Damages: Aportionment Flashcards
Aportionment of Damages
Two Solutions for How Much Each Defendant Should Pay
Apportionment of Damages
(1) Joint and Several Liability: Common law solution where the plaintiff could enforce the total judgment against any defendant
(2) Several Liability: Modern solution where each defendant is assigned an individual obligation based on his fault
Joint & Several Liability
Background/Policy
- Based on maximizing the likelihood that the plaintiff would be able to collect the full amount of judgment
- This doctrine was pretty harsh because any defendant could be liable for total judgment, even if they were a small part of causing the injury
- Procedure for Ameliorating Harshness of J&S Liability: Contribution
- When a defendant forced to pay entire judgment, he may file suit against other defendants to recover that defendant’s portion of liability
- CL: there was no right to contribution, NOW it is recognized just about everywhere
- Originally, the right to contribution was pro tanto (split up equally) but in world of comparative fault, it makes more sense to apportion right of contribution based on percentage of responsibility
- However, risk of insolvency is still on the defendant who has to pay the judgment
- Some courts allow attorney to present statement of how J&S liability works to jury, others don’t
- attorneys want to present this to jury to warn them that any finding of negligence could result in that defendant having to pay whole judgment
Joint & Several Liability
Settlement Credit
Settlement Credit:
- Akin to right of contribution
- When a tortfeasor settles with the plaintiff, there is no longer a right to contribution against that defendant, but the remaining defendant gets credited for the value of the settlement (only when there is J&S liability)
Joint & Several Liability
One Satisfaction Rule
One Satisfaction Rule: In J&S jurisdictions, the plaintiff may only recover a total of 100% of damages, no matter who he is recovering from (includes settlement credits)
(double check this. missing stuff)
Joint & Several Liability Definition
- Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.
- The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants,
- as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.
Examples of when joint and several liability applies include, among other instances, when:
i) The tortious acts of two or more tortfeasors combine to produce an indivisible harm (see § IV.E.1.b.2. Concurrent tortfeasors contributing to an individual injury, supra);
ii) The harm results from the acts of one or more tortfeasors acting in concert (see § IV.E.1.b.4. Concert of action, supra);
iii) Alternative liability applies (see § IV.E.1.b.3. Alternative causation, supra);
iv) Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and the defendants are unable to identify the tortfeasor whose acts were negligent (see § IV.D.2. Res Ipsa Loquitur, supra); and
v) The employer and the employee are both held liable (see § IV.H.1. Liability of an Employer for an Employee’s Torts, supra).
What is contribution?
If two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability, then he may sue any of the other joint tortfeasors for contribution, and recover anything paid in excess of his fair share.
Determining fair shares - In most jurisdictions, each party’s fair share is determined by comparing how far each tortfeasor departed from the standard of reasonable care.
Intentional tortfeasor - Generally, a party who has committed an intentional tort may not seek contribution from another tortfeasor.
What is several liability?
Several (Proportionate) Liability
- A significant number of states now reject j & s liability and instead recognize pure several liability, under which each tortfeasor is liable only for his proportionate share of the plaintiff’s damages.
- In most jurisdictions, each defendant’s share of liability is determined in accordance with how far each deviated from the standard of reasonable care. In other words, the more culpable defendant pays the higher proportion of the damages.
Satisfaction and Release
Once a plaintiff has recovered fully from one or a combination of defendants, she is barred from pursuing further action against other tortfeasors. The plaintiff generally may not receive double recovery.
If the plaintiff has NOT been wholly compensated, it is now the usual rule that a release of one tortfeasor does not release the others but instead diminishes the claim against the others, ordinarily by the amount of compensation received from the released tortfeasor. However, a release may bar claims against other tortfeasors if either (i) the release agreement so provides or (ii) the plaintiff has been entirely compensated for his losses.
Indeminification is ______.
Indemnification is the shifting of the entire loss from one joint tortfeasor to another party.
Indemnity in degree of blameworthiness is rejected in jurisdictions with ________.
Indemnity in degree of blameworthiness is rejected in jurisdictions with comparative negligence systems.
These states apportion damages based on relative fault, although indemnification is allowed in other instances when it is not based on degree of fault.
Indeminification and vicarious liability
Indemnification generally applies when one tortfeasor is vicariously liable for the other’s wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm (e.g., an employer who pays a judgment for the tort of an employee because of the employer’s vicarious liability).
The employer can then seek complete reimbursement (indemnity) from the employee when:
i) There is a** prior indemnification agreement** between the parties (e.g., in the construction industry, a contractor may agree to indemnify a subcontractor for the latter’s negligence that may occur in the future);
ii) There is a significant difference between the blameworthiness of two defendants such that equity requires a shifting of the loss to the more blameworthy defendant;
iii) **Significant additional harm is subsequently caused by another tortfeasor **(i.e., one defendant pays the full judgment, including for additional harm caused by the malpractice of the treating physician); or
iv) Under strict products liability, each supplier has a right of indemnification against all previous suppliers in a distribution chain.
In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves
that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
This doctrine has been abolished in most comparative-fault jurisdictions.
In either a pure comparative-fault or a modified comparative-fault jurisdiction, the plaintiff’s degree of negligence is compared to _______.
In either a pure comparative-fault or a modified comparative-fault jurisdiction, the plaintiff’s degree of negligence is compared to the total negligence of all defendants combined.
