Negligence - Limitations, Liability among Multiple Defendants

Question 1

When the Defendant is a gov’t entity, what does their duty depend on?

Answer 1

Whether the government’s act is:

1. Discretionary
2. Propriety OR
3. Ministerial

Question 2

When is the gov’t acting in a proprietary function? What is the duty of the gov’t ?

Answer 2

When it’s acting in an area trad. occupied by private entities

• Gov’t will be treated as any other D for the purposes of duty

Question 3

What is the liab. of an emerg. dept. for an inadequate response?

Answer 3

When gov’t agency (police, fire dept.) is sued for failing to provide an adequate response

• Courts will find no duty

Question 4

When is the gov’t acting in a discretionary function? What is the duty of the gov’t ?

Answer 4

Court will find a duty if the gov’t entity is using:

1. Judgment
2. Discretion OR
3. Allocating resources

Question 5

When is the gov’t acting in a ministerial function? What is the duty?

Answer 5

There is no discretion in the act

• Actions are the performance of gov’t decisions
• Courts will find a duty once the gov’t has started the act

Question 6

Joint & Several Liability

Answer 6

If more than one pers. is a prox. cause of the ∏’s injury & the harm is indivisible, then each ▵ is liab. for the entire harm

• Harm is Divisible - Each ▵ is only liable for the identifiable portion
• • Contribution - Entire amount can be collected from any one of the ▵s - That ▵ can then seek to recover a proportional (not a pro rata) share of the damages from the other ▵s
• Exception - Contribution Not Available for Intentional Torts

Question 7

Joint & Several Liability - Satisfaction

Answer 7

Satisfaction = Full Payment - only one satisfaction is allowed (the ∏ can’t recover twice)

Question 8

Joint & Several Liability - Release

Answer 8

Release - Release of one ▵ is the release of all ▵s (common law NOT mod, statutes)

Question 9

Joint & Several Liability - Contribution

Answer 9

Contribution - Entire amount can be collected from any one of the ▵s

• That ▵ can then seek to recover a proportional (not a pro rata) share of the damages from the other ▵s
• Exception - Contribution Not Available for Intentional Torts

Question 10

Indemnity

Answer 10

Shifting of Liability from one Defendant to another

Question 11

Indemnity - Vicarious Liability

Answer 11

Full Indemnity - If A vic. liab. for B’s conduct, B will be required to fully indemnify A

Question 12

Indemnity - Strict Liability

Answer 12

Non-Manufactured v. Manufacturer - If a non-manuf. (retailer) is held liab. under Strict Products Liab. the non-manuf. will be able to get indemnity from others higher up in distribution chain (including manuf.)

Question 13

Indemnity - By Contract

Answer 13

Parties may expressly agree to shift liability

Question 14

If joint and several liability applies, then a plaintiff can sue who?

Answer 14

Sue one or both defendants

• can collect the entire loss from either

Question 15

When one defendant is sued for the full amount when another defendant is joint and severally liable, what can the sued defendant do?

Answer 15

The sued defendant can sue the other defendant for contribution

Question 16

What is contrabution?

Answer 16

Equitable apportionment or sharing among defendants