Joint & Multiple Liabilities

Question 1

What element of Neg. is not proved in Summers v. Tice/alternative liability case?

Answer 1

Causation.-one is obviously not liable, but impossible to ascertain who. (two guys w/gun-one injury)
But liability imposed anyway because makes good policy sense. Pltf has to be able to be made whole.

Question 2

A reminder about SPL?

Answer 2

remember—–only for those “in business of selling.”
so if want to sue yardsale/craigslist guy for selling you car with knowledge of defect you use joint liability, not strict. ??? check notes on this?

Question 3

Price v. Halstead

Restatement 876 theory.

Answer 3

dead son, mom sues driver and drinking/marijuana smoking passengers under theory of “joint venture”
Rule = 3rd party liable if conduct substantially encouraged or assisted the driver’s alcohol or drug impairment.

Question 4

Restatement 876 (a)

Answer 4

For harm resulting to 3rd person for tortious act of another, person is liable if:

a) does a tortious act w/another pursuant to a COMMON DESIGN
or. ..

Question 5

876(b)

Answer 5

liable if he gave SUBSTANTIAL ASSISTANCE or encouragement w/KNOWLEDGE
or..

Question 6

876(c)

Answer 6

gives substantial assistance to other in reaching tortious result AND his own conduct is a breach of duty to the 3rd person.

Question 7

Must be “substantial” assistance. How we know if substantial? (876)

Answer 7

is a cousin of "aiding & abetting" (kinda like KWSC)
Court will look at following factors:
-nature of act encouraged
-amount assitance given
-presence/absence at time
-relation to other
-state of mind

Question 8

another place 876 theory shows up?

Answer 8

• Fringe Market Share Liabilities

- [or use instead of interference w/K (if were going to use interference) to get more liability exposure]

Question 9

DES cases

Answer 9

DES-hormone used to prevent miscarriage, but cause vaginal cancer in the babies.
Rejects alt.liability of Summers v. Tice and rejects Hall v. EI DUpont theory of joint enterprise cuz all do same thing/make cap blasters and instead goes w/Market Share liability=each defendent liable for their % share of the market.

Question 10

Why Market share is a new “high water mark” Justice Richardson

Answer 10

not proving fault against a “bad actor” and a def. that is not at fault is not supposed to be liable. Someone in mrkt made it poorly-you make it too-you pay.
vs. if dont have it then pltf can prove case against NOONE cuz couldnt prove it by preponderance of evidence.

Question 11

Randian theory (aynn Rand)

Answer 11

if we impose liablity w/out proving fault then uninsurability and no company will get off the ground and Market collapses.

Question 12

Was there contribution or indemnification at old common law?

Answer 12

NO. Unless was in a contract or by using ACTIVE/Passive doctrine.

Question 13

Active/Passive Doctrine

Answer 13

a passive def. was entitled to indemnity by a active def.

C/L allowed indemnity when whole of fault rested with another than the original defendant.

Question 14

Traditional Joint & Several Liability c/l

Answer 14

if acted together in a single injury to pltf then pltf could recover ALL of $ from either of the defendants or both up until amt. owed.

Question 15

UCTA

Uniform Contribution Among Joint Tortfeasers Act

Answer 15

1939-called for apportionment when joint liability would be inequitable.
Contribution was avail in cases of apportionment (%) OR in equal share (pro rata) absent apportionment

Question 16

UATRA

Uniform Apportionment of Tort Responsibility Act

Answer 16

Trend twd apportionment and away from joint (several only)

• In several only rule juris–def’s settlement has no effect on remaining liabilitis.
• Joint liablity stays amg def’s engaged in joint activity or employer/employee relat. (when fault is concurrent)

Question 17

So far have any states adopted the UATRA rule?

Answer 17

NO (so why the heck we have to know it?)

Question 18

Empty chair

Answer 18

when def’s argue a fault allocation to a nonparty/missing party. Def. may have to give pltf advance notice will argue this.
-minority approach-dont accept empty chair.

Question 19

Mass

Answer 19

seems to favor joint liability with pro rata shares

Question 20

how did common law treat settlements?

Answer 20

historically, when a pltf settled with one than discharged ALL.
-result was defs usu litigate “one for all, all for one”
Later rule evolved into allowing to keep actions against non settlers if the settling def. agreed. THEN switched to would continue against remaining defs UNLESs settlement agreement said otherwise (UCTA)

Question 21

UCTA treatment of settlements

Answer 21

make pltf whole but not rich. credit the remaining defs with the settlement amt OR with pro rata share, whichever higher. Pltf would loose out.

Question 22

was there empty chair at common law

Answer 22

NO

Question 23

Would fault allocation be made at common law

Answer 23

NO

Question 24

2 main things UCTA did?

Answer 24

1) created a right of contribution among defs

2) gave courts discretion to allocate fault “if equity so required” (usu. if grossly or disprop responsibility)

Question 25

3rd party in the fact pattern????

Answer 25

try 876 theory

Question 26

when is market share liability adopted?

Answer 26

when plaintiff can’t trace causation to any one manufacturer but they all manufacture same product.
-shifts burden of proof to defendants to each show they weren’t the manufacturer who made it.

Question 27

in Market share, unsuccessful defendants are liable __ ____.

Answer 27

SEVERALLY only, for a share of plaintiff’s loss proportional to the product market share of that manufacturer.