LAW 512-001 – Torts II

Joint Tortfeasor


Joint tortfeasors are people whose concurrent negligence contributed to cause plaintiff's injuries.

There are three types of joint tortfeasors:

  1. True joint tortfeasors who acted in concert
    • If only one actually did the harm, the other must have incited him to do it, not just have been there.
  2. Individual defendants who fail to perform a common duty to the plaintiff
  3. Individual defendants who independently contribute to a single, individual harm
Joint and Several Liability

Joint and several liability comprises joint liability and several liability.

Joint Liability

Joint liability allows one defendant to be liable for the whole damage of all joint tortfeasor defendants.

Several Liability

Several liability is simply being liable for one's own conduct.

The majority has retained joint and several liability but has changed it in some way for those who are not true joint tortfeasors.

The trend is to subtract settlements first, then multiply by the percentage of fault for comparative negligence, although some states do these steps in reverse.

Contribution

Contribution is the right of a joint tortfeasor to recover another's portion of the liability for the damages paid to the plaintiff.

The majority and the Restatement Third allow for contribution.

Contribution is the right of the tortfeasor and does not depend upon a judgment being obtained against that person by the plaintiff(s).

Contribution is reduced to the percentage of liability of that defendant in comparative negligence states.

Contribution is not allowed for intentional tortfeasors.

The majority does not allow non-immune tortfeasors to collect contribution from immune tortfeasors.

The majority allows a sued tortfeasor to collect contribution from after the statute of limitations has run.

Contribution can be collected through a cross-claim, impleading, or a separate suit.

A tortfeasor can seek contribution after making a settlement agreement, but he must prove that the other person was a joint tortfeasor and that the settlement was reasonable.

At common law, plaintiffs could not sue joint tortfeasors separately, but states have since changed this.