Multiple Defendant Issues

Question 1

Common Law Joint and Several Liability

Answer 1

Under traditional common law, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (liable to the plaintiff for the entire amount) (RULE ON MBE)

If the injury is divisible, each defendant is liable for only the identifiable portion.

NOTE - if two or more defendants act in concert and injure the plaintiff, they are jointly liable even if the injury is divisible

Question 2

GA Joint Liability

Answer 2

GA has eliminated joint liability for all claims involving multiple tortfeasors

In such case, the trier of fact must apportion fault among all persons who contributed to the injury, including nonparties. A defendant will only be liable for the damages charged against them, and there is no right of contribution.

Question 3

Satisfaction

Answer 3

Recovery of full payment is satisfaction. Only one satisfaction is allowed.

However, until there is a satisfaction, one may proceed against all jointly liable parties.

Question 4

Contribution

Answer 4

The rule of contribution allows a defendant who pays more than their share of the damages under joint and several liability to have a claim against other jointly liable parties for the excess - it apportions responsibility among those at fault

Question 5

Types of Contribution

Answer 5

Comparative Contribution (ASSUME ON MBE) - contribution is imposed in proportion to the relative fault of the various defendants

Equal Shares - apportionment is in equal shares regardless of degrees of fault

Question 6

Indemnification

Answer 6

Indemnification involving shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstance:

– in vicarious liability situations
– under strict products liability for the non-manufacturer (previous suppliers have to indemnify)

NOTE - there will be no right to indemnity in GA for strict products liability because retailers cannot be held strictly liable in GA

Question 7

Loss of Consortium and Tortious Interference with Family Relationships

Answer 7

Between Spouses - Either spouse an bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse

Parent - Child - A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent. A child, however, has not action in most states against one who tortiously injures their parent

Nature of the Action - actions for interference with family relationships are derivative - therefore any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship

Question 8

GA Loss of Services

Answer 8

In addition to recovery for loss of services, parents can recover against a person who provides intoxicating beverages to their minor child or engages the child in a game of chance for money or valuables without parental consent.

Question 9

Survival of Tort Actions

Answer 9

Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury.

However, torts invading intangible personal interests (defamation, invasion of privacy rights, malicious prosecution) expires upon the victim’s death.

Question 10

GA Survival of Tort Actions

Answer 10

Unlike most states, a pending libel action in GA will survive the death of the plaintiff and be actionable under the state’s survival statute

Question 11

Wrongful Death

Answer 11

Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded.

Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. Therefore, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states.

Question 12

GA Wrongful Death

Answer 12

The measure of recovery in GA for wrongful death is the full value of the life of the decedent, which includes loss of support and loss of companionship.

In cases where the death resulted from a crime or from negligence, funeral, medical, and other expenses may also be recovered.

Question 13

Intra Family Tort Immunities

Answer 13

Traditional View - one member of a family unit could not sue another in tort for personal injury

Today - most states have abolished spousal immunity. A slight majority has also abolished parent-child immunity

Those that retain parent-child immunity do not apply it in
1) cases alleging intentional tortious conduct; or
2) automobile accident cases to the extent of insurance coverage

Question 14

GA Intra Family Tort Immunities

Answer 14

GA still follows the traditional views with respect to intra family tort immunity.

However, if the plaintiff can show that the traditional policy reasons for applying the immunity (preservation of marital harmony and avoidance of collusion) are not present, the doctrine will not be applied

Additionally, in wrongful death actions, the inter-spousal immunity doctrine violates the constitutional right of equal protection

Question 15

Federal Tort Claims Act

Answer 15

Under the FTCA, the US have waived immunity for tortious act.

However, immunity will still attach for
1) assault,
2) battery,
3) false imprisonment
4) false arrest
5) malicious prosecution
6) abuse of process
7) libel and slander
8) misrepresentation and deceit
9) interference with contract rights

Question 16

Georgia Tort Claims Act

Answer 16

Under GTCA, the state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. This waiver applies only to actions brought in a GA court.

Sovereign immunity is retained in the following activities:
1) conduct by a state officer or employee exercising due care in the execution of a statute or regulation
2) performance of a discretionary function by the state officer or employee
3) legislative, judicial, quasi-judicial, opt prosecutorial action or inaction
4) failure to provide police or fire protection
5) various intentional and quasi intentional torts committed by state officers or employees
6) inspection, licensing, planning, and financing functions
7) activities of the GA national guard or organized militia while on duty

Recovery for a single person for a loss arising from a single occurrence is $1 million. The state’s aggregate liability per occurrence is $3 million. Punitive damages are not allowed.

Question 17

Immunity for Public Officials

Answer 17

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches for ministerial acts.

Question 18

GA Public Official Immunity

Answer 18

A state officer or employee who commits a tort while acting within the scope of their official duties or employment is not subject to liability for such tort. No such immunity attaches to conduct outside the scope of official duties or employment.

Employees of municipalities may be liable for injuries and damages caused by the negligent performance of their ministerial function, as well as intentional torts. Otherwise, such employees are not liable for the performance of their official functions.

Officers or employees of fire departments are immune from liability for acts done while fighting a fire, except for willful negligence