Collective Liability

Question 1

Three types of Collective Liability

Answer 1

1-Concert of Action (Kingston)
2- Alternative Liability-Where the concert of two or more actors is tortious and it is proved that one of them caused the harm, then they both can be held joint and several liable
3- Market share liability

Question 2

Alternative Liability

Answer 2

Rule: When two or more persons by their acts are possibly the sole cause of a harm, and the plaintiff has introduced evidence that one of the two persons is culpable (responsible), the defendant has the burden of proving that the other person was the sole cause of the harm, or liability should be imposed jointly. All tortfeasors must be before the court.

Summers v. Tice- court determined burden of proof was on defendants

Question 3

Market Share Liability Requirements

Answer 3

1. All of the named defendants are potential tortfeasors
2. The product is fungible
3. The π cannot identify which of these ∆s produced the drug that caused her in jury to no fault of her own
4. A substantial share of the defendants that caused the injury are present.

Question 4

Sindell v. Abbott Labs

Answer 4

Rule: Although the specific manufacturer of drug DES could not be identified, plaintiff could hold the manufacturers of the drug which was produced from an identical formula liable for her injuries upon a showing that the manufacturers produced a substantial percentage of the drug in question, with each manufacturer being held liable for the proportion of the judgment represented by its share of the drug market unless it demonstrated that it could not have made the product which caused the plaintiff’s injuries.

Court awards proportionality based on market share.

Question 5

Fungibility

Answer 5

all of the defendants are using the exact same chemical formula for its product—approximating harm.