Dr 2 handled p after birth didnt diagnose correctly

mom of P for necessary treatment during delivery. Dr. #2. Handled P after birth. Didn’t diagnose correctly. Jury gave
dmgs. Determined % of contribution to fault of each D but didn’t expressly state whether liab was joint and several OR
independent and successive.
a. Carelessness of each D needed for P’s injury. Each But-for causes. Jury apportion of fault. #1Dr. 80% #2 Dr.
20%. Dr #2 doesn’t want to have to pay for more then his percentage since Dr1 bankrupt  ct says TOO BAD
b. Problem? Jury found diff percentages of fault BUT Injury indivisible (impossible to say whose carelessness
caused which “part” of injury so what do u do?- 
c. Holding : J&S liab for indivisible injuries survives! Ct doesn’t consider comparing fault to be the same
as dividing the injury. Thus P can choose to collect up to full dmgs amount from one Dr alone.
d. Reasoning: Jury makes this determination.
i. Colorado: Says listen to evidence. If tortfeasors then assign %. Then treat all parties the same (P’s
hate it b/c they get liability %)  legis arg this is logical extension of comparative fault.
ii. *** NJ: Hybrid: allows joint and several liab (so one D can b responsible for ALL) in indivisible
harm cases, IF and ONLY IF: tortfeasors have % responsibility mets or is more then certain
JOINT LIAB & CONTRIB/ SEVERAL
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threshold (60%)  essentially if one party (P or D) is liable for more then 60% of dmgs then
they could b held to pay all dmgs!
B.
Bencivenga v. J.J.A.M.M. Inc:
cant attribute fault to unknown parties. P punched in club by bouncers and
unknown assailant. Asasilant NOT in lawsuit. Suit againt Club. Club wont give name.
a. Uses NJ Hybrid statue: how?
b. Holding: Fault of Fictiusly named person may NOT be considered when apportioning neg among
parties to suit. When one tortfeasors identity unknown liability allocated amongst known defendants.
c. Reasoning: Gives D greater incentive to bring in missing party. Colorado Statue wasn’t done to include people
that aren’t in suit. Cts want to give P opportunity to get 100% of apportionment and get as much
compensation as should b due to them. D properly bears burden of identifying absent tortfeasors (especially
this case) so D should b subject to J&S liab
d. Switch from comparative negligence to comparative fault!
e. Other juris allow juries to assign fault to unknown tortfeasors. In these causes (if not rule of J&S liab) then P
cant collect on liab of assign party
 Insurance is what makes many D’s solvent
 2 Kinds of insurance:
1. 1 st party insurance: when you buy insurance from an insurance company to cover your own accidents (health
insurance)
2. 3 rd party insurance: (liability insurance): what we’re really talking about in tort law – when you buy insurance to
cover someone else’s accident
a. When buy this is b./c ur worried u may b D in tort suit
b. Why buy?
i. Will cover liab if they are proven/ have to pay
ii. Liability insurer pay for lawyer
 Interinsurance Exch of Auto Club v. Flores: Original Suit: P: Flores. D: sanders and Perez . Sanders brought in auto
insurance company to pay for dmgs to P. Sanders and Perez joint tortfeasors b/c aiding and abetting
o Insurance K says covers accident or occurrence in use of auto. P wants to argu that K means something. P arg: