Torts II Outline (Fox)
I. Chapter 7: Joint Tortfeasors
Liability and Joinder of Defendants
1. Joint and Several Liability – when there are multiple defendants whose negligence combines to cause injury to the plaintiff, the defendants are jointly liable for the plaintiff’s injury and each defendant is separately liable for the whole injury. Plaintiff cannot collect more than the amount of her damages, cannot collect twice. Three situations where applied:
a. defendants act in concert – joint creation of negligent risk. May be because of inducement or encouragement (Bierczynski v. Rogers)
b. defendants fail to perform a common duty to a plaintiff
c. Special Relationship between the parties (example master/servant)
d. defendants acting independently from each other cause an indivisible harm to the plaintiff (**hardest of the three)
2. Effect of Comparative Fault under Joint and Several Liability—2 views:
a. Minority View: Comparative fault does not eliminate joint and several liability (Coney v. JLG) This is so plaintiff’s are not unnecessarily punished when a defendant is insolvent, cannot divide indivisible injuries.
b. Majority View: Rejects the theory of joint and several liability (Bartlett v. New Mexico Welding). Defendant is not liable for the entire loss to the plaintiff, only the portion he caused. Calculation of the Defendant’s percentage of fault will not be binding on other defendants not party to the litigation.
Satisfaction and Release
1. Full Judgment– When the payment of the judgment is made by one defendant, the plaintiff is barred from a further action against another who is liable for the same damages (Bundt v. Embro). Plaintiff can only collect one judgment
2. Release–Common Law Rule is a release of one tortfeasor releases all other defendants . However, the modern trend is that when a contract releases one tortfeasor but expressly reserves the right to sue others who may be liable, it does not release all other tortfeasors (Cox v. Pearl Investment)
3. Settlement– In the case of settlement with one or some of the defendants prior to trial, the settlement represents the end of that person’s percentage of liability. The plaintiff is gambling that they’re getting more from that defendant than what the court would award and the defendant is gambling that they will be paying less than the court would order them to pay. However, a few jurisdictions do not protect the settling defendant from contribution.
4. Mary Carter Agreements–agreement between П and Δ where the Δ settles but agrees to stay in the case and help the plaintiff prove her injury against the other Δs. Mary Carter Agreements may violate public policy an be declared void because they do not promote settlement, actually promote litigation (Elbaor v. Smith)Judges can cure these problems in other ways such as allowing the Mary Carter Agreement to be admitted into evidence, specific jury instructions, etc.
Contribution and Indemnity
1. Contribution – one defendant brings an action against another defendant to contribute to the payment of damages to the plaintiff. The Historical Rule is that there can be no contribution among joint tortfeasors; however, the modern trend is that when a tort is committed by the concurrent negligence of multiple Δs who are not intentional wrongdoers, the right of contribution should be enforced. (Knell v. Feltman ) and one defendant may seek contribution from others.If you’re in a comparative negligence state, the defendant will only ever be responsible for the % they are liable for, so they may not seek contribution for their percentage o
nd where a party enters a contract without any intention to perform, the party may be liable under tort for fraud or misrepresentation.
Misfeasance—Where the defendant misperforms the contract. In some circumstances, actions may be brought under tort and contract. In this situation, jurisdictions either allow the plaintiff to choose what action to bring or the court will determine the gist of the action and make the determination for the Plaintiff.
Privity of Contract
1. Privity Generally– When a contract exists, a party not in privity cannot maintain an action in tort for injuries caused by a breach of the contract (Winterbottom v. Wright)
2. Imposition of Duty–Where the nature of the thing is such that it is reasonable certain to place life and limb to peril if negligently made, it is a thing of danger and a duty may be imposed. There must be knowledge of a danger not possible but probable and there must be knowledge that in the usual course of events the danger will be shared by others than the buyer. (MacPherson v. Buick Motor Company)
3. Public Contracts—failure to perform a contract with the city does not make the company liable to all citizens. This is nonfeasance rather than misfeasance. (H.R. Moch v. Rensselaer)
4. Attorney Duty– An attorney may be liable to any person intended to benefit by his performance (beneficiary under a Will), regardless of privity. However, attorneys bound by ethical rules and conflicts of interest;
