Apportionment

Question 1

Causal Apportionment

Answer 1

Plaintiff has separate injuries and each defendant is liable for the harm she caused

Question 2

Fault Apportionment

Answer 2

Plaintiff has an indivisible injury and each defendant is liable for the percentage of harm his conduct caused

Question 3

Joint and Several Liability

Answer 3

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

Question 4

Several Liability

Answer 4

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.

Question 5

Limits on Joint and Several Liability

Answer 5

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.

Question 6

Varied Rules in Restatement (Third)

Answer 6

• 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

Question 7

Important Question in Joint and Several Jurisdictions

Answer 7

How joint liabilities are divided between multiple tortfeasors through contribution and indemnity

Question 8

Important Issues in Several Liability Jurisdictions

Answer 8

• 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

Question 9

Comparative Responsibility

Answer 9

When courts refer to comparative responsibility, it is usually because the comparison is between at least one other form of actionable conduct besides negligence.

Question 10

Comparative Fault

Answer 10

This might refer to comparisons between different types of actionable conduct, or it might not

Question 12

Comparative Negligence

Answer 12

This is most likely comparing different kinds of negligence

Question 13

Apportionment with Joint and Several Liability

Hill v. Rhinehart 2015

Answer 13

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.

Question 14

Traditional Contexts for Joint and Several Liability

Concerted Action

Answer 14

Joint and several liability applies when two or more people commit a single tort together

Question 15

Traditional Contexts for Joint and Several Liability

Indivisible Injury

Answer 15

Joint and several liability applies when two or more people individually contribute to an indivisible injury

Question 16

Traditional Contexts for Joint and Several Liability

One Person Creates a Risk of Harm by Another

Answer 16

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

Question 17

Traditional Contexts for Joint and Several Liability

A Defendant’s Vicarious Liability

Answer 17

Joint and several liability applies when one party is vicariously liable for another’s tort.

Question 18

Traditional Forms of Settlement with One of Several Tortfeasors

A Plaintiff’s Claim is Fully Satisfied

Answer 18

If the plaintiff sues one tortfeasor and recovers the full amount if his injuries, he can’t go after the other tortfeasors.

Question 19

Traditional Forms of Settlement with One of Several Tortfeasors

Releases Under Common Law

Answer 19

If a plaintiff releases one tortfeasor from liability, all other tortfeasors are also released.

Question 20

Traditional Forms of Settlement with One of Several Tortfeasors

Covenants Not to Sue

Answer 20

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

Question 21

Common Law Limit on Contribution

Answer 21

Common law is opposed to contribution and many states will deny it to intentional tortfeasors

Question 22

Common Liability Rule for Contribution

Answer 22

The person claiming contribution must show the other defendant is liable to the plaintiff otherwise he cannot collect.

Question 23

Payment in Settlement Rule for Contribution

Answer 23

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.

Question 24

Traditional Amount of Contribution (Pro Rata Share Rule)

Answer 24

Each tortfeasor pays for his share of an indivisible injury.

Question 25

Indemnity

Answer 25

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

Question 26

Relative Fault for Joint and Several Liability

Answer 26

Some statutes still allow joint and several liability if the plaintiff’s fault is small and the defendants’ fault is great.

Question 27

Total Abolishment of Joint and Several Liability

Answer 27

Some statutes abolish joint and several liability all together, with exceptions for hazardous wastes and pollution.

Question 28

Comparative Indemnity

Safeway Stores, Inc. v. Nest-Kart 1978

Answer 28

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

Question 29

Factors for Comparative Responsibility

Answer 29

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)

Question 30

Comparing Different Types of Torts

Board of County Commissioners of Teton County v. Basset 2000

Answer 30

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.

Question 31

Comparing Different Types of Torts

Answer 31

Many courts agree that the negligence of one defendant can be compared with the intentional or willful wrongdoing of another.

Question 32

Plaintiff-Defendant Comparisons

Answer 32

Courts rarely call for apportionment between a negligent plaintiff and the intentional tort of a defendant.

Question 33

Three Types of Plaintiff-Defendant Comparisons
Landry v. Bellanger 2003

Answer 33

1. The plaintiff who negligently provokes an intentional tort will recover fully from the defendant.
2. The plaintiff who commits an intentional tort can recover from an intentional tortfeasor defendant with damages reduced with comparative fault
3. The plaintiff recovers nothing against a defendant whose intentional attack is privileged, as in self-defense

Question 34

Comparing Different Types of Torts When Negligence Causes an Intentional Tort

Turner v. Jordon 1997

Answer 34

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.

Question 35

Comparing Different Types of Torts When Negligence Causes an Intentional Tort

Restatement (Third)

Answer 35

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.

Question 36

Non-Parties at Fault

Cramer v. Starr 2016

Answer 36

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.

Question 37

Uniform Contribution Among Tortfeasors Act (UCATA)

Answer 37

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

Question 38

Uniform Apportionment of Tort Responsibility Act (Uniform Apportionment Act)

Answer 38

This reapportioned uncollectible shares to the remaining parties. Most states have not adopted this

Question 39

No Non-Party Fault

Answer 39

Some courts do not allow the jury to consider the fault of non-parties.

Question 40

Immune Tortfeasors

Answer 40

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.