Torts II, Pages 390–392

Bartlett v. New Mexico Welding Supply, Inc.

Court of Appeals of New Mexico, 1982


While driving, the car in front of plaintiffs signaled a right turn, turned into a service station, and then pulled back out very fast. Plaintiff slammed on her brakes to avoid hitting this car with an unknown driver. Defendant's driver was driving behind plaintiff and also applied his brakes but skidded into plaintiff's car anyway.

Procedural History:

The jury determined that plaintiffs' damages were $100,000, that plaintiffs were not negligent, that defendant was negligent for 30% of the accident, and that the unknown driver was negligent for 70% of the accident.

They moved that judgment be entered in that amount, which was not granted. Instead, the trial court ordered a new trial based on the jury instructions.


Does comparative negligence eliminate joint and several liability?


Under the common law either could be held liable. Joint and several liability has also been retained by judicial decision in pure comparative negligence states and in the Restatement.

The retention of joint and several liability is based on:

  1. The concept that a plaintiff's injury is "indivisible." While one could hold a plaintiff liable for some of his damages, that does not mean that defendant's negligence would not still be the proximate cause of the entire injury.
    • However, the jury could just find the defendant 30% at fault and responsible for 30% of the injury.
  2. A plaintiff should not bear the risk of being unable to collect his judgment.
    • If there is only one defendant, the plaintiff bears the risk of him being insolvent. Why does the risk shift if there are two defendants?


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 392, Paragraph 7–8

Joint and several liability is not to be retained in our pure comparative negligence system on the basis that a plaintiff must be favored.

We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver. Defendant, as a concurrent tortfeasor, is not liable on a theory of joint and several liability.


Reversed and remanded to enter judgment for plaintiffs for 30% of plaintiffs' damages.


This is the minority rule.