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Honor Among Thieves: Basic Principles of Contribution


Honor Among Thieves: Basic Principles of Contribution


The last chapter explored the common law rules governing the liability of joint tortfeasors. As that discussion indicates, where joint and several liability applies, each tortfeasor who contributed to an indivisible injury is fully liable for the plaintiff’s damages. This reflects the fundamental policy choice underlying joint and several liability, that the plaintiff should be fully compensated as long as at least one of the tortfeasors is able to pay the judgment.

However, the rule of joint and several liability can lead to unfair results. Suppose that Nash negligently left his bicycle in the road, and Benchley, not looking where he was going, drove into it, lost control of the car, and injured Twain. Under the common law, Twain could sue either Nash or Benchley for his injuries. The plaintiff was in control, and could choose to impose the full loss on either of the joint tortfeasors. If Benchley was his brother-in-law, Twain could keep peace in the family by suing Nash instead. If he sued Nash and recovered, Nash would have to pay Twain’s full damages, and Benchley would pay nothing, even if he also caused the accident.

Of course, in many cases the plaintiff took the prudent course of suing all possible defendants, since he might only prove that one was negligent, or that the negligence of one had caused the injury. But even if Twain sued both Nash and Benchley in our example, and recovered judgment against both, he could still choose to collect the judgment from either one. So he could still target Nash and let Benchley off the hook entirely if Nash was able to pay.

For many years, courts held that if Nash did pay, he had no right to force Benchley to “contribute to the judgment,” that is, to reimburse him for part of the damages he had paid to Twain. The common law, with its somewhat moralistic view of these matters, had no problem with the fact that Nash ended up paying the entire judgment. Nash was a wrongdoer, had caused Twain’s injuries, and could fairly be made to pay. Justice was done between the plaintiff and the defendant, and that was that. Nash would not be heard to complain that Benchley had gotten off scot free, so long as Nash had actually caused the damages he was forced to pay.

Although the common law rule denying contribution from joint tort-feasors was widely applied for many years, it was also widely criticized. Prosser sums up the attack with his usual incisiveness:

There is an obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff’s whim or spite, or the plaintiff’s collusion with the other wrongdoer, while the latter goes scot free.

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