Settlement and Apportionment

Question 1

What is joint and several liability?

Answer 1

all the DFs are liable for all of the liability

Question 2

What is several liability?

Answer 2

each DF only pay for its share of liability

Question 3

What is market share liability?

Answer 3

Only liability for the degree of harm. Apportioning liability based on the market share on each of the manufacturers

Question 4

Define right of Contribution

Answer 4

Under joint and several liability, when one DF pays the full amount of the PL damages, she has the right to recover contribution from the other defendants.

If one of the DFs pay more than the other DF, then the DF can seek contribution.

Question 5

Pro Tanto Rule (always apply)

Answer 5

the liability of the DFs is divided into equal shares

Question 6

To obtain a preliminary injunction or TRO(temporary restraining order), a PL must prove four elements:

Answer 6

1. likelihood of success on the merits
2. the extent to which the PL is being irreparably harmed by the DF’s conduct
3. the extent to which the DF will suffer irreparable harm if the TRO issues
4. public interest [professor’s BS fator]

Question 7

Damages for property torts:

Answer 7

Full market value (with conversion)
Diminished value rule (with trespass to cattle and trespass to land) not full market value… basically cost of repairs. Or the rental value.

Injunctions:
Preliminary injunctions
Permanent injunctions

Question 8

Avoidable Consequences Rule

Answer 8

the avoidable consequences rule prevents recovery of damages flowing from consequences reasonably avoidable by PL.

Different from comparative fault b/c comparative comes before the accident. Avoidable is after. What steps did the PL take to minimize the injuries.

Question 9

Collateral Source Rule

Answer 9

damages awarded in Court to the PL cannot be reduced by any amount of other sources of income received by the PL for his injuries.

Question 10

Comparative Fault

Answer 10

the jury assigns each DF a specific share of liability based on each DF’s degree of fault

Question 11

Damages for personal injury torts:

Answer 11

Damages for reasonably incurred medical expenses resulting from the tort
Damages for lost earning capacity or lost wages
Damages for pain and suffering
Medical monitoring of prospective diseases that may develop in the future
Any other specifically identifiable harm that has resulted from the tort

Question 12

How does the jury decide what specific share the DF will get?

Answer 12

Trier of fact decides. Use various factors in assigning responsibility:

1. Nature of each person’s risk-creating conduct (how unreasonable the conduct was under the circumstances)
2. Extent to which the conduct failed to meet the legal standard
3. Each person’s abilities and disabilities
4. Each person’s awareness, intent or indifference with respect to risks