Apportioning Fault against Joint Tortfeasors

Question 1

Joint and Several Liability

Answer 1

Either of two persons whose concurrent negligence contributed to cause plaintiff’s injury and damage may be liable for the entire amount of the damage caused by them.

Question 2

Failure to perform a common duty to the plaintiff

Answer 2

liability of two parties based on relationship to each other (liability of employer for act of employee)

Question 2

The defendant’s must be acting jointly, meaning…

Answer 2

They failed to perform a common duty to the plaintiff, or they acted independently to cause indivisible harm.

Question 3

Acted independently to cause indivisible harm

Answer 3

negligent conduct of more than one actor combines to produce injury to one plt, such as car crash involving two defendants who separately hit and injure plt.

Question 4

What are the two thoughts regarding comparative negligence eliminating joint and several liability

Answer 4

Coney: no, but plt’s damages are reduced by percentage of fault attributable to plt.

Bartlett: yes, joint tortfeasor is not liable for entirety of plt’s damages, only damages attributable to one defendant.

Question 5

Contributory negligence

Answer 5

plt can’t recover if at all negligent (1%)

Question 6

Comparative negligence

Answer 6

compare negligence of co-defendants and plaintiff, and dft is only responsible for damages representing part of injury that percentage of fault allocates to that dft.

Question 7

Contribution

Answer 7

joint tortfeasor paying more than their share of plt’s damages may recover from the other joint tortfeasor/s for excess paid in a judgment or settlement.

Not permitted if the jurisdiction eliminated joint and several liability

Question 8

How can a dft seek contribution from a joint tortfeasor?

Answer 8

Filing a cross-claim in the same action, if joint tortfeasor has been named as dft by plt;

Implead the joint tortfeasor as third-party defendant into the pending action; or

Bring a separate action for contribution against the joint tortfeasor.

Question 9

Majority Rule regarding joinder

Answer 9

one tortfeasor may settle out of court with the injured party and then obtain contribution from joint tortfeasor but must prove:

(1) that the other party is a joint tortfeasor and;

(2) that settlement was reasonable.

Question 10

Indemnity

Answer 10

Shift entire cost of judgment or settlement from a tortfeasor whose liability to the plaintiff was not based on its own wrongful conduct, but imposed on it by law because of its relationship with the tortfeasor whose wrongful conduct caused the injury.

ex. allocating loss between negligent manufacturer and negligent installer