Allocation Among Tortfeasors
Joint Tortfeasors.
It is not uncommon for a plaintiff who has suffered physical harm to claim against two or more tortfeasors,usually simultaneously.This was not always so.Recall that earlier rules of tort law were oriented toward placing responsibility on a single wrongdoer.And under older rules of procedure,joinder of more than one defendant in a single tort action was possible only where all such defendants acted in concert in committing the tort,either directly (where each did a tortious act pursuant to a common plan) or where one was vicariously responsible for the tortious act of another under principles of conspiracy of joint enterprise such that a mutual agency existed.
Tort law now recognizes that the negligence (or other wrongful conduct) of more than one person,each acting independently and without a common design,may be concurrent causes of plaintiff’s injury for which all may be subject to liability.For example,a passenger in an automobile may be injured by the combined negligence of her driver and the driver of another vehicle.There may be violation of a common duty;the manufacturer,wholesaler and retailer of a defective product may all be liable to a user injured by it.Or one person may be directly liable and another vicariously liable for the same act,as in the case of a tort committed by an employee in the course of his employment.
Modern rules of civil procedure generally permit joinder in a single action of all defendants whose liability to plaintiff arises out of a single event or transaction,or even out of closely related events.But irrespective of whether such persons are sued separately or together or are not even sued at all,multiple tort liability creates issues as to how the plaintiff’s damages are to be allocated among the different persons liable for them.
Divisible Damages.
It sometimes happens that different persons may be liable for separate,identifiable parts of plaintiff’s harm.For example,two hunters in separate hunting parties each negligently fire at the same time;one wounds plaintiff in the arm,the other in the leg.Absent concert of action,each is liable only for the harm traceable to him.This is essentially a problem of proof of causation.
Indivisible Harm.
Where two or more persons are responsible for the same harm,all whose tortious conduct is found to be a proximate cause of that harm are jointly and severally liable for all of the plaintiff’s damages,along with anyone who is vicariously liable for that conduct.The traditional rule has been that each is liable for the entire harm,and plaintiff ordinarily may sue any one of them,or some or all,jointly or separately,obtain judgments for the full amount of his damages against as many as he can,and then collect his judgment from one or any combination of them,as he chooses.Of course,he is entitled to only one satisfaction for his damages,but an unsatisfied judgment against one does not bar a subsequent action against another.Thus,for example,if there are three defendants,all found liable to the plaintiff,and plaintiff’s damages are $100,000,he will be given judgment against each defendant in the amount of $100,000.He can then collect that judgment from one or more defendants in any amount he likes,so long as his total collections do not exceed $100,000.
With the advent of comparative fault,some jurisdictions now make even joint tortfeasors only “severally” liable to the plaintiff.For example,if defendant A’s proportional share of plaintiff’s $100,000 damages is found to be 30%,in those jurisdictions he will be given judgment against A for only $33,333.33.Sometimes several liability is restricted to certain categories of defendants,with all others being jointly and severally liable.Release and Covenant Not to Sue.
Plaintiff may,of course,enter into an agreement with a tortfeasors by which he promises to relinquish his claim against him in exchange for a consideration.The transaction is called a settlement.By far the greater number of all tort claims are settled without trial.
One form of instrument by which this may be accomplished is a release,in which plaintiff completely surrenders his claim.His cause of action against the released tortfeasors is extinguished.What of his claims against other potential defendants for the same harm? While plaintiff may have rights against several persons arising out of a single injury he has but one cause of action,and thus the traditional common law rule was that a release of one released that cause of action and therefore released all others potentially liable for the same harm.
This led to the development of a device known as a covenant not to sue,under which plaintiff (usually by express language in the instrument) does not release his claim against that person,nor his cause of action,but instead merely agrees to forego any further attempts to enforce his claim against that alleged tortfeasors,by suit or otherwise.(A slight variation is a “covenant not to enforce” in which plaintiff promises not to try to collect any judgment he may obtain,or has obtained,from that particular tortfeasors.) Usually such covenants expressly reserve plaintiff’s rights against other tortfeasors.But even in the absence of such a reservation,a covenant not to sue or not to execute is held not to release or extinguish plaintiff’s claims against others who may also be liable for the same harm.The consideration received in exchange for such a covenant is always less than the full amount of the damages which plaintiff claims;otherwise his cause of action is fully satisfied and the instrument is in reality a release,and will be so construed.The amount received under such a covenant is credited against any judgment plaintiff subsequently obtains against other tortfeasors,but of course has no effect on later settlements with others.
Whether a particular instrument is a release or a covenant is a question of construction not always free from doubt.It is the parties’ intent as derived from the substance of the document which controls,and not the document’s form of designation.Having rejected the tyranny of labels,the courts are increasingly realizing that there is no logical reason why an instrument which is in form a release of one tortfeasors should ipso facto discharge others if the parties expressly agreed that it shall not do so and if it is not intended as a full satisfaction.Accordingly,in most jurisdictions (either by court decision or statute),under these conditions a release of one tortfeasors does not release others liable for the same harm.
