Apportionment Flashcards
Causal Apportionment
Plaintiff has separate injuries and each defendant is liable for the harm she caused
Fault Apportionment
Plaintiff has an indivisible injury and each defendant is liable for the percentage of harm his conduct caused
Joint and Several Liability
Each defendant is liable for 100% of the harm. If one pays 100%, he can go after the other defendants to get them to pay him for the percentage of harm they caused
Several Liability
Each defendant is liable for the percentage of harm they cause. If the plaintiff cannot collect damages from one defendant, the others are not responsible to make up the difference.
Limits on Joint and Several Liability
Some states allow joint and several liability for economic harms. Others only allow it when the defendant’s percentage of responsibility is above a certain threshold. That is, if A is responsible for 60% and Be for 40%, A is jointly and severally liable for B’s damages, but B is not jointly and severally liable for A’s damages. Some jurisdictions allow for reallocation, meaning if one defendant can’t pay, his percentage is reallocated to the other parties at fault who must pay his share.
Varied Rules in Restatement (Third)
- Joint and several liability
- Several liability
- Joint and several liability with reallocation
- Joint and several liability with a threshold percentage
- Joint and several liability based on the type of damages
Important Question in Joint and Several Jurisdictions
How joint liabilities are divided between multiple tortfeasors through contribution and indemnity
Important Issues in Several Liability Jurisdictions
- Which type of conduct and which types of actors can be a part of the apportionment percentages
- On what basis percentages apportionments are made and
- In what circumstances exceptions to the several liability rules are called for
Comparative Responsibility
When courts refer to comparative responsibility, it is usually because the comparison is between at least one other form of actionable conduct besides negligence.
Comparative Fault
This might refer to comparisons between different types of actionable conduct, or it might not
Comparative Negligence
This is most likely comparing different kinds of negligence
Apportionment with Joint and Several Liability
Hill v. Rhinehart 2015
Joint and several liability cannot impose liability on a defendant who is not otherwise liable. Plaintiff lost three limbs because he was given medication he wasn’t supposed have. He sued the hospital and four doctors. Two of the doctors weren’t liable and so could not be jointly and severally liable.
Traditional Contexts for Joint and Several Liability
Concerted Action
Joint and several liability applies when two or more people commit a single tort together
Traditional Contexts for Joint and Several Liability
Indivisible Injury
Joint and several liability applies when two or more people individually contribute to an indivisible injury
Traditional Contexts for Joint and Several Liability
One Person Creates a Risk of Harm by Another
Joint and several liability applies when one person’s negligence causes a harm to the plaintiff and creates a risk of further harm by reason of another person’s negligence. For example, A knocks someone out and B runs over the person’s leg. B is severally liable for the leg, but A is jointly liable for both harms
Traditional Contexts for Joint and Several Liability
A Defendant’s Vicarious Liability
Joint and several liability applies when one party is vicariously liable for another’s tort.
Traditional Forms of Settlement with One of Several Tortfeasors
A Plaintiff’s Claim is Fully Satisfied
If the plaintiff sues one tortfeasor and recovers the full amount if his injuries, he can’t go after the other tortfeasors.
Traditional Forms of Settlement with One of Several Tortfeasors
Releases Under Common Law
If a plaintiff releases one tortfeasor from liability, all other tortfeasors are also released.
Traditional Forms of Settlement with One of Several Tortfeasors
Covenants Not to Sue
If a plaintiff settles with one tortfeasor and then signs a contract not to sue him, she can then go after the other tortfeasor for the rest of her damages
Common Law Limit on Contribution
Common law is opposed to contribution and many states will deny it to intentional tortfeasors
Common Liability Rule for Contribution
The person claiming contribution must show the other defendant is liable to the plaintiff otherwise he cannot collect.
Payment in Settlement Rule for Contribution
In some states, a tortfeasor can only get contribution from others if he paid plaintiff as a result of a final judgment, not a settlement. Most states have abandoned this rule and allow contributions after settlements.
