Torts Ii

Front 1

Joint Tortfesors:

Back 1

Simply means that the D's both contributed to a single, indivisible injury to the P and they are each fully liable for that injury.

Front 2

Jointly and Severally Liable

Back 2

this means that each is liable for the full amount of the P's damages, and may be sued for thos damages eithe rsingly or along with the other tortfeasor

Front 3

Joint Tortfesors:

P's contribution in negligence

Less than or not as great as rule

Back 3

Mean P’s recovers as long as P’s percentage is less than the D.

Front 4

Joint Tortfesors:

P's contribution in negligence


Not Greater Than

Back 4

Mean P recovers as long as the P’s percentage is not greater than

Front 5

Example of Joint Tortfeasors

Bierczynski v. Rogers

Back 5

• Issue of concurrent negligenct. Each was liable for the damages because participation in motor vehicle race on public highway. He is jointly or severally liable. He is a joint tort feasor in this case because a true joint tortfeasor are parties who agree to engage in a court of tortuous conduct.
• They can collect the entire amount from either Bierczynski or Rogers. Or can collect half from each.
• Rationale- it ensures recovery, we create rules that favor the party that has not done anything wrong. It come from our understanding of the common law rule.
• 1- ensures recovery, 2- innocent plantiff, 3- right to contribution, 4- deter tortuous conduct

Front 6

What are the three types of factual situations in whcih joint and several liability is imposed?

Back 6

1. The Bierczynski case which says that the actors acted in concert.
A. Three D's acting in concert but each committed a different tort to him when they beat him up.. each were hedl jointly liable.
B. The assailant attacks and beats the P. The brother takes no part but encourages him.

2. The second is when the defendant fails to performn a common duty to the P. ex. the liability of a master for a servant, employeer for an employee, seller for a defect in a product.

3. The third category is that involving defendants who acted independently to cause and indivisible harm. sharing of the common duty trigger- example in respondiante superior when a common duty is owed.

Front 7

Does the the adoption of comparative fault Doctrine eliminate joint and several liability? (Majority)Coney v. J.L.G

Back 7

The common law doctrine of joint and several liability hold joint tortfeasors responsible for the P’s entire injury, allowing P to pursue all, some, or one of the tortfeasors responsible for his injury for the full amount of damages.
• We don’t have a innocent P anymore. Does it eliminate joint and several liability? No, the other rationale carries the day. (1) the doctrine of comparative negligence is applicable to actions or claims seeking recovery under products liability or strict liability in tort theories; (2) the doctrine of comparative negligence does not eliminate joint and several liability; and (3) the retention of joint and several liability and a system of comparative negligence or fault does not deny equal protection of the law in causes of action arising before March 1, 1978.
Majority Opinion

Front 8

Does the the adoption of comparative fault Doctrine eliminate joint and several liability? (Minority)Barlett v. New Mexico Welding Supply

Back 8

• There was a car accident involving three people and one of the people is unknown. We don’t know the identity of the party that assisted in the injury
• New mexico comparative fault has allowed us to do away with joint several liability when there is a contribution (this is the minority decision) Coney v. J.L.G is the majority opinion.
• Joint and several liability is not to be retained in “our pure comparative negligence system on a theory of one indivisible wrong. The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New Mexico.
• You are only responsible for your share.

Front 9

Satisfaction and Release:

Who can we sue?

Back 9

• The rules of civ pro allow the P to figure out who they want to sue.
• Can we sue everyone that we want legally but we don’t have to.
• You can only be satisfied once. So you should not be able to sue more than once. If you have already recovered for your medical bills and lost wages and received full payment and judgement means that you have been satisfied. You can’t so sue someone and seek recovery of the same thing.
• Satisfaction assumes that you have been satisfied already.
• However, what typically happens in a lawsuit ends in a settlement.

Front 10

Satisfaction and Release:

Can the P seek contribution from the other D's and the effect of settlement? There are two opinions

Back 10

It is not unusual for a P to settle with one tortfeasor and proceed to trial against the other.
Suppose T settles with N for 2,000 realsing his claim against N only, and then recovers a judgment against Benchley for 20,000. What is the effect of the settlement with Twaon on B's right to recover contribution from Nash?


Pro Rata-says that when you settle you extinquish that parties percentage and that percentage it satisfied (Majority rule)
Nash settled for 2,000 and T would be viewed ass selling half of his cause of action. Thus, he could only recover from B on the other half. If N settled for 2,000 and T later recovered 20,000 and half of the claims is 10,000 from B. He would receive only 12,000 in total.

In contrast under the dollar approach (pro tanto) minority view he would bet 18,000 (the judgement amount minus the amount of the settlement) from Benchley and 20,000 altogether. • Why does this not apply to the collateral source rule? This is not a third party or outside party payment

Front 11

Pro Rata v. Pro Tanto

Back 11

For example, assume the following special verdict results:
P 10
D settled 30 (paid $20, 000)
D who didn't settle 60
In a pro rate jurisdiction (majority) the non-settling defendant would be responsible for $60,000 dollars as the other 40 percent would be settled by plaintiff's contributory negligence (10%) and the settling defendants payment (30%).
In a pro tanto jurisdiction the non-settling defendant would get credit for the amount plaintiff has already received (($20,000) but would have to come up with $70,000 (difference between $90,000 and $20,000)
Again:
pro tanto=credit for amount.
pro rata= satisfaction of percent fault.

