Joint Tortfeasors

Question 1

Joint and several liability

Answer 1

1. Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount
   
   1. Plaintiff can collect from any one of them or any group of them
   2. Each defendant who is found to have acted in concert is liable for the full damages (Bierczynski v. Rogers)
2. Plaintiff can only get one full recovery, but she can get it all from either defendant, and then the burden is shifted to them to collect from the other
3. Plaintiff is likely to choose to sue the defendant with insurance, money, or assets
4. Without joint and several liability, if one defendant didn’t have assets, plaintiff would be out of luck
5. Three situations in which joint and several liability is usually imposed:
   
   1. Where tortfeasors acted in concert
   2. Where defendants fail to perform a common duty to the plaintiff
   3. Where defendants have acted independently to cause an indivisible harm, either simultaneously or successively
6. Comparative negligence doesn’t mean that joint and severally liability cannot be imposed (Coney v. JLG Industries)
7. Several liability: Each tortfeasor pays no more than his apportioned share, and the injured party bears the loss of any uncollectible share
8. About a dozen jurisdictions have abolished joint and several liability

Question 2

Concurrent causes i)

Answer 2

Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it (Hill v. Edmonds)

1. In these cases, the damage would not have occurred from the negligent acts individually
2. The parties haven’t acted in concert, but each is still responsible for the full amount
3. The “but for” test fails in these types of cases because it’s impossible to show
   
   1. Therefore, the court does away with the but for requirement in these situations
4. Courts allow the plaintiff to sue only one of the defendants to recover the full injury rather than sue each for half the amount, and then allow the defendant to subsequently recover the other half from the other defendant
   
   1. Trying to make it as easy as possible for the plaintiff to recover

Question 3

Concurrent causes ii)

Answer 3

Where two negligent acts combine to caused an injury, even though either one would have caused the injury individually, each tortfeasor is individually liable (Anderson v. Minneapolis)

1. If we didn’t keep joint and several liability in these situations, the defendants would each try and blame each other for the negligence
   
   1. Shouldn’t put the burden on the plaintiff to identify all possible defendants
2. CA test: The “but for” test remains operable for all negligence cases except those involving concurrent independent causes, where the “substantial factor” test should be used (FN: Viner v. Sweet)
   
   1. Both parties are liable if each of their acts was a substantial factor in causing the injury

Question 4

Joinder

Answer 4

1. Joinder is permitted when defendants acted in concert, when defendants acted independently to cause the same harm, and even when defendants acted independently to cause different harms
2. Most jurisdictions permit plaintiff to join multiple defendants in the same action, but do not require the plaintiff to do so
   
   1. It is up to the plaintiff how many defendants she wishes to sue

Question 5

Satisfaction

Answer 5

1. One who has been injured by the wrong of several parties may recover his damages against either or all, but although there may be several suits and recoveries, there can be but one satisfaction (Bundt v. Embro)
2. Full satisfaction of a plaintiff’s claim, by full payment, would prevent its further enforcement
3. Any partial satisfaction of the claim must be credited to the other parties who are also liable
4. Payments made by the tortfeasor’s liability insurance company are credited against the judgment, but if somebody else gives money to the injured plaintiff, this money is not credited (FN: Burke v. Byrd)
5. A satisfaction is different than a judgment, because a judgment is merely the ruling of a court

Question 6

Release

Answer 6

1. The common law rule is that release of one tortfeasor releases all others that may have liability
   
   1. A release is a surrender of the plaintiff’s claim – it means the plaintiff is fully satisfied
2. A covenant not to sue is not considered a release (Cox v. Pearl)
   
   1. A release releases all tortfeasors from liability, while a covenant not to sue only releases that one party

Question 7

Mary Carter Agreements

Answer 7

1. A Mary Carter agreement exists when the plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendants
2. These agreements create enormous financial incentives for defendants to settle, and judges encourage settlement to promote judicial efficiency
3. Also encourages a distorted view of what actually happened
4. Most jurisdictions allow the agreements as long as they are not kept secret from the other defendants
   
   1. Some jurisdictions deem these agreements void against public policy