Multiple defendants

Question 1

Alternative causation

Answer 1

Under the alternative liability doctrine, if the plaintiff’s harm was caused by:

(1) one of a small number of defendants—usually between two and five;
(2) each of whose conduct was tortious; and
(3) all of whom are present before the court,

then the court may shift the burden of proof to each individual defendant to prove that her conduct was not the cause in fact of the plaintiff’s harm.

Question 2

Joint and several liability

Answer 2

Joint and several liability is the default rule on the bar exam.

Under the rule, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

Question 3

Intervening defendants

Answer 3

Negligent intervening acts on the part of another defendant are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.

Question 4

Alternative liability: plaintiff’s initial burden

Answer 4

The initial burden is on the plaintiff is to prove that all of the defendants did, in fact, act negligently.

Question 5

Concert of action doctrine

Answer 5

Under the concert of action doctrine, if two or more tortfeasors:

(1) were acting pursuant to a common plan or design and
(2) the acts of one or more of them tortuously caused the plaintiff’s harm,

then all the defendants will be held jointly and severally liable.