Torts Chapters 8-15

Front 1

Joint tortfeasors

Back 1

Two or more persons who act in concert to produce a negligent or intentional tort.

-Joint and several liability rule applies.

-Even if one of the defendants directly causes the plaintiff's injuries, all the defendants will be held liabile if the court concludes that they acted in concert b/c the tortious conduct of one encouraged the tortious behavior of the other and the combination led to the harm caused.

Front 2

Concurrent tortfeasors

Back 2

Those whose independent acts concur to cause he plaintiff's injuries.

-Joint and several liability rule applies.

Front 3

Joint Liability Rule

Back 3

Each tortfeasor is liable for entire loss or any designated portion of the loss if loss is indivisable or can be apportioned.

-Death and property damage is indivisable and nonapportionable.

-If the harm can be apportioned but can be done only with great difficulty, the burden of allocating harm will shift to the defendants. If the defendants are unable to satisfactorily prove who was responsible for each percentage of the damages, all the defendants will be held jointly and severally liable.

A matter of social policy, i.e. where society wants to assign the burden when a liable party cannot pay damages.

Front 4

Pros and Cons of Joint and Several Liability Rule

Back 4

Cons: concern that the doctrine is used to go after the deep pocket defendant (ex: a corporation) who may actually be responsible for only a minimal portion of the harm.

-Defendants should not be required to shoulder the burden or harm caused by others.

-Hurts industry b/c even if a business can pass on its tort-related costs to society as a whole through higher prices, the higher prices hurt the business.

Pros: Although society pays less, some plantiffs will not be fully compensated and when a liable party cannot pay damages, the injured plaintiff bears the loss.

Front 5

Status of Joint and Several Liability Rule

Back 5

Has been abolished or modified in some states

-Some states limit the liability of tortfeasors whose contribution to the plaintiff's damages falls below a certain percentage so that they are liable only for thheir equitable share of the damages.

Front 6

Satisfaction

Back 6

Def.: payment

Although a plaintiff can collect from all the defendants, she can collect on her judgment only once.

Front 7

Contribution (definition)

Back 7

Partial reimbursement of a tortfeasor who has paid more than her pro rata share of the damages

Front 8

Contribution (history)

Back 8

Early American courts denied contribution to joint tortfeasors. That common law rule was severely criticized and has been changed by statute or judicial decision.

Front 9

Contribution today

Back 9

Majority rule: contribution is permitted to some extent. Contribution for negligent tortfeasors is typically allowed, but is often denied for intentional tortfeasors.

Front 10

Contribution (justification)

Back 10

One tortfeasor should not be saddled with all the damages while others are allowed to escape without any responsibility.

Front 11

Joint and Several Liability Rule (basis)

Back 11

A matter of social policy, i.e. where society wants to assign the burden when a liable party cannot pay damages.

Front 12

Division of Damages in the Context of Contribution

Back 12

-Courts cannot agree

-In some jurisdictions, each defendant is required to pay an equal share of the damages

-In comparative negligence jurisdictions, the damages are generally divided in proportion to each defendant's contribution to the plaintiff's harm

Front 13

Contribution and Joint Liability

Back 13

Contribution hinges on joint liability.

-If a defendant can raise a defense that would bar recovery by the plaintiff, then the other defendants cannot seek contribution from him.

-Contribution cannot be sought from an employer if a workers' compensation statute bars the plaintiff employee from suing the employer

Front 14

Release

Back 14

Definition: A document absolving a defendant of all liability

Majority and Restatement position: All tortfeasors are released if the release is silent regarding their continuing liability.

Plaintiffs should not enter into a release without knowing the full extent of their injuries or the release may have to be set aside on the grounds of fraud or mistake.

Front 15

How a plaintiff may preserve her rights against tortfeasors

Back 15

1. Entering into a ovenant not to sue, rather than a release

2. Including a provision to that effect in the release

3. Having external evidence showing a desire to reserve one's right to sue. Purpose is to protect those who enter into such releases without legal advice but who clearly intend to reserve their rights to sue non-settling defendants

Front 16

Covenant Not to Sue (definition)

Back 16

Promise by a plaintiff not to sue a particular defendant

Front 17

Difference between Relief and Covenent not to Sue

Back 17

Release: Plaintiff surrenders her claim.

Covenant not to Sue: Plaintiff does not surrender her claim, but agrees not to sue on it. If she later reneges and decides to sue, the defendant she sues will have a counterclaim for breach of contract.

