Torts Question

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TurkeyDay
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Torts Question

Postby TurkeyDay » Sat Dec 03, 2011 1:32 pm

Anyone know when to use joint and several liability? My notes are a little vague on this topic. Thanks!

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Extension_Cord
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Re: Torts Question

Postby Extension_Cord » Sat Dec 03, 2011 2:21 pm

TurkeyDay wrote:Anyone know when to use joint and several liability? My notes are a little vague on this topic. Thanks!


My professor told us if the liable parties acted in concert or conspiracy in the underlying wrong.

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ph14
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Re: Torts Question

Postby ph14 » Sat Dec 03, 2011 2:21 pm

TurkeyDay wrote:Anyone know when to use joint and several liability? My notes are a little vague on this topic. Thanks!


Joint tortfeasors or individual tortfeasors who acted together to create a single, indivisible harm.

thegrayman
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Re: Torts Question

Postby thegrayman » Sat Dec 03, 2011 2:22 pm

I thought that J/S liability was based on the relevant statute in place, so you would need to be told what the law was in forum state?

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ph14
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Re: Torts Question

Postby ph14 » Sat Dec 03, 2011 2:23 pm

thegrayman wrote:I thought that J/S liability was based on the relevant statute in place, so you would need to be told what the law was in forum state?


This may be true, as are a lot of things in law. But on exams you often just have to work from the general tort principals.

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ph14
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Re: Torts Question

Postby ph14 » Sat Dec 03, 2011 2:26 pm

ph14 wrote:
TurkeyDay wrote:Anyone know when to use joint and several liability? My notes are a little vague on this topic. Thanks!


Joint tortfeasors or individual tortfeasors who acted together to create a single, indivisible harm.


Joint tortfeasors (acted in concert) = joint and several liability
Successive tortfeasors (independent) = original tortfeasor liable for all resulting damages including those of the successive tortfeasor; successive tortfeasor only liable for aggravation of original injuries or separate injuries; only applies when there is a reasonable division of injuries
Independent tortfeasors that produce a single, indivisible harm = joint and several liability

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orm518
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Re: Torts Question

Postby orm518 » Sat Dec 03, 2011 2:43 pm

ph14 wrote:Joint tortfeasors (acted in concert) = joint and several liability
Successive tortfeasors (independent) = original tortfeasor liable for all resulting damages including those of the successive tortfeasor; successive tortfeasor only liable for aggravation of original injuries or separate injuries; only applies when there is a reasonable division of injuries
Independent tortfeasors that produce a single, indivisible harm = joint and several liability


This is spot on.

C.f. Glannon's E&E Ch. 10 and 11. Joint or Joint and Several liability turn on facts where there is more than one "but for" cause.

Also, for cases many case books (at least the Prosser book) use Summers v Tice, though be careful, most courts don't buy the CA logic.

HOV
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Re: Torts Question

Postby HOV » Sat Dec 17, 2011 7:04 pm

my question was far more likely to confuse than educate. no joke.
Last edited by HOV on Sun Dec 18, 2011 9:15 am, edited 1 time in total.

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arvcondor
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Re: Torts Question

Postby arvcondor » Sun Dec 18, 2011 2:21 am

HOV wrote:bunch of stuff

Two issues:

1. If it's apportioned, each defendant is only responsible for his share, regardless of J/S.

2. Are you sure this is apportioned? I was under the impression that apportioned liability occurs when there are separate injuries, e.g., if P had gone to the hospital and the doctor, in fixing his leg, accidentally broke his jaw.

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TheFutureLawyer
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Re: Torts Question

Postby TheFutureLawyer » Sun Dec 18, 2011 2:29 am

ph14 wrote:
thegrayman wrote:I thought that J/S liability was based on the relevant statute in place, so you would need to be told what the law was in forum state?


This may be true, as are a lot of things in law. But on exams you often just have to work from the general tort principals.


I didn't do well on my Torts exam, but I think that if you're supposed to talk about J/S that the prof will mention something about it in the hypo. Same thing with wrongful death / survival statutes.

Anyway, I also was unsure about J/S, so I just googled that shit and the wiki answer cleared it all up: http://en.wikipedia.org/wiki/Joint_and_ ... _liability

HOV
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Re: Torts Question

Postby HOV » Sun Dec 18, 2011 9:14 am

arvcondor wrote:
HOV wrote:bunch of stuff

Two issues:

1. If it's apportioned, each defendant is only responsible for his share, regardless of J/S.

2. Are you sure this is apportioned? I was under the impression that apportioned liability occurs when there are separate injuries, e.g., if P had gone to the hospital and the doctor, in fixing his leg, accidentally broke his jaw.


you're right,thanks.

LSATNightmares
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Re: Torts Question

Postby LSATNightmares » Sun Dec 18, 2011 9:45 am

My professor said if you find they are jointly and severally liable, you can make one person pay up to 100% of damages. If he lacks money, you can obtain, say, 50% of damages or whatever number from that one person, and then you can collect the rest from the second person. This ensures you get compensated. In the past, they divided the apportioned damages on a pro rata basis.

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booboo
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Re: Torts Question

Postby booboo » Sun Dec 18, 2011 10:18 am

My understanding:

Joint liability was the historical standard. Under joint liability, one party pays the entire amount of the damages, without being able to seek contribution. Now in the case where there are multiple tortfeasors, if the percentage of fault is equated, under a joint system any of the defendants that are sued cannot seek indemnity or contribution, on the principle that one who has faulted another should not escape paying for the wrong. (Remember, back in the ole days, the system was pretty much all or nothing, in many respects). For a case that exemplifies this, look at Union Stockyard Co. v. some R.R. co.

Joint and Several Liability was created to be a more equitable distribution of payment between the tortfeasing parties, while still fully compensating the plaintiff. Under such a system, plaintiff need only find one defendant to sue for the entirety of the damages, even if that party was not the primary or even significantly at fault in comparison to the harm caused. That party, if they so wish, can seek contribution from the other tortfeasing parties, up to the amount that a court would decide they were "wrongful." This also solves the insolvent defendant problem that plaintiffs may face, regarding the inability to gain full compensation of the harm.

Pro rata was just a weird system where the court decided that each tortfeasor to a harm was to be apportioned the amount of harm based upon the amount of parties within the tortfeasing group. Under joint, one party could likely not seek contribution since all the parties equally contributed to the harm. Under joint and several, it removed the necessity of calculation of the apportionment of the amount of wrong per tortfeasor, but still allows for full compensation, by allowing the insolvent defendant's liability to be spread equally between the remaining solvent tortfeasing parties.

I did not proof this, if there is a problem with this other poasters, please fix.




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