Traditional Amount of Contribution (Pro Rata Share Rule)
Each tortfeasor pays for his share of an indivisible injury.
Indemnity
Sometimes one tortfeasor may be technically liable to the plaintiff but not at fault. If that person pays the plaintiff, he may be entitled to get the entire amount from the other tortfeasor
Relative Fault for Joint and Several Liability
Some statutes still allow joint and several liability if the plaintiff’s fault is small and the defendants’ fault is great.
Total Abolishment of Joint and Several Liability
Some statutes abolish joint and several liability all together, with exceptions for hazardous wastes and pollution.
Comparative Indemnity
Safeway Stores, Inc. v. Nest-Kart 1978
Strictly liable defendants should be entitled to apportionment against negligent defendants. A cart broke and hurt Plaintiff. The jury found the store 80% responsible and the manufacturer 20% responsibly but the court ordered each defendant to pay half
Factors for Comparative Responsibility
The nature of each person’s risk-creating conduct includes such things as
- How unreasonable the conduct was under the circumstances
- The extent to which the conduct failed to meet the applicable legal standards
- The circumstances surrounding the conduct
- Each person’s abilities and disabilities and
- Each person’s awareness, intent, or indifference with respect to the risks.
Restatement (Third)
Comparing Different Types of Torts
Board of County Commissioners of Teton County v. Basset 2000
A negligent defendant cannot be held strictly liable for an intentional tort his negligence failed to prevent under jurisdictions that adopt comparative fault and reject joint and several liability. Instead, the jury must evaluate the responsibility of all tortfeasors whose fault contributed to the injury. Plaintiff suffered injuries when a criminal ran into him while going through a roadblock. Defendants had the opportunity to warn plaintiff of the dangerous situation but did not.
Comparing Different Types of Torts
Many courts agree that the negligence of one defendant can be compared with the intentional or willful wrongdoing of another.
Plaintiff-Defendant Comparisons
Courts rarely call for apportionment between a negligent plaintiff and the intentional tort of a defendant.
Three Types of Plaintiff-Defendant Comparisons
Landry v. Bellanger 2003
- The plaintiff who negligently provokes an intentional tort will recover fully from the defendant.
- The plaintiff who commits an intentional tort can recover from an intentional tortfeasor defendant with damages reduced with comparative fault
- The plaintiff recovers nothing against a defendant whose intentional attack is privileged, as in self-defense
Comparing Different Types of Torts When Negligence Causes an Intentional Tort
Turner v. Jordon 1997
The conduct of a negligent defendant should not be compared with the intentional conduct of another in determining comparative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor. Plaintiff was injured by defendant’s psychiatric patient. Defendant knew his patient had a history of violent behavior but did nothing to prevent the harm.
Comparing Different Types of Torts When Negligence Causes an Intentional Tort
Restatement (Third)
When a negligent tortfeasor causes a plaintiff to be injured by an intentional tortfeasor, the negligent tortfeasor is jointly and severally liable, and the intentional tortfeasor is too.
Non-Parties at Fault
Cramer v. Starr 2016
In a comparative fault system, the jury can look at a non-party’s negligence or fault if the defendant files notice of fault. Plaintiff was injured in a car accident and suffered further injury as result of medical treatment. Defendant filed notice to name the doctor a third-party at fault.
Uniform Contribution Among Tortfeasors Act (UCATA)
The UCATA shifted away from all-or-nothing contributary fault and provided for the division of responsibility between tortfeasors. It retained joint and several liability, but most states that adopted it changed it to several liability
Uniform Apportionment of Tort Responsibility Act (Uniform Apportionment Act)
This reapportioned uncollectible shares to the remaining parties. Most states have not adopted this
No Non-Party Fault
Some courts do not allow the jury to consider the fault of non-parties.
Immune Tortfeasors
Some states allow courts to consider the negligence of immune tortfeasors when apportioning responsibility and others do not. In the states that do the effect is the amount of fault and liability of the immune tortfeasor is reduced.