Front 18

Releases and Contribution

Back 18

A. Traditional majority rule: Non-released defendant can obtain contribution from released defendant.

Problem: Discourages defendants from settling b/c they know that they may be subject to contribution later on.

B. Nonreleased defendant cannot seek contribution, but plaintiff's claim against nonreleased defendant is reduced by the percentage of the damages that the released defendant is responsible for.

Problem: Discourages plaintiff from settling.

C. Nonreleased defendant cannot seek contribution and plaintiff's claim is unaffected by release as long as plaintiff and settling defendant negotiated in good faith and did not act in collusion with one another.

Problem: Leads to litigation regarding what is good faith.

Front 19

"Mary Carter"/"Gallagher agreements

Back 19

A agreement in which the defendant or some of the defendants agrees to guarantee the plaintiff a certain amount of money if the plaintiff loses or recovers less than a stated amount. In return, the plaintiff agrees to refund part of the defendant's payment in the event of a verdict against the defendant in excess of a stated amount.

-Funds may change hands prior to trial or may be transferred on paper alone.

-Important feature is that the contracting defendant, although still a party in the case and usually a participant at trial benefits from the size of the judgments against the other defendants.

-May also prohibit the plaintiff from settling with nonagreeing defendants for an amount less than the guaranteed amount without the agreeing defendant's consent.

Front 20

Mary Carter/Gallagher agreements (plaintiffs' advantages)

Back 20

-Pressure settling defendants, who have a substantial interest in a sizeable plaintiff's recovery, to cooperate with the plaintiff in discovery, peremptory challenges, trial tactics, witness examinations and influencing the jury.

-By having the settling defendants remain at trial, the plaintiff is relieved of dealing with the "empty chair" defense

-Able to present a more streamlined, simplified case by reducing the number of defendants

-May profit from disputes that break out during trial between the settling and the non-settling defendants as they maneuver to establish the other's liability

-Obtain security by being guaranteed payment

Front 21

Mary Carter/Gallagher agreements (settling defendants' advantages)

Back 21

-Eliminate the risk of paying more than the amount agreed upon

-Reduces the cost of litigation because the need for an aggressive defense is no longer warranted.

-Has a chance to recover all of part of what it has paid or agreed to pay b/c it has purchased part of the plaintiff's claim in essence.

-May end up paying nothing even if the jury finds substantial fault on their part

Front 22

Difference between Mary Carter and Gallagher agreements

Back 22

Mary Carter agreement: the agreement is concealed from the jury, the court and the other parties

Gallagher agreement: The terms of the agreement are fully disclosed.

The vast majority of courts tolerate these agreements, but a few states have found that the secrecy of Mary Carter agreements is contrary to public policy

-Most courts require the disclosure of such agreements, at least to the court and the non-settling parties

Front 23

Disadvantages of Mary Carter/Gallagher Agreements

Back 23

-Non-settling defendants may be faced with a lower chance of resolving the dispute

-Non-settling defendants may be faced with an increased exposure for damages

-Skew the litigation process by hiding from the jury the full extent of the allegiance between the plaintiff and the settling defendant

-Distract the parties and the court from the merits of the case

-May force attorneys into questionable ethical situations

-Can encourage settling defendants to share with the plaintiff information obtained from other defendants during joint defense efforts.

-Allow defendants to limit their liability by giving them relief from any no-contribution rule

Front 24

Indemnification (definition)

Indemnitor (definition)

Indemnitee (definition)

Back 24

Indeminification: Total acceptance of financial responsibility by one tortfeasor for another

Indemnitor: The party against whom indeminification is sought.

Indemnitee: Party seeking to be indemnified.

Front 25

Indemnification vs. Contribution

Back 25

Indemnification involves a shift of liability from one tortfeasor to another.

Contribution involves a sharing of liability.

Front 26

Situations in which Indemnification Arises

Back 26

1. Most frequently through contractual agreement in which one party agrees to indemnify another (ex: contracts between general contractors and their subcontractors)

2. The law's attempt to avoid unjust enrichment of tortfeasors in situations where a tortfeasor is not required to reimburse a tortfeasor who pays the claim resulting in the discharge of them both. (Ex: cases involving vicarious liability like between employers and employees.)

3. Defendants who are liable only because they failed to discover or prevent another's misconduct.

4. When an individual follows the directions of another and reasonable believes the directions to be lawful. (ex: a principal-agent relationship in which the agent acts under the direction of the principal or a sheriff who is instructed to seize someone's property when no lawful basis for such seizure exists)

5. When the plaintiff's injuries were aggravated by negligent treatment

Front 27

Doctrine of Equitable Indemnity

Back 27

The amount of indemnity is dependent on the relative fault of the tortfeasors.

