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 28
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:
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- Fall '08
- Tort Law