liability of the Ds and damages

Question 1

What are the three types of factual situations in which joint and several liability is usually imposed?

Answer 1

1. The tortfeasors acted in concert
2. Ds fail to perform a common duty with P
3. Ds act independently to cause an indivisible harm

Question 2

What is permissive joinder?

Answer 2

P can sue multiple Ds if there is an action against both of them and there is a question of law or fact common to the Ds, but you do not HAVE to sue all of them

Question 3

What is the level of liability that a defendant is responsible for in a joint and several liability?

Answer 3

full harm

one person may be responsible for all parts

Question 4

Does comparative fault eliminate liability for full harm in joint and several liability?

Answer 4

no- in joint and several liability each tortfeasor is potentially responsible for full harm

Question 5

What is a defendant liable for in several liability?

Answer 5

a D is only liable for their percentage of harm caused, not for the full harm

Question 6

Under Satisfaction and Release, what is Satisfaction?

Answer 6

Satisfaction results in receipt of full compensation of an injury and extinguishes the claim against all potential tortfeasors.

Question 7

Under Satisfaction and Release, what

Answer 7

Release is a surrender of the P’s claim against only one or more tortfeasors:

Question 8

Can a P seek multiple damage payments?

Answer 8

No. if they have partial recovery from one fo the Ds they can sue the other D for the rest, but they cannot make more recovery $ than the recovery request (can’t double dip!)

Question 9

Whats this Mary Carter bullshit?

Answer 9

In a Mary Carter agreement, a D in a multiple D situation will remain in litigation despite having already settled outside of court… this helps strategically broker risk issues. Its also extremely douchy. Unless the other D they are against is a jerk. theres your answer. write it just like this.

Question 10

In liability issues, what is contribution?

Answer 10

Contribution means both parties are negligent in some way

Question 11

Can a tortfeasor file a separate action for contribution?

Answer 11

yes. usually its part of a 3rd party complaint. This is seen as a defense

Question 12

What is immunity?

Answer 12

Immunity is the legal absence of a claim

Question 13

Can a spouse be legally sued?

Answer 13

No, because of spousal immunity

Question 14

What is indemnity?

Answer 14

Indemnity means that only one party is liabile and it is usually not the person sitting at the defense table (i.e. a contractor issues)

Question 15

In the cases of successive related tortfeasors, is the first tortfeasor liable for consequent injuries?

Answer 15

Yes.

Question 16

In the case of successive unrelated tortfeasors, is the latter tortfeasor liable for the entire injury?

Answer 16

yes, when damages could not be apportioned. The key distinciton here is foreseeability- the doctor could have hurt someone after they were in an accident, but the accident causer could not have possibly known the doctor could later injure them.

Question 17

Will a court, when reasonable means of apportioning damages is evident after independent concurrent acts cause distinct and separate injuries, apply joint and several liability?

Answer 17

no. however, if the triers of fact conclude that they cannot reasonably make the divistion of liability between the tortfeasors, depending on jurisdiction, they may hold the tortfeasors joint and severally liable.

Question 18

What are the two means of finding the Ds joint and severally liable?

Answer 18

1. Burden Shifting and 2. Indivisible Injury

Question 19

What is burden shifting (under J and S liability)?

Answer 19

where the burden of proof is on the Ds to show factual basis for apportionment, with the result that the apportionment is unavailable as a practical matter

Question 20

What is indivisible injury, in terms of J and S liability?

Answer 20

injury that is not apportionable as a matter of law (something like a stream polluted as result of several factories)

Question 21

What are divisible injuries with regards to J and S liability?

Answer 21

That which can be decided to which degree each tortfeasor affected the total injuries (can be easily split)

Question 22

Who apportions damages?

Answer 22

The jury