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Joint and Several Liability: The Classic Rules


Other issues arose if Fermi settled his claim against one tortfeasor and then sued the other. Suppose, for example, that Fermi settled with Joule, agreeing to release his tort claim against Joule for $13,000. When the plaintiff settled with a tortfeasor, he would ordinarily give that defendant a “release” in exchange for payment of the settlement amount. The release would waive all of the plaintiff’s claims against that defendant arising out of a particular accident or dispute. Figure 21-2 is a simple example of a release.

A Practical Question

1.   If Joule, as a joint tortfeasor, is fully liable for the entire injury to Fermi, and the likely damages are close to $30,000, why would Fermi let him off the hook for $13,000? (Explanations begin on p. 485.)


At common law, giving one tortfeasor a release was a tricky business, because the early cases held that a release to one tortfeasor released the plaintiff’s claims against all joint tortfeasors. If Fermi gave a release to Joule, he was deemed to have released Edison, Watt, and any other possible defendants as well, regardless of the amount Joule paid for the release. Historically, there were several reasons for the rule. First, the plaintiff was considered to have a single cause of action for her injuries, even though each defendant was fully liable on that cause of action. Cooper v. Robert Hall Clothes, Inc., 390 N.E.2d 155, 157 (Ind. 1979); Dobbs, Hayden & Bublick §491. By giving a release to any tortfeasor, Fermi relinquished the cause of action itself. Thus, he was barred from bringing a subsequent suit on that cause of action against another tortfeasor.

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