A Quick Torts Question Forum

[Richie Tenenbaum]

So I was curious: Say there is a case of concurrent causation, where both defendants (A and B) jointly and severally liable for $100,000 in compensatory damages. A and B happen to hate each other, so instead of them working things out together with plaintiff (C), A settles and B appeals. If B loses on appeal, what does he owe C? The full amount right? Or for some reason does he owe less because of A already paying C some money in the settlement. I'm pretty sure that the full amount is right, just wanted to make sure. Please point out my wrongness if I'm on the wrong path though.

[reasonable_man]

So I was curious: Say there is a case of concurrent causation, where both defendants (A and B) jointly and severally liable for $100,000 in compensatory damages. A and B happen to hate each other, so instead of them working things out together with plaintiff (C), A settles and B appeals. If B loses on appeal, what does he owe C? The full amount right? Or for some reason does he owe less because of A already paying C some money in the settlement. I'm pretty sure that the full amount is right, just wanted to make sure. Please point out my wrongness if I'm on the wrong path though.

If A and B are both jointly and severally liable to pay a total judgment of $100,000.00, then why would B have to pay a full $100,000.00 to C, if A already paid part of the sum total of $100,000.00 to C? That makes no sense. Even under pure common law, C is not entitled to a double recovery. Assuming A paid 25k and this jurisdiction were a pure joint and several jurisdiction and there were no offset rules, then the most B should pay to C would be 75k.

What your hypo leaves out is the liability apportionment determined at trial by the jury. If A and B are equally liable (50% each) and A pays arguendo, 25k to C, then the specific rules of the jurisdiction kick in.. In NY, under General Obligation Law Section 15-108, the non settling defendant (in this case B), is entitled to a reduction in damages equal to the greater of: (1) the settling defendant(s)’ equitable share of the damages awarded; (2) the stipulated amount of any settlements; or (3) the amount actually paid by the settling defendant(s). So if A was found 50% liable at trial and paid 25K to C, then under New York law, B remains liable to the plaintiff in the amount of 50K, because under Section 15-108, B is entitled to a 50% reduction (i.e. the percent of total liability assessed to A by the jury).

Now as for interest and costs, on appeal, a bill of costs would be assessed to B on the appeal (assuming B loses the appeal) and interest would attach on the judgment depending on the type of action (again this assumes NY law applies). If the case was based upon contract, interest at 9% attaches from the point of breach forward. If C's action was predicated upon a tort theory, then interest attaches at 9% from the point of judgment forward.

Lastly, keep in mind that many jurisdictions (almost all), modify or abrogate joint and several liability in one way or another. A good example is Article 16 of the CPLR - primarily 1601 and 1602 of the New York CPLR.

[nygrrrl]

I love reasonable_man's explanations.
They're so... reasonable. (Seriously. Every time you answer one of these, it makes perfect sense. Also, so happy I knew this one. There's one answer I'll get right, on the final. Phew.)

[Richie Tenenbaum]

Ah, thanks a lot! We didn't spend too much time on damages in torts last semester and not sure if I learned this or just forgot. (Probably the latter, since I think my brain seemed to have emptied everything out after finals.)

[reasonable_man]

I love reasonable_man's explanations.
They're so... reasonable. (Seriously. Every time you answer one of these, it makes perfect sense. Also, so happy I knew this one. There's one answer I'll get right, on the final. Phew.)

I'm sure it won't be the only one

[reasonable_man]

Ah, thanks a lot! We didn't spend too much time on damages in torts last semester and not sure if I learned this or just forgot. (Probably the latter, since I think my brain seemed to have emptied everything out after finals.)

When you're talking torts, largely, you're talking compensation, not punishment. That said, most modifications of common law will work to keep to the common theme of providing compensation while at the same time avoiding windfalls.

[Richie Tenenbaum]

Quick follow up for clarification: Does it change anything if the jury determined both parties 100% liable? (ex. A and B both started small brush fires, which caused a large fire. Both small brush fires were sufficient to causing the large brush fire, and the large brush fire burned down C's barn). Or would a jury still assess 50% liability on each? (Even though both were deemed 100% at fault for the large fire.)

[reasonable_man]

Quick follow up for clarification: Does it change anything if the jury determined both parties 100% liable? (ex. A and B both started small brush fires, which caused a large fire. Both small brush fires were sufficient to causing the large brush fire, and the large brush fire burned down C's barn). Or would a jury still assess 50% liability on each? (Even though both were deemed 100% at fault for the large fire.)

The jury, in responding to the verdict sheet with the agreed upon jury insturctions issued by the judge would be compelled to assess liability for a total of 100%. If the jury believes that both parties are equally responsible, then it should find each to be 50% responsible for the loss.