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XIV. Allocation of Fault/Comparative Negligence

Alaska is a pure comparative fault state and allows the apportionment of fault to plaintiffs and all other parties to the action in warranty and tort-based actions. AS 09.17.060, .080; .900. A defendant's share of financial responsibility for the judgment is reduced according to the percentage of fault apportioned to the other parties. Id. Fault is broadly defined to include negligent, reckless or intentional misconduct, breach of warranty, misuse of a product, unreasonable failure to avoid an injury, or failure to mitigate damages. AS 09.17.900.

Prior to the Tort Reform Act of 1997, a defendant who wished to allocate fault to a non-party was required to join the party to the action. Benner v. Wichman, 874 P.2d 949 (Alaska 1994) (fault may not be allocated to individuals who may have been at fault, but who were not properly joined as parties).

Under the 1997 Tort Reform Act, it is no longer necessary for a defendant to join a party in order to allocate fault in all situations. Fault may now be apportioned to non-parties if the parties did not have "sufficient opportunity to join" the absent party. The statute holds there is not "sufficient opportunity to join" if the party is outside the jurisdiction of the court, is not reasonably locatable, or where joinder is precluded by law. Where a party to an action has sufficient opportunity to join a party, but chooses not to do so, fault still cannot be allocated to the absent party. AS 09.17.080.