Chapter 7

JOINT TORTFEASORS

This chapter deals with situations in which more than one defendant is liable for some or all of the harm suffered by the plaintiff. The key concepts in this chapter are:

• Joint liability:  If more than one person is a proximate cause of the plaintiff’s harm, and the harm is “indivisible,” each defendant is liable for the entire harm. The liability in this situation is said to be “ joint-and-several.”
• Contribution:  A defendant who has paid to the plaintiff more than his pro rata share of damages will usually be able to recover partial reimbursement from the other defendants. Such partial reimbursement is referred to as “contribution.”
• Indemnity:  Sometimes, courts will shift the entire financial responsibility for the tort from one defendant to the other (even though both are jointly and severally liable). This is done by the doctrine of indemnity.

I. JOINT LIABILITY

A. Joint liability for concurrent wrongdoing:  The chapter on proximate cause was replete with cases in which more than one person behaved negligently, or otherwise wrongfully. When this is the situation, may the plaintiff recover against all of them, and if so, in what amounts relative to her overall injury?

1. Joint liability for indivisible result (traditional rule):  First, it is necessary to determine whether each of the defendants was a proximate cause of the plaintiff’s harm. (Recall that, as stated supra, p. 144, the plaintiff’s harm may have more than one proximate cause, i.e., two or more events which substantially contributed to it, and which are so closely related to it as to give rise to liability.) If more than one person is a proximate cause of the plaintiff’s harm, and the harm is indivisible, then under the traditional common-law rule, each defendant is liable for the entire harm. The liability is said to be “ joint-and-several.”

a. Consequence:  Therefore, under this rule the plaintiff may sue and collect from either of them or both of them. (But of course she is only entitled to recover a sum equal to her overall damages – i.e., she cannot collect twice.)

Example:  D1 and D2, each driving her own car, approach each other at an intersection. Each has a stop sign, and each runs that stop sign. The two cars collide. The resulting force pushes D2’s car onto the sidewalk, where it hits P, a pedestrian. P suffers $100,000 in damages. In a jurisdiction following the traditional rule of joint-and-several liability, P will be entitled to a judgment against both D1 and D2 for $100,000. Then, P can recover the full judgment from D1, the full judgment from D2, or part from D1 and part from D2, all at P’s sole option. (However, P may not recover a total of more than $100,000.) This is true even if the trier fact concludes that D1 was much more at fault than D2.