The Restatement goes one step further,holding that a release does not discharge others liable for the same harm unless the agreement expressly so provides.It characterizes the requirement that there be an express reservation of rights in the instrument as a “booby-trap for the unwary.” (§ 885).Some jurisdictions now follow this view.One exception to the rule that a release of one tortfeasors does not release others is that in many jurisdictions,a release of Tortfeasor A automatically releases B who was liable to plaintiff solely under some rule making B vicariously liable for the conduct of A.
Contribution(https://www.daowen.com)
If plaintiff obtains a judgment against two or more joint tortfeasors,in most cases he may collect that judgment from any one or less than all in any disproportion he pleases.At this point plaintiff’s convenience and assurance of satisfaction are the main considerations;he is allowed to get his money the best way he can.If,as a result,one such defendant does in fact pay less than his proportionate share of the judgment,it might seem logical and fair that he should reimburse the other defendant(s) who,due to the luck of the collection process,paid more.The English and early American common law so held,except in cases of intentional torts or acts in concert where the wrongdoer’s equities were too weak to justify the court’s aid.But during the past century,the majority of the U.S.jurisdictions overextended this exception and denied all common law contribution among joint tortfeasors irrespective of the basis of liability,including cases of negligence and strict liability.
The common law is now superseded by statutes in most states which provide for contribution in some form.(Some are patterned after the Uniform Contribution Among Tortfeasors Act,a desirable model.) Several jurisdictions allow contribution by judicial decision.As comparative negligence becomes the universal rule,so too does contribution among joint tortfeasors.Similar rationale supports both principles.
Note that if and to the extent that a defendant is only severally liable to the plaintiff,contribution is not needed and is not available.
Contribution is still generally (but not universally) denied to willful tortfeasors.
Suppose plaintiff has sued and obtained a judgment against fewer than all joint tortfeasors.Should contribution be allowed against one against whom there is no judgment? Some of the statutes say no,but the better rule allows it (subject,of course,to satisfactory proof of liability).
In an action for contribution,the party seeking it must ordinarily establish that the tortfeasor from whom contribution is sought was subject to liability to the injured plaintiff,if no judgment has been obtained determining that liability.Thus,it is usually held that even defenses which only the contribution defendant could have asserted against the injured person,such as intra-family or governmental immunity,privilege,or the immunity provided an employer under the workmen’s compensation act,will bar contribution.There is,however,some authority to the contrary.Of course,the fact that the statute of limitations has run on the injured person’s claim against the contribution defendant is no defense in the action for contribution.
Indemnity
Contribution must be distinguished from indemnity,with which it is often confused.
Contribution is an equitable sharing of the loss;indemnification is a shifting of the entire loss from one tortfeasor to another,by operation of either (1) a prior agreement of the parties or (2) law,based on equitable considerations.While in theory the main justification for denying contribution – that the courts will not assist a wrongdoer – is equally applicable to an action for indemnity,the fact is that every jurisdiction permits indemnity at least to some extent.
Indemnity by operation of law is based upon the concept of unjust enrichment.R.§ 886B.Although largely superseded by the adoption of contribution,when still permitted it is allowed in a variety of situations for which no concise tests or standards can be articulated.Generally speaking,it lies when there is a significant or qualitative difference between the blameworthiness of two defendants,both of whom are nevertheless legally liable to the plaintiff for his injury,such that the primary responsibility for the harm rests upon the defendant against whom indemnity is sought.It is frequently said that where the misconduct of the indemnitee (the one seeking indemnity) was merely passive,” or his fault only “secondary,” indemnity will be granted against one (the indemnitor) whose wrongful conduct can be described as “active” or a “primary” cause.
Indemnity is often allowed in favor of one (such as an employer,partner,or automobile owner) where sole basis of liability is vicarious responsibility for the tort of another.The same is true where the indemnitee acted pursuant to directions received from the indemnitor which he reasonably believed to be lawful;or where he was induced to act by a misrepresentation of the indemnitor upon which he reasonably relied.Indemnity may be allowed where the indemn-i tor is responsible for a defective or dangerous condition which caused injury to the plaintiff,and which the indemnitee innocently failed to discover (e.g., the wholesaler or retailer of a defective product).
Indemnity (or the same thing by a different name) is usually allowed in favor of one who is held liable for additional harm caused plaintiff by the subsequent negligence of another.For example,the original tortfeasor who is held liable for all of plaintiff’s damages,including those attributable to the aggravation of his injuries by the negligence of the treating physician,may be allowed indemnity from the physician for that portion of the damages for which the physician was responsible.Other courts have reached the same result under a theory of subrogation.
With the advent of contribution,indemnity liability has been greatly restricted.Contribution has almost entirely replaced the “active-passive” form of implied indemnity.Some jurisdictions have also restricted or eliminated other forms of implied indemnity,substituting a contribution remedy.Only express indemnity remains largely unaffected by the shift to contribution.