Joint Tortfeasors

Question 1

What is the general rule for joint and several liability?

Answer 1

Two or more tortfeasors may be joined as joint tortfeasors and held jointly or severally liable to the plaintiff for harm caused.

Question 2

When do joint tortfeasors arise? (3)

Answer 2

1. When the plaintiff’s harm is proximately caused by the tortious actions of two or more actors
2. When two or more people act tortiously in concert to proximately cause the plaintiff’s harm
3. When liability arises by operation of the law (i.e. vicarious liability)

Question 3

What do joint liability jurisdictions do?

Answer 3

In a joint liability jurisdiction, each defendant is jointly responsible for 100% of the plaintiff’s damages, regardless of the defendants’ percentage of fault.

Question 4

Who is protected from joint liability?

Answer 4

Doctors, pharmaceutical manufacturers, products liability cases, etc.

Question 5

What do several liability jurisdictions do?

Answer 5

In a several liability jurisdiction, each defendant is only responsible for the percentage of the plaintiff’s damages proportionate to each defendant’s percentage of fault.

Question 6

In what type of jurisdiction is contribution available?

Answer 6

Joint, not several liability

Question 7

What is contribution?

Answer 7

A defendant has a right to sue other defendants for anything paid in excess of the suing defendant’s percentage of fault.

Question 8

What are the two approaches to determining contribution?

Answer 8

1. Pro rate- just split evenly
2. Proportional (modern approach) - based on percentage of fault

Question 9

Generally, when is contribution not available? (2)

Answer 9

• For intentional torts or concerted action
• Against defendants who were unable to be pursued in the plaintiff’s original action due to some immunity

Question 10

What is indemnity?

Answer 10

Indemnification allows a joint tortfeasor who paid a judgment or settlement to seek 100% repayment from the non-paying joint tortfeasor.

Question 11

When is indemnity available? (3)

Answer 11

1. indemnity by contract
2. vicarious liability (i.e. employer)
3. considerable difference in degree of fault (rejected in majority of jurisdictions – usually makes an active/passive distinction)

Question 12

When is indemnity not avilable? (2)

Answer 12

1. If the indemnitee bears any independent fault
2. For intentional torts

Question 13

What is a satisfaction?

Answer 13

Where two or more defendants damage the plaintiff, and the plaintiff recovers full payment from one of the defendants eitherby settlement or payment of judgment, the plaintiff may not reover against any of the other defendants. This payment is called satisfaction.

Question 14

What is a release? Distinguish common law and modern (majority) approach.

Answer 14

A release is a surrender of plaintiff’s cause of action against the party to whom release is given. At common law, the release of one joint tortfeasor released all joint tortfeasors. The modern, majority approach provides that the release of one tortfeasor does not release the other joint tortfeasors unless expressly provided in the release agreement.

Question 15

Under the majority approach, what effect does a co-defendant’s settlement have on a plaintiff’s final award?

Answer 15

Under the majority approach, the settling defendant’s percentage of fault (NOT the amount paid in settlement), as determined by the fact-finder, is deducted from the damages awarded to the plaintiff regardless of the actual cash payment made by the settling defendant to the plaintiff.

Question 16

Under the minority approach, what effect does a co-defendant’s settlement have on a plaintiff’s final award?

Answer 16

The minority approach allows the settling defendant’s payment to be deducted from the final total damages owed to the plaintiff. This results in the remaining joint tortfeasor paying the full damages amount actually awarded to the plaintiff, minus the settling defendant’s payment, even if that increases the percentage of the damages for which the remaining defendants were originally liable.

Question 17

What is usually required by jurisdictions following the minority rule regarding the effect of a settling co-defendant on a plaintiff’s overall recovery?

Answer 17

Minority jurisdictions using this approach generally require a “good faith” hearing to confirm that the settlement is not a conspiracy by the plaintiff and the settling defendant to make another defendant pay an excessive share.

Question 18

When is a settling joint tortfeasor allowed to pursue contribution?

Answer 18

If a joint tortfeasor settles with the plaintiff for the full amount of the damages

Question 19

When is a settling joint tortfeasor not permitted to seek contribution?

Answer 19

If the joint tortfeasor settles for something less than the full amount of the claim

Question 20

Name the three views regarding contribution from settling joint tortfeasors.

Answer 20

1. Setoff with contribution
2. setoff without contribution
3. proportional share

Question 21

When seeking contribution from a settling joint tortfeasor, what is the idea of setoff with contribution?

Answer 21

The non-settling defendant enjoys a credit (the amount of the co-defendant’s settlement) and contribution is available from the settling defendant.

Question 22

When seeking contribution from a settling joint tortfeasor, what is the idea of setoff without contribution?

Answer 22

The non-settling defendant enjoys a credit (the amount of the co-defendant’s settlement) but contribution is not available if the settlement was made in good faith by the settling defendant.

Question 23

When seeking contribution from a settling joint tortfeasor, what is the idea of proportional share?

Answer 23

The non-settling defendant receives no credit, but the judgment is reduced on a pro rata, proportional, or statutory basis.

Question 24

What is a Mary Carter Agreement?

Answer 24

A Mary Carter Agreement is where (1) the defendant maintains an interest in the outcome of the trial; (2) the plaintiff and the defendant agree upon a settlement based upon a sliding scale of damages; and (3) a settlement agreement which potentially pits interests of a settling defendant against the interests of other defendants.

Question 25

Regarding Mary Carter Agreements, what is the sliding scale of damages?

Answer 25

Where the plaintiff will give back the settling defendant’s money to the defendant based on how much money the plaintiff gets out of the remaining defendant.