6. Negligence (Multiple Defendants)

Question 1

What are Defendants’ liabilities if they are (jointly and) severally liable to each other?

Answer 1

Ds acting separately (several liability)
- Divisible injuries: Each D is severally (NOT jointly) liable for OWN identifiable portion

Ds acting separately (joint + several liability)
- Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Ds acting by agreement (joint + several liability)
- Divisible/Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Comparative negligence rules adopted

Question 2

What is joint and several liability?

Answer 2

2 or more negligent tortfeasors combine to proximately cause P’s injury

Question 3

What exceptions prevent joint and several liability?

Answer 3

Statutory limitations (many states)

• If P is more at fault than D => D is only responsible for his own liability portion
• Non-economic damages are NOT recoverable

Satisfaction

• P can recover from all tortfeasors until satisfaction
• P recovers ENTIRE damages from one tortfeasor (satisfaction)
• P can NOT recover more damages from other tortfeasors

Release

• P’s claim is surrendered vs one tortfeasor (release)
• If there is express agreement for discharge => Discharges other tortfeasors => Their liability is reduced by either; (a) agreed amount; or (b) paid consideration (whichever is greater)
• If there is NO express agreement for discharge => NO discharge

Question 4

How may contributions be imposed?

Answer 4

Comparative contribution (most states)

• Contribution is imposed in proportion to other Ds’ relative fault
• D can reclaim excess payment from other Ds

Equal shares (few states)
- Contribution is imposed equally among other Ds (relative fault NOT relevant)

Question 5

What exceptions prevent contribution recovery?

Answer 5

Applicable defence for tortfeasor (e.g. intra-family tort immunity) => Contribution NOT imposed on tortfeasor

Intentional tortfeasor
- If D1 committed intentional tort => D1 can NOT recover contribution from other Ds

Question 6

What is the difference between contribution and indemnity?

Answer 6

Contribution
- Apportionment of liability among tortfeasors

Indemnity
- Shift entire loss to one tortfeasor from other

Question 7

What is the procedure for indemnification?

Answer 7

1) Non-paying Tortfeasor shifts ENTIRE loss to Paying Tortfeasor
2) Paying tortfeasor pays ENTIRE loss to Plaintiff

3) Paying tortfeasor can recover ENTIRE loss (be indemnified by) Non-paying Tortfeasor
- Relieves Paying Tortfeasor

Question 8

What are examples of indemnification?

Answer 8

By agreement (contract)

Vicarious liability

• Employer for Employee’s torts
• Landowner for Independent Contractor’s torts

Strict product liability
- Supplier for Manufacturer’s defects

Degree of fault (Party (least at fault) for Party (most at fault))

• Retailer (who did NOT discover defect) for Manufacturer’s defects
• Secondary duty party for Primary duty party

Intentional vs Negligent

• Non paying tortfeasor committed intentional tort
• Paying tortfeasor committed negligent tort