Torts Final Exam Outline
Joint Tort Feasors
Liability and Joinder of Δs:
When 2 or more individuals or wrongdoers acting in concert and their actions injure an innocent 3rd party, all may be liable for concurrent negligence, regardless of which one directly caused the injury
Joinder:
Govern whether the causes of action that the Πs have against each of the Δs can be joined together in a single suit
CL: permitted joinder in the same suit of multiple Δs only if those Δs had acted in concert
Modern: joinder permitted when the Δs acted:
in concert
independently to cause the same harm
independently to cause different harms
Based on principle of convenience
Πs are not required to join multiple Δs, just have the right to do so
Joint & Several Liability:
Each of the tortfeasors is liable jointly with the others for the amount of the judgment against them and each is also individually liable for the full amount
Π can collect from any one or any group
3 factual situations where imposed:
Δs act in concert to injure Π (concurrent negligence)
Δs fail to perform a common duty to Π
Δs who acted independently to cause an indivisible harm
Doctrine of Comparative Negligence:
Side 1:
Does not eliminate joint and several liability
Would be unfair to Π because he would have to bear a portion of the loss if one of the tortfeasors was unable to pay his portion of the injury
Comparative negligence on the part of the Π lessens the % that the tortfeasors are liable for
Does NOT bar Π from recovery
Side 2:
Does eliminate joint and several liability
Not fair for Δs to pay more than they are liable for under pure comparative negligence
Shifting the risk to Π and holds Δ liable for any % they are individually liable
May keeps Πs from going after deep pockets instead of who is actually culpable
Satisfaction and Release:
Once a Π is made whole, judgment is satisfied and serves as a release of all Δs
Π can be made whole only once
No unjust enrichment
Π may bring a series of separate actions against Δs liable for the same damage, and take each to judgment, as long as he only collects from one
Partial satisfaction reduces the Πs right to recover
Settlement with some Δs before trial
Satisfies that Δs liability
Releases only that Δ
Both parties are gambling to get best deal
Subsequent Tortfeasors:
Π still cannot collect more than 100%
What would make him whole
Must determine which % of damage was done by which parties
Mary Carter Agreements:
Way to hedge bet
Π enters into a settlement with one Δ and goes to trial against the remaining Δs
The settling Δ remains a party and guarantees the Π a minimum payment
May be offset in whole or in party by an excess judgment recovered at trial
Creates tremendous incentive for the settling Δ to enter that the Π succeeds in obtaining a sizeable recovery
Motivates the Δ to assist greatly in the Πs presentation of the case
Sometimes requires the settling Δ to participate in the trial on Πs behalf
Issue: Are they void as against public policy?
Split jurisdictions
Problems:
Secrecy
Motivations behind witnesses at trial
Distorts the adversarial process
Mislead the jury
Can create the likelihood that a less culpable Δ will be hit with the full judgment
More culpable Δ will take deal and blame less culpable Δ
Solutions:
Allow agreements to be entered as evidence
Make jury aware of them
Specific jur
antive liability of joint tortfeasors and independent concurring wrongdoers who have produced indivisible harm
4 Categories:
Actors knowingly join in the performance of the tortious act(s)
Actors failed to perform a common duty owed to the Π
There is a special relationship between the parties
Although there is no concerted action, nevertheless the independent acts of several actors concur to produce indivisible harmful consequences
Duty of Care
Privity of K:
Established legal relationship
CL: original parties to K
Modern: extended to 3rd persons that can be foreseeably effected
Like proximate cause
Policy decision= question of fairness
2 Ways to Phrase a Duty (Palsgraf)
Foreseeable class of persons
General duty to all persons not to create unreasonable risk
3 Areas Where a Duty of Care is Central in Establishing Liability:
Failed to take affirmative steps to prevent or ameliorate physical harm
Emotional distress or pure economic loss
Losses in birth or conception
Nonfeasance:
Promise and breach of promise
Usually only K action
Exceptions:
Public utility or common carrier undertaken duty of serving public
Make K with no intentions of performance (tort of deceit)
Special relationship sufficient to impose a duty of care in negligence to take affirm action to protect one from harm
Generally can’t use without privity