Front 12

Contribution and Indeminity:

Can a third party ask for a contribution? Can the tortfeasor have the right to seek contribution?

Back 12

In action for injuries sustained by passenger in taxicab which collided with third party defendant's automobile, taxicab owner against whom passenger recovered judgment was not to be denied contribution against third party defendant because passenger neither asked for nor obtained judgment against such defendant where taxicab owner served a summons and complaint upon third party defendant in accordance with Federal Rule 14(a) so that such defendant was bound by adjudication of the taxicab owner's liability to the plaintiff, it being immaterial that passenger did not amend her complaint to seek judgment against third party defendant after taxicab owner had made him such. Yes

Front 13

Contribution and Indeminity:

Can you hold someone liable even if they are not directly liable?

Back 13

It depends the jurisdiction. In Non-absorbtion states they say sorry P you can not recover. In absorption states they say that you can but the percentage has to be aborbed.

Front 14

Example of Non-Absorbtion states:

Yellow Cab Co. of Dc v. Dreslin

Back 14

Suit by Mrs. John C. Dreslin and others against Yellow Cab Company of D.C., Inc., for injuries sustained in collision between a taxicab and automobile driven by named plaintiff's husband, wherein defendant filed a cross-claim against John C. Dreslin for damages to taxicab and for contribution for any sums recovered by plaintiffs against defendant. From a declaratory judgment of the United States District Court for the District of Columbia disallowing defendant's claim for contribution upon the judgment against it in favor of Mrs. Dreslin, defendant appealed. The Court of Appeals, Proctor, Circuit Judge, held that since husband was not liable in tort to his wife, there was no joint liability between him and defendant as to wife and no right of contribution could attach.

Cab company was not entitled to contribution from plaintiff's husband upon a judgment against cab company for injuries sustained by plaintiff in a collision caused by concurrent negligence of cab driver and plaintiff's husband, since the right of contribution arises from a joint liability and, as husband was not liable in tort to his wife, there was no joint liability between him and cab company as to her.

Front 15

Seeking Contribution:

Slocum v. Donahue

Back 15

Parents of minor who was killed when he was struck by automobile after its driver lost control of vehicle sued driver, who asserted third-party claim against automobile manufacturer. After parents entered settlement with manufacturer in which they released all claims against manufacturer for $150,000, the Superior Court, Charles T. Spurlock, J., granted summary judgment to manufacturer on claims by driver. Driver appealed, and the Appeals Court held that: (1) manufacturer's settlement was entered in good faith, and thus extinguished contribution claims; (2) driver was not entitled to indemnity against manufacturer; and (3) failure to make explanatory findings did not warrant reversal of judgment dismissing claims against manufacturer.

Front 16

Seeking Contribution:

Statutes proviging for no contribution is based on on the 1955 Uniform Act. once you have paid your share far you can get fair contribution

Back 16

Not all jurisdiction protect a settling D from contribution: some permit the nonsettling D to seek contribuition from the settling D.

Front 17

Can you assume good faith by virtue of a settlement?

Back 17

Yes. A settlement with the P protect the settleing ED from a contribution claim brought by a nonsettling D, as long as the settlement is in good faith. (Michigan)

Front 18

What is Indemnity?

Back 18

Traditionally, while contribution allowed a tortfeasor to be partially reimbursed for money paind in judgement or settlement, indemnity was avialable to shift the entire cost from a tortfeasor whose liability was not based on his own conduct buty whose conducty was imposed by the law because of his relationship with the tortfeasor whose wrongful conduct would give rise to a cause of action for indemnity, or full reimbursement for the liability to the injured party. Indeminity protects you and holds you harmless. Contribution asks you to pay for their responsibility.

Front 19

Apportionment of Damages

Back 19

• You are required to take the plantiff as you find them. It was not a foreseeable consequence that this person would. Too bad you take them as you find them.
• The P has to prove that it was exasterbated inorder to recover.
• General rules one injured by the negligence of another is entitled to recover the damages proximately caued by the act of the tortfeasor, and the burden of proof is upon the P to establishe that the damages he seeks were proximately caused by the geligence of the D.

Front 20

Apportionment of Damages:

Example of

Bruckman v. Pena

Back 20

Personal injury action by plaintiff who also suffered injury in subsequent accident. The District Court of the City and County of Denver, John Brooks, Jr., J., rendered judgment for plaintiffs, and defendants brought error. The Court of Appeals, Dwyer, J., held that instruction stating that if evidence did not permit apportionment of damages between two accidents, defendants were liable for entire disability, was erroneous as placing burden of proof on defendants and permitting recovery for injury for which defendants were not responsible.
Reversed and remanded for new trial on issues of damages alone.