Absent & Immune Defendants Flashcards
Many states now allow the conduct of absent, insolvent, or immune tortfeasors to be considered along with named parties. Result may be a reduction in the amount P can recover
Orphan Shares
By statute, a party who is liable may be responsible for an equitable reallocation of orphan shares, including P.
Reallocation of Orphan Shares
A cause of action or a cross-claim for __________ permits a D to recover excess paid under J & S from other Ds who are liable to P
contribution
Most states adopt a __________ __________ formula as opposed to an “equal share formula regardless of fault.”
comparative contribution
A D who is not liable to P even if at fault cannot be sued in __________, e.g., an immune defendant.
contribution
Where D is entitled to recover the entire amount it may have paid P from another D (not just excess paid)
By contract; or
By operation of law; or
Under strict liability for a defective product; or
Where substantial difference in degree of fault; or
there is an active-passive relationship
Indemnification
A surrender of the right to sue or to continue to sue a party.
Does not discharge other Ds unless terms of settlement specifically discharge other Ds
Release
In a J&S liability jurisdiction, either settlement reduces amount recoverable from other Ds by settlement amount OR extinguishes the proportionate share of the settling party in its entirety so that P bears burden of bad settlement
Settlement
A settlement in good faith generally operates as a discharge for contribution by any other tortfeasor
Settlement/Contribution
Once P has recovered the full amount of its damages from one or more defendants, either by settlement or by payment
P is required to file a Satisfaction of Judgment with the court
P cannot recover any more from any other D.
A D who has paid the judgment still may have a right to contribution/ indemnification from other Ds
Satisfaction of Judgment
Generally the defense of immunity only applies to _______ _______ and not to property damage
personal injury
Slight majority have abolished immunity altogether, I.e., children may sue parents and visa versa
Others have abolished where intentional torts or in automobile cases up to limit of policy.
Others provide immunity where matters of broad discretion such as discipline, supervision, care of child
Parent-Child Immunity
Historically, government entities and government officials could not be sued without their consent.
Today, laws permit all levels of government to be sued for some categories of activities.
Sovereign Immunity
Under the Federal Tort Claims Act (FTCA), federal government has waived immunity for tortious conduct at the operational, but has not waived immunity where:
Intentional torts committed by employees
Injuries suffered by military personnel on active duty; and
Injuries resulting from exercise of a discretionary function (planning or legislative, executive, administrative, or judicial decision making).
Federal Immunity
Even where permitted to sue, must sue in federal court, no right to a jury trial, may not recover attorney’s fees or punitive damages.
Federal Immunity
