General Tort Principles

Question 1

Joint and Several Liability

Answer 1

P can sue all, some, or just one of the tortfeasors for the damage caused by all of them. P can only sue once, but can collect the full damages from just one of the tortfeasors if the tortfeasors are jointly and severally liable.

• Two Situations:*
  (1) Concerted Action:

Two or more people agree to act in a common endeavor. Even if only one person acts, all in agreement can be liable.

(ex. if two people agree to drag race, and one loses control and injures a bystander, all participants who agreed to the race can be liable, J&S)
(2) Two or more tortfeasors, acting independent of each other, cause a single injury to the P.
(ex. D₁ negligently causing damage to the P, requiring an operation to P’s leg. The Doctor (D₂) negligently operates on the leg and causes additional injury.)
- D₁ is still the actual and proximate cause to the victim.
- D₂ has to take the P as they are found (eggshell P rule).

Question 2

Comparative Contribution

Answer 2

When a joint tortfeasor is held jointly and severally liable for the entire amount of P’s damage, the tortfeasor can collect from the other tortfeasors for their share of the damage.

-comparative contribution has nothing to do with the amount of money the P can collect from a particular D. This is simply to settle squabbles between the Ds. Always apply this unless the question states there is no comparative contribution.

Question 3

Respondeat Superior

Answer 3

Employor will be liable for the torts of an employee for torts committed in the scope of employment. If the employee was performing his duty when the tort was committed or the tort occurring during “minor deviations” it will be considered within the scope of duty.

Requires an employer/employee relationship PLUS a tort within the scope of the employment

Generally, torts of independent contractors are typically not respondeat superior, unless there is a question of whether the contractor is actually an employee.

Exceptions:

Some duties are “non-delegable” on the part of the D

(ex, employer hires independent contractor to do a job that is extremely dangerous or creates a serious risk of harm. Also, a landowner cannot avoid liability for dangerous conditions on land by hiring an independent contractor to remove it.)

Question 4

Wrongful death and survival statute

Answer 4

Wrongful Death:

Action brought by beneficiaries of the decedent under negligence, strict liability, etc. State law dictates which beneficiaries are allowed to sue under this theory, but will always include spouses and 1^st degree relatives. Creditors have no rights to the recovery. Ds can assert and degense that would have ben available.

Survival Cause of Action (decedent’s right to sue doesn’t die with decedent):

Common Law, a dead person can’t sue.

Today, practically all states allow suing under personal injury and property damage causes actions on behalf of a decedent. Personal representative of the estate brings the claim. Any damages collected become part of the estate. Damages collected are subject to the creditors of the estate.

Question 5

Immunities

Answer 5

There are some immunities.

Question 6

Statute of Limitations

Answer 6

Start to run at the time of the injury with some exceptions:

(1) Medical malpractice: state to run at the completion of treatment by the doctor
(2) Latent injuries: Start to run when the P discovers or should have discovered the injury.

Question 7

Most Incorrect Answer

Answer 7

All-time number one incorrect answer: The D is not liable because someone else is liable or someone else caused the harm (or was negligent, or someone else had a duty, or someone else …). This will appear a dozen or more times, but it will always be wrong. This is wrong because of joint and several liability. In a tort lawsuit, D must show an element of the tort was missing, or by asserting an affirmative defense that is given to her under the law.