submit that the majority, in direct defiance of the specific language of the Act and its legislative history, completely reverses the intended effect of the Act as to how fault should be apportioned when one of the parties whose negligence contributed to the plaintiffs injuries is immune from liability.

In 1973, the Utah Legislature adopted the Comparative Negligence Act, which abolished contributory negligence as an absolute bar to an action but left intact the doctrine of joint and several liability. 1973 Utah Laws ch. 209. The Liability Reform Act, adopted in 1986, carried forward several provisions from the Comparative Negligence Act but dispensed with joint and several liability. 1986 Utah Laws ch. 199. Under the Act, fault is to be apportioned to each party, with each party bearing liability for its apportioned fault. No party is liable for fault apportioned to another party. Utah Code Ann. § 78-27-40.

The central issue in this lawsuit is how the Legislature intended to apportion the fault of a person immune from liability (a non-party) who is one of multiple tort-fea-sors causing a plaintiffs injuries. The Legislature specifically addressed and resolved that issue. The Act expressly provides that fault shall not be allocated to a party immune from liability. Section 78-27-39 states:

The trial court may, and when requested by any party, shall, direct the jury, if any, to find separate special verdicts determining the total amount of damages sustained and the percentage or proportion of fault attributable to each person seeking recovery and to each defendant.

(Emphasis added.) Thus, fault is to be attributed only to “each person seeking recovery and to each defendant.” The Act then defines the word “defendant” to specifically exclude persons who are immune from liability. Section 78-27-37 states:

As used in Sections 78-27-37 through 78-27-43:

(1) “Defendant” means any person not immune from suit who is claimed to be liable because of fault to any person seeking recovery.

(Emphasis added.) This section makes clear that the term defendant does not include negligent persons who are immune from liability. In short, the Legislature contemplated the issue at hand and expressly provided that fault is to be allocated only among non-immune parties to a lawsuit, even though an immune person may be partly responsible for the plaintiff’s injuries.

Two other sections in the Act not only reinforce, but compel the same conclusion. Section 78-27-41 states that either a plaintiff or a defendant who is a party to the litigation

may join as parties any defendants who may have caused or contributed to the injury or damages for which recovery is sought, for the purpose of having determined their respective proportions of fault.

(Emphasis added.) In connection with that section, § 78-27-39 requires special verdicts, when requested, for determining the fault attributed to “each person seeking recovery and to each defendant.” Both the joinder and special verdict provisions are specifically designed to provide the necessary mechanism for attributing fault only to non-immune defendants (as defined by the Act) and to plaintiffs. Thus, immune persons may not be joined in an action, § 78-27-41, nor may fault be attributed to them, § 78-27-39. The majority’s self-de*886vised requirement that the fault of an immune party must be ascertained simply flouts these provisions.

The purpose of joinder is to determine the non-immune defendants’ “respective proportions of fault” § 78-27-41. The “fault” to be allocated is defined by § 78-27-37(2) as any “actionable breach of legal duty ... causing or contributing to injury or damages.” (Emphasis added.) Because an immune party’s negligence is not an “actionable breach of legal duty,” that negligence cannot be apportioned. In short, an immune party, such as plaintiffs employer in this action, has not engaged in an “actionable breach of legal duty” and therefore is not subject to the special verdict apportionment procedure under the statute.

The Legislature could not have been more explicit and consistent in providing exactly how and to whom fault should be allocated. Indeed, the Legislature expressly rejected the position the majority adopts. Senate Bill 64, which became the Act in issue, initially provided:

The trial court may, and when requested by any party shall, direct the jury, if any, to find separate jury verdicts determining the total amount of damage sustained and the percentage or proportion of fault attributable to each person seeking recovery, to each defendant, and to each other person whose fault contributed to the injury or damages.

(Emphasis added.) The Senate committee report shows that the italicized phrase was purposefully deleted. Left in, that phrase would have done exactly what the majority does today. The majority nevertheless dismisses this compelling piece of legislative history on the transparent ground that it is not clear why the language was deleted.

The Legislature consciously adopted a policy that excluded the negligence of non-immune persons from the fault apportionment process. Asserting that it would be unfair to make defendants bear the fault of an immune party, the majority simply sets aside the judgment of the Legislature as expressed in the explicit statutory language and imposes its own policy. What the majority fails to recognize is that the policy adopted by the Legislature divides the fault of an immune party among both plaintiffs and defendants. The policy adopted by the majority, on the other hand, loads that fault entirely onto a plaintiff.

The legislative policy is neither irrational nor inequitable. Practically speaking, a jury would naturally be inclined to allocate the fault of an immune person among both plaintiffs and defendants. If a plaintiff is 20% at fault, each of two named defendants is 30% at fault, and an immune person is 20% at fault, the Legislature could reasonably assume that a jury would allocate the immune person’s 20% fault among the plaintiff and the defendants, probably according to their respective percentages of “actionable fault.” Thus, there is no reason to assume, as the majority does, that the immune person’s fault will be attributed solely to defendants under Utah's comparative negligence scheme.

The majority position will necessarily result in the entire amount of an immune person’s fault being deducted from a plaintiff's damages. The blatant inequity of that position is especially acute when an immune employer’s insurance company claims all or part of a plaintiff’s recovery by way of subrogation under the Workers’ Compensation Act.

The majority rejects clear and consistent statutory language and its compelling legislative history with the extraordinary argument that “failing to include immune employers in the apportionment violates the main purpose of the Act by improperly subjecting the remaining defendants to liability in excess of their proportion of fault.” I see nothing improper in the legislative scheme. The fact is that it is for the Legislature—not this Court—to decide how to deal with the fault of an immune party in a multi-defendant comparative negligence case.

While it is true that the Act abolishes joint and several liability, that was not its sole purpose. The Act also provides the manner in which fault should be allocated in comparative negligence cases and how the universe of actionable fault should be apportioned when one party is immune. *887As noted, even a plaintiff may be held responsible for a part of an immune person’s negligence under the provisions of the Act. Defining the universe of fault, as the Legislature has done, is not, at bottom, an issue of joint and several liability. Rather, the process turns on the concepts underlying proximate cause.

The existence of fault has always depended upon whether the negligence of a party had a substantial causative connection to a plaintiff’s injuries. Because the law requires only a substantial causative connection, a defendant or defendants may be held legally responsible for causing an injury, even though there are some actual causes for which the defendant or defendants are not responsible. But if a defendant’s negligence is not a substantial cause of the plaintiff’s injuries, then no liability may attach to that defendant. For this reason, proximate cause is defined in terms of substantial causative factors. That point is critical in the policy the Legislature adopted. If an immune person’s negligence is great enough, a jury would be obliged to find that the named non-immune defendants did not proximately cause the injury, even if they were negligent, and thus deny the plaintiff any recovery. But if the immune person’s negligence is not that great, a jury will have to determine the relative proportion of actionable fault attributable to the plaintiffs and the named defendants. In this process, the universe of fault to which the plaintiff and the defendants contributed is the universe of actionable fault.

The damage the majority does to the legislative scheme and to a plaintiff’s rights is exacerbated by the provision in the Workers’ Compensation Act that gives an employer (whose fault may have contributed to a plaintiff’s injuries) a lien against the plaintiff’s damage recovery for benefits paid out of workers’ compensation. Thus, not only is the plaintiff made responsible for the employer’s proportionate share of fault, but he must also reimburse his employer out of his diminished recovery for any workers’ compensation benefits received. This is not only unjust and inequitable, but might well be unconstitutional.