Torts II Outline

TORTS 2
OUTLINE
I.        JOINT AND SEVERAL TORTFEASORS
a.       Definitions:
                                                               i.      Joint:
1.       Liability is shared by more than one defendant.
2.       Each is liable for the full amount
                                                              ii.      Several
1.       Liability can be divided among more than one D
2.       D is liable only for their respective obligations
                                                            iii.      Joint and several
1.       P can pursue claim against anyone of the D’s
2.       All liability can be obtained from one D
                                                            iv.      Indivisible
1.       Can’t be divided.
2.       Death is always indivisible
                                                             v.      Common Law:
1.       When two or more tortfeasors are jointly and severally liable, each defendant is subject to liability for all P’s damages. P can obtain a judgment against all D’s and then enforce it against any one of them, or partly against one and partly against another.
2.       The release of one TF when J&S releases them all.
                                                            vi.      Covenant not to sue
1.       This is an agreement not to sue a party
2.       This doesn’t release the right to sue, simply states I won’t. This is important to get around the common law rule that to release one is to release all
3.       These are K’s and subject to being set aside per K rules. However, if the mistake goes to the consequences for the injury and not the nature, then the court will likely not set it aside
b.       TRADITIONAL RULES
                                                               i.      Apportionment Required: Except for cases of concerted action and vicarious liability, apportionment is required if the harms done by two or more tortfeasors were separable or divisible as where A caused the P’s broken arm and B caused the P’s broken leg
                                                              ii.      Indivisible Injury: If the injury was indivisible in nature (a death or a single broken arm for example), then each tortfeasor who contributed proximately to that injury was liable for the entire judgment, although the plaintiff could not collect more than one full recovery.   . . . The essence of the rule is that each tortfeasor is liable in full for an indivisible injury.
                                                            iii.      Actions in concert, vicarious liability: Whether or not the injury was indivisible, if the defendants acted in concert, or one defendant acted tortuously and the other was vicariously liable each defendant was liable for the entire injury.
                                                            iv.      Contribution: Apportionment is completed under the rule that when one tortfeasor paid more than his appropriate share of liability, he could ordinarily obtain contribution from the other tortfeasors, a rule generally followed in the latter part of the 20th century.
1.       The contribution issue only arises in cases of joint and several liability.
2.       When two or more persons are or may be liable for the same harm and one of them discharges the liability of another by settlement or discharge of judgment, the person discharging the liability is entitled to recover contribution from the other, unless the other previously had a valid settlement and release from the plaintiff.
3.       A person entitled to recover contribution may recover no more than the amount paid to the plaintiff in excess of the person’s comparative share of responsibility.
4.       Note:
a.       Someone immune from suit is also immune from paying contribution
b.       Someone who has settled is immune from paying contribution
c.        Employers are immune (workers comp laws prevent)
d.       Relationship can give immunity (husband/wife, parent/child)
e.        In general, an intentional TF is cannot get contribution (he was really bad). This is because contribution and indemnity are equitable remedies and the court can’t allow an intentional wrongdoer to seek these kinds of remedies.
f.        Most jurisdictions allocate based on percentage fault.
5.       Example of Contribution
a.       If P is 20% at fault, D1 is 30% at fault and D2 is 50% at fault, D1 and D2 would be responsible to pay 80% of the total damages, and if one pays more than his share he can collect under contribution from the other. But if the P goes after only one of the D’s, they are liable for the full amount under joint and several liability and D1 must pay the full amount and try to collect his overpay from D2
                                                             v.      Indemnity – This is a full refund of monies paid out by a vicariously liable party, generally will only apply when one party is vicariously liable.
1.       Applies in respondeat superior
2.       Applies when employer pays the judgment that was leveled against the employee
3.       Applies when a retailer is held liable for product defects by manufacture
c.        PERSONS ACTING IN CONCERT:
                                                               i.      What does it mean to be in concert: See Biercyznski v Rogers for conditions
                                                              ii.      For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
1.       Does a tortious act in concert with the other or pursuant to a common design with him, OR
2.       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
3.       Gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
                                                            iii.      Liability – Concert of Action: When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of the comparative responsibility assigned to each person engaged.
d.       JOINT AND SEVERAL LIABILITY:          If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, the law of the applicable jurisdiction determines whether those persons are jointly and severally liable, severally liable, or liable under some hybrid of joint and several and several liability.
                                                               i.      Procedurally: When joint and several liability exists;
1.       A defendant can bring in another defendant into the same suit, OR
2.       A defendant can bring a separate action after the case for contribution
e.        ALTERNATIVES TO TRADITIONAL JOINT AND SEVERAL LIABILITY (INDIVISIBLE INJURY)
                                                               i.      Approximately 11 jurisdictions have retained joint and several liability even after adopting comparative fault
                                                              ii.      Approximately 14 states apply only several liability to multiple defendants who have caused indivisible harm.
                                                            iii.      The remaining tracks reflect jurisdictions that have come down somewhere in the middle.
1.       One group imposes joint and several liability, subject to reallocation of unenforceable shares to all parties in proportion to their share of comparative responsibility;
2.       Another group imposes joint and several liability for plaintiff’s economic damages, but only several liability for non-economic damages;
3.       Another group imposes joint and several liability only against defendants who are assigned a percentage of comparative responsibility equal to or in excess of the legal threshold.   (Among states