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Honor Among Thieves: Basic Principles of Contribution

INTRODUCTION

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.

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