Joint Tortfeasors
1. Liability and Joinder of D’s
Joint tortfeasors are two or more individuals who either
(1) act in concert to commit a tort,
(2) act independently but cause a single indivisible tortious injury, or
(3) share responsibility for a tort because of vicarious liability.
Under traditional common law, each joint tortfeasor is “jointly and severally” liable for the plaintiff’s total damages. This means that each individual is fully liable to the plaintiff for the entire damage award. If the plaintiff is unable to collect a co-tortfeasor’s portion of the liability, the tortfeasor(s) from whom the plaintiff can collect are responsible for the other tortfeasor’s (s’) share. [See Restatement § 876.]
Traditionally, each liable defendant, if able, paid an equal pro rata share of the damages to the plaintiff based on the number of joint tortfeasors. This traditional approach has now been replaced in many states by a system of comparative allocations of responsibility among joint tortfeasors. Under a comparative approach, instead of dividing liability equally by the number of joint tortfeasors, liability is divided by the proportion of responsibility each tortfeasor bears to the plaintiff for his injury. In the absence of a reform statute, this comparative allocation does not necessarily alter joint liability. Each tortfeasor may still be responsible for insuring the plaintiff is paid the full judgment in the event it is impossible to collect from some tortfeasors
Two or more individuals who act independently but whose acts cause a single indivisible tortious injury are also joint tortfeasors.
Berczynski v. Rogers **Look at note cases for this case**
1. Facts:
a. D’s were racing on public road @ 2 times the legal speed. Bierczynski came to a stop and the other D, Race, hit the P’s car.
2. Rule:
a. A party is liable for injury to a 3rd party regardless if he directly caused damage or injury b/c he was acting in concert with the other defendant.
Joint & Several Liability
a. Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them and that each is also individually liable for the full amount.
b. P can collect from any one of them or any group
c. Factual situations in which J&S L is imposed
i. When D’s are acting in concert each are held liable for the entire damages
ii. That in which the D’s fail to perform a common duty to the P. Included here are cases involving the liability of 2 parties based on their relationship to each other (e.g., employer for acts of employee; master for acts of servant)
iii. Involving D’s who act independently to cause an indivisible harm
Coney v. JLG Industries
1. Facts:
a. P died while operating a hydraulic aerial work platform, manufactured by D. P also argued that his employer contributed to P’s injuries by failing to provide a groundman and by failing to instruct and train P on the operation of the platform.
2. Rule:
a. Death is an indivisible injury so comparative negligence or fault does not eliminate joint and several liability
b. Fairness dictates that the wronged party should not be deprived of his right to redress, the wrongdoers should be left to work out between themselves any apportionment
c. Defendant is liable for 100% of damages even if there are other tortfeasors.
4 Reasons for Retaining J&S Liability p. 365
o A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage
o Where P isn’t guilty of negligence, he would be forced to bear part of loss s
on or persons against whom they may have or assert any claim on account of damages arising out of the accident.” The trial ct ruled that covenant was a release against all tortfeasors.
2. Rule:
o Where a K has the effect of releasing one tortfeasor but reserves the right to sue others who may be liable, it should not in law be treated otherwise.
o Where P accepts partial payment for injury he has right to go after the other tortfeasors as well
Elbaor v. Smith
1. Facts:
o As result of car accident, P suffered compound fracture of ankle. Dr. Syrquin treated her on night of accident & 8 days later she was transferred where P was treated by Dr. Elbaor, Stephens, & Gamaitan. Eventually her ankle bone was fused & filed malpractice suit against all Dr.’s and hospitals
o P entered into “mary carter” agreement with Syrquin, Stephens, & other hospital. Those D’s would pay her $425,010.00, remain D’s, participate in trial and be paid back all or some of the settlement paid to P by D, Elbaor.
o Trial Court: Jury awarded 2.253M in damages w/ Elbaor being 88% responsible and Syrquin being 12% liable
2. Rule:
o Court Rejects the Mary Carter Agreement
i. When P enters into settlement agreement w/ 1 D and goes to trial against all other D’s. Settling D remains a party and guarantees the P a minimum payment which ay be offset in whole or in part by an excess judgment recovered at trial
3. Contribution and Indemnity
