Whenever you have multiple tortfeasors, consider whether they will be jointly and
General Rule: If more than one person is an actual and proximate cause of
P’s harm, and the harm is indivisible, each D is liable for the entire harm.
Often Tested Issue: “Was the harm to P indivisible?”
If not, there is no
joint and several liability.
Ex: D1 and D2 shoot at P.
D1 hits P in the leg, D2 hits him in the
If we can apportion the harm, including pain and suffering –
which we can do here – then there’s no joint and several liability;
each D pays only for the harm he himself caused.
If joint and several liability applies, then P can collect the entire amount
from whichever single D he wishes.
Alternatively, he may collect some
from each, with the limitation of one total satisfaction.
Two common contexts for joint and several liability:
Employer/employee- each is jointly and severally liable (the
employer on a “vicarious liability” theory.)
Where a dangerous product injures the consumer, both the
manufacturer and the retailer will be jointly and severally liable if
P recovers in strict product liability.
Very often tested: The interaction between traditional joint and several
liability and comparative negligence.
If there is no statute dealing specifically with this interaction, then
joint and several liability
as to that portion of the total fault
that is not the P’s.
Ex: P has total, indivisible, injuries of $100,000.
finds that P was 30% at fault, D1 was 50% at fault and D2
The jurisdiction has a comparative negligence
statute, but no statute addressing joint and several liability.
P can only collect $70,000, which he can collect all from
D1, all from D2, or a mix.
Some states now have special statutes limiting joint and several
liability in connection with comparative negligence.
If your facts
are silent about whether such a statute is in force, you might want
to give the traditional analysis as in the prior paragraph, and then
Ex: But the state may have a statute, as a number of states
do now, abolishing joint and several liability for any D
found to be less than 50% at fault for the accident.
Whenever you have multiple tortfeasors, consider whether one has the right to
contribution from the other(s).
Contribution is a cost-sharing in favor of one who
has paid more than his proportionate share of the total liability.
Under classic common law contribution, the court makes each D pay an
equal net amount.
Ex: D1 and D2 are found jointly and severally liable for P’s
P collects $70,000 from D1 and $30,000 from