Chapter Five: Cause in fact 2' Joint and Several Liability

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Chapter Five Cause in fact 2. Joint and
Several Liability
Vicki was seriously injured when her car was
struck by an oncoming vehicle on an unlit,
country road. According to the driver of the
car, who was seventeen at the time of the
accident, he was driving down the seemingly
deserted road when his passenger, who was
fifteen, dared him to turn off the headlights.
Driver turned off the lights. Just then, a
horse, who had apparently wandered away from
Farmers farm, stepped onto the road right in
front of the car. Driver swerved across the
center line in order to avoid the horse. Vicki,
whose car was just rounding a curve, did not have
time to avoid Drivers car, and they collided.
According to Farmer, the horse was in her stall
when he checked on her an hour before the
accident, and the barn door was closed.
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Chapter Five Cause in fact 2. Joint and
Several Liability
How joint and several liability works If
defendants are jointly and severally liable, each
defendant is liable for the entire judgment,
although plaintiff can only recover the judgment
once. Allocation of liability is left to the
tortfeasors -- rights of contribution --
rights of indemnity Effect Risk of insolvency
is placed on the tortfeasors!
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Chapter Five Cause in fact 2. Joint and
Several Liability
How several liability works If defendants are
severally liable, each defendant is liable only
for the portion of the judgment that is
attributable to his fault. Its up to the
plaintiff to bring all potential defendants into
the lawsuit. The risk of insolvency is on the
plaintiff!
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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants jointly and
  severally liable?
• When the negligence of each is a but for cause
  of the injury, the negligent acts combine to
  cause a single injury -- concurrent tortfeasors.
  

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants not jointly and
  severally liable?
• When the negligence of each causes a distinct
  injury to the plaintiff
• distinct harms
• successive injuries
• apportionable injuries

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants jointly and
  severally liable?
• When the negligence of each is a but for cause of
  the injury, the negligent acts combine to cause a
  single injury -- concurrent tortfeasors.
• When the negligence of each is a but for cause of
  some injury to the plaintiff, and the defendants
  fail to meet the burden of showing a basis for
  apportionment. (no basis for apportionment)

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Chapter Five Cause in fact 2. Joint and
Several Liability

• Statutory reforms
• Abolish
• Abolish where defendant is less than, for
  example, 50 at fault
• Abolish for non-economic damages
• Abolish where plaintiff himself / herself is at
  fault
• Abolish in some areas, retain in others
• For our purposes the Uniform Comparative Fault
  Act (yet to come)

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants jointly and
  severally liable?
• When the negligence of each is a but for cause of
  the injury, the negligent acts combine to cause a
  single injury -- concurrent tortfeasors.
• When the negligence of each is a but for cause of
  some injury to the plaintiff, and the defendants
  fail to meet the burden of showing a basis for
  apportionment. (no basis for apportionment)
• When they act in pursuance of a common plan to
  commit a tort -- acting in concert.

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Chapter 5 Cause in Fact (3) Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable? Should we reconsider the result in the
high school marching band parents food
poisoning hypothetical?
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Chapter 5 Cause in Fact (3) Multiple
Defendants
When are multiple defendants jointly and
severally liable? Alternative liability When
two (or more?) defendants, (all whom are before
the court?), are negligent, but it is uncertain
which one caused the injury, each defendant is
jointly and severally liable for the entire harm
unless the defendant can show his act did not
cause the harm.
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Chapter Five Cause in fact (3) Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors (single harm, as opposed
  to divisible,
• successive or apportionable harms)
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• multiple sufficient causes (twin-fires)

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Chapter 5 Cause in fact (3) Multiple defendants
Hymowitz v. Eli Lilly Market Share
liability Where 1) manufacturers act in a
parallel manner 2) to produce an identical,
generic product 3) which causes injury many years
later 4) and the legislature has created an
expectation that recovery will be available by
creating an exception to the statute of
limitations the defendant may be liable even
though the plaintiff cannot show which
manufacturer produced the product that harmed her.
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Chapter 5 Cause in fact (3) Multiple defendants
Is liability joint or several? What is the
basis for apportionment? National market share
or local market share? Can the defendant prove
out by showing It did not manufacture DES for
pregnancy use? It did not manufacture the DES
the plaintiff took?
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Chapter 5 Cause in fact (3) Multiple defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario
• market share liability, in some jurisdictions

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Assignments

Tuesday 369-389 n. 6 Wednesday 425-437 Thursd
ay 401-415 Friday 416-425, 437-439