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University of South Carolina School of Law
Owen, David G.

Torts II Outline
Spring Semester 2007
Professor Owen
I.          Chapter VII—Joint Tortfeasors (Text-356-397; Prosser-322-345)
A.    Liability and Joinder of Defendants
1.      Rules of civil procedure allow for the joinder of multiple defendants but do not require this joinder.
2.      Joint and 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. The plaintiff can collect from any one of them or any group for the full amount.
b.      The vast majority of jurisdictions that have adopted (at the time of the Coney case, 1968) comparative negligence have retained joint and several liability. Here are the reasons:
1.      A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage.
2.      Even in cases where a plaintiff is partially at fault, his culpability is not equivalent to that of a defendant. The plaintiff’s negligence relates only to a lack of due care for his own safety while the defendant’s negligence relates to a lack of due care for the safety of others; the latter is tortious, but the former is not.
3.      Elimination of joint and several liability would work a serious and unwarranted deleterious effect on the ability of an injured plaintiff to obtain adequate compensation for his injuries.
c.       Joint and several liability, if applicable, is recognized at the common law in three particular instances:
      1. Where the tortfeasors act in concert
* §876. Persons acting in concert (Tort of Civil Conspiracy)—for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
-does a tortious act in concert with the other or pursuant to a common design with him, or
-knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
                              2. Second is when defendants fail to perform a common duty to the plaintiff. Included in this category are cases involving the liability of two parties based on their relationship to each other, e.g., the liability of a master for acts of the servant, the liability of an employer for the acts of the employee, the liability of the retailer for a defect in the product.
                              3. Third is when defendants act independently to cause an indivisible harm.
d.      The traditional common law doctrine of joint and several liability for all joint tortfeasors has been changed in some way in most jurisdictions either by legislative enactments or by judicial decisions. The changes have been different depending on the states:
1.      some states do not allow application for non-economic damages like pain and suffering or emotio

  Full satisfaction of a lesser judgment will extinguish a greater one.
3.      When payment of the judgment in full is made by the judgment debtor, there is no doubt that the plaintiff is barred from a further action against another who is liable for the same damages, or from enforcement of another judgment against the other. The reasoning is to avoid double-recovery.
4.       Payments made by a tortfeasor’s liability insurance are made on the tortfeasor’s behalf and are credited against the judgment. Payments that were not made by or on behalf of the tortfeasor are not credited against the judgment and the plaintiff may double recover. 
a.       Ex. if injuries are covered under another relative’s insurance policy, then the plaintiff does not have to pay for treatment, but may still recover from the defendant. This has been modified in 25 states.
C.    Release
1.      A release is the surrender of the cause of action.
Original rule was that the release of one tortfeasor released all other tortfeasors as well. In some jurisdictions, a release of the negligent agent also released the principal who is vicariously liable for the agent’s conduct.