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Joint and Several Liability: The Classic Rules

Here is another example to drive home the point. Watt, a worker on a construction site, negligently leaves an excavation unguarded, and Planck, an oblivious jogger, bumps Curie and knocks her into it, breaking her leg. Here again, Curie would have negligence claims against both Watt and Planck for her injuries, since the negligence of each defendant contributed to causing the harm. Watt and Planck are, in the common parlance, joint tortfeasors, each fully liable for Curie’s injury.

It is often said that the defendants in cases like the Fermi and Curie examples are “jointly and severally liable” for the injury. This means that each is liable for the full amount of the plaintiff’s damages, and may be sued for those damages either singly or along with the other tortfeasors. If the plaintiff prevails in an action against joint tortfeasors, she is entitled to a judgment against each for her full damages. For example, if the jury found both Joule and Edison liable for Fermi’s injury, and found Fermi’s damages to be $27,000, the court would enter judgment against both Joule and Edison for $27,000. Fermi would obtain a judgment like that in Figure 21-1, on p. 478. Alternatively, had she sued Fermi alone she would have gotten a judgment against him for the full $27,000.

Joint and several liability did not apply, however, if the defendants caused separate damages. Suppose that Farmer Jones and Farmer Smith both decided to burn the stubble off their fields on a windy day, and both fires got away. If Farmer Jones’s fire burned two acres on the west side of Doe’s property, and Farmer Smith’s burned five acres on the east side, it stands to reason that Jones would pay for the two-acre fire but not for the five-acre fire caused by Smith. Jones’s negligence caused the two-acre fire, but (assuming that Jones and Smith acted independently) was not a “but for” cause of the five-acre fire, so Jones was not liable for it. The same was true for Smith, who was liable for the five-acre fire but not the two-acre blaze. In such cases, where the damages could rationally be apportioned separately to the tortfeasors, the courts would do so. Restatement (Second) of Torts §881.


Under the judgment in Figure 21-1 (p. 478), Fermi would be entitled to collect his $27,000 from either Edison or Joule. Of course, he could not get $27,000 from each of them, for a total of $54,000. The plaintiff was entitled to one full “satisfaction” of his damages from joint tortfeasors, but no more. Thus, if Joule paid Fermi $27,000, the judgment was deemed satisfied, and Fermi could not collect any additional amount from Edison. Similarly, if he obtained a judgment against Edison and Edison paid, Fermi could not collect from Joule for the same injuries. Dobbs, Hayden & Bublick §488.

Suppose, however, that Fermi sued Edison alone and obtained a judgment for $27,000, but Edison was unable to satisfy the judgment. Early cases held that once Fermi obtained a judgment against one tortfeasor, the judgment extinguished his claim against all the tortfeasors, so that he could not sue Joule separately if Edison failed to pay. The theory was that the plaintiff had a single, indivisible claim, which could only be sued upon once. Dobbs, Hayden & Bublick §491. However, the courts later came around to the position that, as long as Fermi’s judgment had not been satisfied, he was entitled to sue Joule for the same injury, and try to collect from him instead. Or, if Edison had a $10,000 insurance policy, and paid that much, Fermi could seek a separate judgment against Joule and collect the remaining $17,000 from him.

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