Joint Tortfeasors

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  1. Bierczynski v. Rogers
    C/A: Negligence

    F: Race (D) and Bierczynski (D) were racing cars when, Race's car collided with Rogers' (P) and causing injury. Bierczynski had stopped his car 35ft from the scene of the accident and did ot collide with Rogers' car. 

    Px: At trial jury found both Race and Bierczynski negligent and entered verdict for Rogers against Race and Bierczynski jointly. Bierczynsi appeals.

    I: Are parties who engage in an illegal activity liable for injuries to a third person regardless of which party directed inflicted injury or damage?

    H: Yes. Two or more D's who fail to perform a common duty to P are both liable to P even only one D caused the actual injury.
  2. Joint and Several Liability
    Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and each is also individually liable for the full amount. 

    P can recover from any of the tortfeasors or from the group.

    • Usually occurs in 3 situations:
    • 1) Defendants act in concert
    • 2) Defendants all fail to perform a common duty owed to P.
    • 3) Defendants acted independently to cause an indivisible harm to P
  3. Concert of Action
    Action that has been planned, arranged, adjusted, agreed upon, and settled between parties acting together, in pursuance of some design or in accordance with some scheme.
  4. Concurrent Negligence
    The wrongful acts or omissions of two or more persons acting independently but causing the same injury. 

    The independent actions do not have to occur at the same time, but must produce the same result. The actors are all responsible for paying the damages, and can usually be sued together in one lawsuit or individually in separate lawsuits.
  5. Coney v. J.L.G. Industries, Inc.
    C/A: Wrongful Death (negligence)

     Jasper died while operating a machine manufactured by JLG Industries. Coney (administrator of Jasper's estate) brought wrongful death action in strict liability. JLG defends on the grounds that Jasper acted with contributory negligence in operating the machine and that Jasper's employer also committed contributory negligence by failing to instruct and train Jasper.

    Px: Three questions certified to the Supreme Court of Illinois.

    I: 1) Is the doctrine of comparative negligence or fault is applicable to actions or claims seeking recovery under products liability or strict liability in tort theories?

    2) Does the doctrine of comparative negligence eliminate joint and several liability?

    3) Does the retention of joint and several liability in a system of comparative negligence or fault deny defendants equal protection of the laws in violation of the Federal and state t? 

    H: 1) Yes. 2) No. 3) No.
  6. Comparative Negligence
    The allocation of responsibility for damages incurred between P and D, based on the relative negligence of the two; the reduction of damages to be recovered by the negligent P is in proportion to his fault.
  7. Contributory Negligence
    The conduct on the part of P which falls below the standard to which he should conform for his own protection and which is a legally contributing cause in addition to the negligence of D in bringing about P's harm.
  8. Bartlett v. New Mexico Welding Supply
    C/A: Negligence

    F: Bartlett (P) slammed on her breaks and hit an unknown driver who suddenly backed out of a gas station. New Mexico's (D) employee was driving behind Bartlett and couldn't stop in time, rear-ended Bartlett. 

    Px: Bartlett sued New Mexico for negligence. New Mexico defended on the ground that the unknown driver caused or contributed to the accident. At trial jury determined that Bartlett's injury was $100,000 and that New Mexico's negligence contributed to 30% of Bartlett's accident. Bartlett moved to recover the full amount from New Mexico. Motion denied. New trial granted. New Mexico requests an interlocutory appeal. 

    I: In a comparative negligence jurisdiction, is a concurrent tortfeasor jointly and severally liable for the entire amount of P's judgment?

    H: No.

    Note: Opposite from Coney case. In this case P wasn't contributorily negligent. Some comparative negligence jurisdictions retain joint and several liability, while some reject it.
  9. Bruckman v. Pena
    I: May a defendant be held liable for a plaintiff's subsequent injury where the plaintiff cannot apportion the damages between the causes of injuries. 

    H: Initial tortfeasor is not jointly and severally liable for distinct intervening cause o finjury.
  10. Newbury Rule
    See  Newbury v. Vogel

    A tortfeasor who injures one suffering from a pre-existing condition is liable for the entire damage to the plaintiff where no apportionment is possible
  11. Apportionment

    Dividing fairly or according to the parties' respective interests, proportionally, but not necessarily equally.
  12. Concurrent Tortfeasors
    (example of when damages cannot be apportioned)
    A and B, driving separate cars, negligently collide. One car bounces over on the sidewalk, hits C and injures him. C's injury is indivisible and therefore not apportionable. A and B are each liable for the full injury.
  13. Successive Tortfeasors (unrelated accidents)
    Second tortfeasor is liable for whole injury where damages cannot be apportioned.
  14. Successive Tortfeasors (related accidents)
    Each successive tortfeasor would be liable for individual torts. If their is evidence that damages can be allocated, a jury must do so.
  15. 4 Scenarios for Joint and Several Liability
    1. Where the actors knowingly join in the tortious conduct

    2. Where the tortfeasors fail to perform a common duty owed to the plaintiff

    3. Where there is a special relationship between the parties

    4. Where, although no concerted action between the tortfeasors exist, the harm produced by their actions is indivisible
  16. Dillon v. Twin State Gas & Electric Co.
    Where a plaintiff, regardless of the defendant's negligence, would suffer injury, should the plaintiff's damages be measured based on the plaintiff's injured condition?


