Negligence - Joint and several liability

Learning Outcomes

After reading this article, you will be able to explain the meaning and operation of joint and several liability in negligence cases, distinguish it from several liability, identify when it applies, and analyze how damages are apportioned among multiple tortfeasors. You will also be able to apply these principles to MBE-style questions and avoid common exam errors.

MBE Syllabus

For the MBE, you are required to understand how liability is shared among multiple defendants in negligence actions. This includes:

• The definition and consequences of joint and several liability.
• The distinction between joint and several liability and pure several liability.
• The circumstances under which joint and several liability applies.
• The rules for contribution and indemnity among tortfeasors.
• The effect of comparative fault and statutory modifications.
• The impact of settlements and releases on remaining defendants.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. If two defendants are jointly and severally liable for a plaintiff’s indivisible injury, and the plaintiff collects the full judgment from one, what recourse does that defendant have?
   1. None; the paying defendant bears the entire loss.
   2. The paying defendant may seek contribution from the other defendant.
   3. The plaintiff must return the excess to the paying defendant.
   4. The judgment is split automatically by the court.
2. In a pure several liability jurisdiction, if three defendants are found 10%, 30%, and 60% at fault for a 100,000injury,andtheplaintiffsuesonlythe30a)100,000 injury, and the plaintiff sues only the 30% defendant, how much can the plaintiff recover? a) 100,000injury,andtheplaintiffsuesonlythe30a)10,000
   1. 30,000c)30,000
   2. $100,000
3. Which of the following is most likely to trigger joint and several liability?
   1. Multiple defendants cause separate, divisible injuries.
   2. Multiple defendants act independently, causing a single, indivisible injury.
   3. One defendant is much more at fault than the others.
   4. The plaintiff is also negligent.

Introduction

When more than one defendant is responsible for a plaintiff’s injury, the law must determine how liability and damages are shared. Joint and several liability is a doctrine that can make each defendant liable for the entire amount of the plaintiff’s damages, regardless of their individual share of fault. This article explains when joint and several liability applies, how it differs from several liability, and the consequences for plaintiffs and defendants on the MBE.

Key Term: Joint and Several Liability A rule under which each of multiple defendants who proximately cause an indivisible injury is liable to the plaintiff for the full amount of damages, regardless of their individual share of fault.

When Does Joint and Several Liability Apply?

Joint and several liability typically arises when two or more defendants act together (in concert) or independently, but their conduct combines to cause a single, indivisible injury to the plaintiff. If the injury cannot be reasonably apportioned among the defendants, each is responsible for the whole loss.

Key Term: Indivisible Injury An injury that cannot be reasonably separated by cause or apportioned among multiple tortfeasors.

Several Liability (Pure Several Liability)

Some jurisdictions have abolished joint and several liability in favor of pure several liability (also called "proportionate liability"). In these systems, each defendant is liable only for their percentage share of fault, and the plaintiff cannot recover more than that share from any one defendant.

Key Term: Several Liability A rule under which each defendant is liable only for their own proportion of fault, and not for the entire judgment.

Contribution and Indemnity

If a plaintiff recovers the full judgment from one jointly and severally liable defendant, that defendant may seek contribution from other responsible defendants for their share of the damages. Indemnity may be available if one defendant is much less at fault or only vicariously liable.

Key Term: Contribution The right of a defendant who has paid more than their share of a joint judgment to recover the excess from other liable defendants.

Key Term: Indemnity The right of a defendant who is only secondarily or vicariously liable to recover the entire amount paid from the party who is primarily responsible.

Effect of Comparative Fault and Statutory Modifications

Many states have modified or abolished joint and several liability, especially in comparative negligence jurisdictions. Some limit joint and several liability to certain types of cases (e.g., intentional torts) or to defendants above a threshold percentage of fault. Always check the facts for statutory modifications.

Settlements and Releases

If one defendant settles with the plaintiff, the effect on remaining defendants depends on the jurisdiction. In most cases, a good faith settlement by one tortfeasor reduces the total judgment by that amount but does not release the others unless expressly stated.

Worked Example 1.1

A and B negligently cause a car accident that injures P. The jury finds A 70% at fault and B 30% at fault. P’s damages are $100,000. P collects the full$100,000 from B. What can B do?

Answer: Because joint and several liability applies, P can collect the entire judgment from either A or B. B, having paid more than their share, may seek contribution from A for $70,000 (A’s share of fault).

Worked Example 1.2

Suppose C and D independently start fires that merge and destroy P’s house. The damage cannot be separated. The jury finds C 60% at fault and D 40%. In a pure several liability jurisdiction, P sues only D. How much can P recover?

Answer: In a pure several liability jurisdiction, D is liable only for 40% of the damages, or $40,000. P cannot recover the remaining$60,000 from D.

Exam Warning

In some jurisdictions, if a defendant is less than a threshold percentage at fault (e.g., 25%), joint and several liability does not apply. Always check for statutory modifications in the fact pattern.

Revision Tip

On the MBE, if the question does not specify a statutory modification, assume traditional joint and several liability applies to indivisible injuries.

Key Point Checklist

This article has covered the following key knowledge points:

• Joint and several liability makes each defendant liable for the full amount of an indivisible injury.
• Several liability limits each defendant’s responsibility to their own share of fault.
• Contribution allows a paying defendant to recover from others; indemnity applies in special cases.
• Many states have modified or abolished joint and several liability—read the facts carefully.
• Settlements by one defendant usually reduce the total judgment but do not automatically release others.

Key Terms and Concepts

• Joint and Several Liability
• Indivisible Injury
• Several Liability
• Contribution
• Indemnity