Joint Tortfeasors --> Who pays? Flashcards
Joint & Several Liability
JSL Jurisdiction Rule
Each or one tortfeasor is responsible for the full 100% amount of damages but plaintiff cannot over collect the set awarded damages amount
Plaintiff can decide to sue however many tortfeasors they want
and D’s are entitled to one satisfaction
JSL
when one D is sued but all other D’s need to be included in the lawsuit,,
If only one was sued while others were responsible then that tortfeasor could implead (file a third party complaint bringing someone else into action)
JSL rule
where one of the D’s isn’t available to be sued but the other D is present in the law suit….
The risk of an immune, bankrupt, or unknown D will fall on the
capable D in the lawsuit
JSL
Doctrine of Contribution rule
When one or another D pays more than their fair share –> one of D’s can get a contribution if they are codefendants in a joint and several liability situations
JSL Contribution rule uses what approach to calculate damages…
Pro Rata Approach
look at # of defendant’s responsible and split the damages evenly among all D’s
If there are 2, then each is 50% responsible
If there are 3, then each is 33% responsible
JSL Contribution
Jury Exception to Contribution
If the jury assigns certain percentage of fault to each D’s –> then first D with smaller % of fault who pays P the full damages amount can seek contribution from other D with greater % fault can pay the first D the greater % of fault
JSL Situations
what are the 3 types?
o 1. D’s act in concert to create joint risk
o 2. D’s failure to perform common or shared duty
o 3. OR D’s independent acts of negligence combine to create indivisible injury
JSL Situations
on D’s acting in concert to create the joint risk
there must be an agreement to participate in a joint creation of the risk
don’t assume both D’s are present at the time of the injury–>makes both act in concert
JSL Situations
D’s acting in concert to create a joint risk
Encouraging or inciting an assailant
* Agreeing to go drag racing
Common enterprise
* Common goal acting towards a specific goal
JSL situations
D’s independent acts of negligence combine to create the indivisible injury
these are not capable of apportionment for damages
Comparative Fault (CF)
Jurisdiction rule
In a CF jurisdiction that does not use J&S L –> there is no right to contribution bc under comparative fault each party pays their own fair share anyway, so they’re not entitled to contribution
CF in Florida
whats their rule?
FL abolished using comparative fault
- However, will still use JSL for intentional torts and for when they can’t apportion
CF rule dealing Vicarious Liability on who exactly pays
jury would them treat them all as one unit when assessing percentage of fault
Pure CF Rule
If we are in a pure comparative fault jurisdiction –> jury would have to apportion percentage of fault and D’s would pay according to their percentage fault
CF Pure Rule without contribution
If you are in a pure comparative fault jurisdiction and only pay the percentage of the judgement the jury assigned to you –> then you as D may not seek contribution
CF rule without jury assigning fault to D’s
- In cases where percentages of fault have not been assigned to the D’s by the jury –> we use the D’s pro rata share to determine each D’s fair share of the judgement
CF rule with JSL approach
If we are in a CF jurisdiction that retains J&S L –> then P and other D’s would each be responsible for the full damages amount
CF rule with JSL approach with contribution
- Even though the jury has assigned percentages of fault for each D –> each D is joint and severally liable bc jurisdiction retains JSL –> thus D can seek contribution from rest of D’s when 1 D paid all damages to P
Satisfaction
what does it mean?
P is paid in full by one or whoever many D’s and can no longer obtain further damages
o There’s only one full satisfaction of the judgment, any partial satisfaction has
to be credited to the remaining defendants
CL Release rule
If you release one defendant from being sued –> then you release all of them
CL Release rule
majority rule
: look at express language to see who P is releasing and retaining the right to sue
* If P makes a mistake regarding the extent of their injuries and they have already released the defendant, –> then too bad
o However, P would still sue other D but the full damages amount paid by the original sued by D would be deducted from the judgement and other D would only pay smaller portion of that full damages settled
Contribution
basic take on the rule
o You cannot sue to get both indemnity AND contribution
o Can sue tortfeasors in different suits but can only collect from 1 overall
satisfaction settlement
AND you can’t get contribution from another D for intentional torts!!!
How to get contribution from another D thru civil procedure…
1. Defendant impleading –> File a 3rd party complaint while in proceedings, against another contributing defendant
2. Defendant can Implead after lawsuit is over with a separate lawsuit
3. OR Defendants can file cross-complaints in original lawsuit
Indemnity
where does it apply?
when someone is responsible based upon relationship not upon fault (vicarious liability) and they (P) is seeking compensation
Pro Tanto Approach
when assigning % of fault to everyone
when everyone settles with specified amount for P –> then just subtract out one of D’s amount from the rest of the total amount
Ex hypo: Carl settles with Betty for $10,000 and suit continues against Doug. Carl’s total damages are $50,000.
if use this –> look at number of D’s and here there are 2 D’s –> so betty settles at $10K and the doug pays the $40k