-Inapplicable in cases in which the indemnitee's liability is purely vicarious

-Before, the indemnitor had to pay the indemnitee the full amount the indemnitee paid the plaintiff.

Front 28

Doctrine of Vicarious Liability

Back 28

An individual is held liable for the tortious acts of another because of the special relationship he holds to the tortfeasor.

-Most common relationship is between employer and employee.

-Other special relationships include employers and independent contractors, individuals involved in joint enterprise activities, and parents and children.

Front 29

Doctrine of Respondeat Superior

Back 29

An employer is vicariously liable for the acts of an employee.

Translation: "Let the person higher up answer"

-Applies to negligent torts, intentional torts and strict liability actions.

-Most common rationale: Employers should consider the expense of reimbursing those injured by their employees as part of the cost of doing business.

The employee is judgment-proof whereas the employer is the "deep-pocket"

Front 30

Employer is liable under Respondeat Superior

Back 30

1. Employee is acting within the scope and furtherance of his employement, even if the means he chooses to further his employer's business purpose are indirect or foolish or if his intent is a combination of serving his employer and meeting his personal needs.

2. Employee commits intentional tort reasonably connected to job as long as employee's acts are not driven by some purely personal motive, such as vengeance.

3. Employee's deviation from business purpose is reasonable foreseeable because employers should be liable for those things that can generally be anticipated as one of the risks of doing business. The employee's deviation must be slight in terms of time and distance.

4. Employee commits acts expressly forbidden by employer but within scope of employment.

5. Employee negligently delegates his or her rights and authority to another without the employer's authorization. Negligent delegation occurs when the employee knew or should have known that the individual lacked skills and would be unable to safely complete the job.

Front 31

Employer is not liable under Respondeat Superior if:

Back 31

1. Employee goes on "frolic" or "detour"

2. Employee is traveling to or from work.

Front 32

Employers-Independent Contractors

Back 32

Generally, one who hires an independent contractor will not be held vicariously liable for the tortious acts of that person. Exceptions exist, however.

Front 33

Employee v. Independent Contractor

Back 33

Employee: Someone under the control of the person who hired him.

Independent Contractor: Hired to produce certain results but is considered her own boss. Works at her own pace in her own way under her own supervision.

Front 34

Factors in determining whether an Employer-Employee Relationship Exists

Back 34

1. The extent of control exercised by the master over details of the work and the degree of supervision

2. The distinct nature of the worker's business

3. Specialization or skilled occupation

4. Materials and place of work

5. Duration of employment

6. Method of payment

7. Relationship of work done to the regular business of the employer

8. Belief of the parties (how a relationship is labeled is not dispositive in classifying the relationship)

Front 35

Exceptions to Nonliability Rule for Independent Contractors

Back 35

1. Employer is negligent in dealing with the independent contractor (ex: the employer hires someone that he knows will not perform the work safely or fails to inspect work after it's done)

2. Employer delegates nondelegable duty to independent contractor. Rationale is to prevent employers from avoiding liability by hiring independent contractors to carry out their responsibilities.

3. Employer retained control over the work. Control must go beyond retaining control over the premises or supervising the sequence of the work. The control must relate to the actual manner in which the work performed by the contractor is done or the employer must have actual control over the details of how the work is done. Employer remains subject to liability for physical harm to others. Adopted from Restatement.

4. Employer hires independent contractor to conduct an activity involving unusual risks that are recognizable in advance.

5. Employer contracts for performance of an illegal act.

6. Doctors are liable for negligent acts of those under their control because a physician acting in a supervisory role over other medical personnel is the "captain of the ship" (doctrine has been abolished in some jurisdictions and limited to acts committed during surgery in others)

Front 36

Bailor (definition)

Bailee (definition)

Back 36

Bailor: One who is temporaily entrusted with the custody of goods.

Bailor: One who entrusts her goods to the temporary custody of another.

Front 37

Bailments (general rule)

Back 37

Question is whether a bailor should be liable for the negligence of a bailee.

Bailors are not vicariously liable for the acts of a bailee.

Front 38

Exceptions to Bailor Nonliability Rule

Back 38

1. Bailor negligently entrusts property to one he knows or should know will endanger others.

2. In some states, the mere presence of owner in vehicle makes owner vicariously liable for acts of driver. Reasoning is that owners are more likely to be able to pay for damages than those to whom they loan their car and that owners, not drivers, are expected to carry insurance. Some courts have made the presumption of vicarious liability a rebuttable one and others have negated the presumption altogether by treating the nondriving owner as though she were a guest in her own car. The courts will not impute the driver's negligence to the owner if the owner is not present.