    P's loss of balance did not deprive him of a life of normal expectancy, but of one too short to be given damages, or in the alternative, of a life of limited earning capacity. It was found that the boy would have fallen to his death regardless of the electrocution, the defendant is not liable, except for any conscious suffering which the boy may have sustained from the electric shock. 

    In order for the plaintiff to collect damages, there has to be some injury to the plaintiff's person or property as a result of the defendant's negligence.
  17. Brittain's Notes for Joint Tortfeasors (Ch. 7)
    If two parties act in concert, but only one party is the actual cause in fact of the injury, then the other party may also be liable if they acted in concert for the damages. 

    Burden of proof is on the defendant b/c they are trying to "weasel out of" responsibilities for damages. 

    When an injury is indivisible then its subject to joint and severable liability.

    When an injury can be apportioned it is subject to liability to the responsible party.
  18. Misfeasance
    Failure to take reasonable care

    Per Brittain
  19. Nonfeasance
    Failure to act at all when there is a duty to act

    per Brittain
  20. Nonfeasance
    per book

    Where the defendant had done no more than make a promise and break it
  21. Misfeasance
    Where the defendant had attempted performance but done the wrong thing

    per book
  22. MacPherson v. Buick Motor Co.
  23. Winterbottom v. Wright
    Winterbottom, a coach driver, sued Wright, a coach manufacturer, for injuries sustained when the coach broke down. 

    H: A person may not sue another on a non-public contract when he/she is not privy to the contract.
  24. Three Areas in Which Duty of Care Is Central in Establishing Liability
    1. Act of a 3rd party or natural event has caused physical harm to Plaintiff that defendant has failed to take affirmative steps to prevent or ameliorate

    2. The negligent act causes non-physical harm, i.e. emotional distress or pure economic loss

    3. The negligent act causes losses in birth or conception where the traditional categorizations of personhood are incapable of bestowing a cause of action. 

    (area 3 demonstrates that technological advances and social change may give rise to new interests that may be protected by negligence)
  25. Clagett v. Dacy
    F: Clagett, highest bidders in a foreclosure sale, sued Dacy, attorney for creditors, for failing to follow proper procedure for the sale. 

    Q/P: May an attorney be held liable to a person who is not intended to benefit by his performance, and with whom the attorney does not have a contractual relationship?

    H: No. An attorney may not be liable for damage caused by his negligence to a person not intended to benefit by his performance.

    The plaintiff was not a third party beneficiary (contract law)
  26. Hegel v. Langsam
    The Hegels, parents of a minor child who was a university student, sued Langsam, a university official, for failing to prevent the student's association with criminals, to become a drug user, and for failing to return the student to Hegel's custody. 

    Q/P: Does a university have the duty to control the private lives of students?

    H: A university does not have the duty to control the private lives of its students.
  27. J.S. and M.S. v. R.T.H.
    Wife of pedophile was sued for failure to protect the neighbor children from sexual abuse by her husband. 

    Two sisters spent a lot of time with their 65 year old neighbor, riding and caring for his horses. Neighbor began sexually abusing the children and continued for over a year. 

    Q/P: Does a spouse who suspects or should suspect his or her spouse of actual or prospective sexual abuse against a particular person or persons have a duty to care to prevent such abuse and, if so, does breach of that duty constitute a proximate cause of the harm that results from sexual abuse?

    H:Yes. The wife of a pedophile has a duty to warn others of her husband's propensities
  28. Tarasoff v. Regents of University of California
    grad school

    Therapist has a duty to warn potential victim disclosed by patient.
  29. State of Louisiana ex rel. Guste v. M/V Testbank
    State of LA sought recovery from M/V Testbank for pure pecuniary loss suffered when M/V's negligence caused fishing waters to be closed. 

    Q/P: May a plaintiff recover for pure economic loss if the loss resulted from physical damage to property in which the plaintiff had no interest?

    H: No. A plaintiff may not recover for pure economic loss if the loss resulted from physical damage to property in which the plaintiff had no interest.
  30. In Terrorem
    Latin phrase meaning "in fear"
  31. Public Nuisance
    An unreasonable interference with a right common to the general public. It is behavior which unreasonably interferes with the health, safety, comfort, peace, or convenience of the general community.
  32. Pure Economic Loss
    Arises when a person suffers pecuniary loss not consequent upon injury to his person or property. The cases fall into two categories:

    1. Negligent misrepresentation or misstatement causing economic loss; and 

    2. Negligent acts causing economic loss
  33. parasitic damages
    (think parasite)

    damages tacked on to some other tort
Card Set
Joint Tortfeasors
Torts II Joint Tortfeasors
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