3. Family Purpose Doctrine

4. Automobile Consent Statutes

5. Joint Enterprise Doctrine

Front 39

Family-Purpose Doctrine

Back 39

-Assumption is that if a driver is a member of the family's household and has permission to use the car, he is carrying out a "family purpose," making the family head, typically the most financially responsible person in the family, vicariously liable, even if the driver is using the vehicle on his own behalf.

-In effedct in less than half of all states today and complicated by a host of exceptions

-Arises most often in cases in which a minor is relegated to driving a particular vehicle because a vehicle driven by a minor will often have the minimum insurance coverage allowed by law and much less than his parents' coverage, so plaintiffs are motivated to turn to the parents for relief.

Front 40

Automobile Consent Statutes

Back 40

Statutes that make the owner vicariously liable for negligent acts committed by anyone using the car with the owner's permission.

-If the bailee exceeds the scope of the owner's consent, the bailor is generally not vicariously liable unless the deviation is a relatively minor one.

-If the bailee lends the car to a third, person, courts are divided in terms of the owner's liability. Courts are less likely to find liability when the bailee is not in the vehicle at the time of the accident.

Front 41

Omnibus Clause

Back 41

Clauses in most auto liability insurance policies that extend insurance coverage to members of the insured's household and to anyone using the car with the owner's permission as long as the use falls within the scope of the permission given.

-Have substantially reduced the need for automobile-consent statutes b/c plaintiffs have no incentive to find liability on the part of the owner, at least up to the policy limits.

Front 42

Joint Enterprise Elements

Back 42

1. An express or implied agreement among members of a group

2. A common purpose or goal to be carried out by the group

3. A common pecuniary interest in the purpose or goal
-the mere sharing of expenses is not sufficient.

4. An equal right of each member to control the direction of the enterprise
-each person need not have a right to arbitrarily steer the car at any time, but each must have an equal say in what route will be followed, how fast the car will travel, etc.

-Once these elements are met, each joint venturer is vicariously liable for the negligence of the others.

-Almost always arises in the context of automobile cases. Typically the plaintiff is a passenger in another car and wishes to recover against a passenger in the joint venturer's vehicle (usually the deep pocket)

Front 43

Imputed Neglience (definition)

Back 43

Negligence that is charged or attributed to another.

Front 44

Imputed Contributory Negligence

Back 44

Traditional common law rule: The negligence of a driver was imputed to the passengers so an injured passenger could not sue the other driver or the driver of the vehicle in which she was riding b/c of the contributory negligence imputed to him.

Modern rule: Contributory negligence is only imputed if the relationship is such that the plaintiff would be vicariously liable if she were a defendant (contributory negligence cannot be imputed unless negligence could also be imputed)

Rationale is that a passenger basically has no control over the acts of the driver so she should not be saddled with responsibility for the driver's negligence.

-In most states the negligence of one spouse is not imputed to the other and the negligence of parents is not imputed to their children and vice versa.

-Under the modern rule, the negligence of a bailee is generally not imputed to the bailor, even when the bailor would be liable as a defendant because of an automobile-consent statute.

-In derivative claims, the contributory negligence of the injured party is imputed to the plaintiff because the plaintiff's claim is derived from and dependent on another person's injury.

Front 45

Parental Liability

Back 45

-Some states have enacted statutes that hold parents liable for the tortious acts of their children.

-Torts can be either personal injury or property damage, but they must be intentional.

-Most statutes have damage ceilings.

-A parent may be vicariously liable if she encourages the commission of a tortious act or accepts benefits from it.

-A parent who negligently entrusts a dangerous object to a child or who fails to protect others from dangerous tendencies of the child will be held liable.

Front 46

Strict Liability (definition

Back 46

Liability imposed without a showing of intent or negligence

-Applicable even when a defendant is neither negligent, has any intent of wrongdoing, or adhered to an objective standard of care. Lack of fault distinguishes strict liabiity from negligence.

-Defenses can be raised to strict liability.

-Applicable in situations involving abormally dangerous ctivities, dangerous animals, and product liability.

Front 47

Abnormally Dangerous Activities

Back 47

Activity for which a defendant is strictly liabile if someone is injured; characterized as an activity having a high degree of risk of serious harm that cannot be eliminated with due care and whose value is outweighed by its dangerous attributes