Negligence - Joint and several liability

Learning Outcomes

This article explains how joint and several liability operates in negligence actions on the MBE, including:

• the definition and practical effect when multiple defendants are responsible for a single indivisible injury, and how that affects plaintiff’s collection strategies;
• distinguishing traditional joint and several, pure several, and modified regimes, and spotting which system the fact pattern is using;
• identifying when joint and several liability is triggered on the MBE (concerted action, alternative liability, vicarious liability, res ipsa with multiple defendants, and indivisible concurrent causes);
• working through contribution and indemnity claims among defendants after the plaintiff has obtained a judgment or settlement, including typical allocation methods (comparative fault vs equal shares);
• analyzing how comparative fault and statutory reforms alter common-law rules, including thresholds, economic-only joint and several, and reallocation statutes;
• evaluating how settlements, releases, and satisfied judgments change remaining defendants’ exposure and contribution rights under pro tanto and pro rata credit systems;
• applying these doctrines to complex, multi-party, exam-style hypotheticals without confusing what the plaintiff may recover from each defendant with what defendants can recover from one another;
• using structured issue-spotting steps to organize MBE answers involving multiple tortfeasors, ensuring you address plaintiff recovery, allocation among defendants, and any statutory modifications.

MBE Syllabus

For the MBE, you are required to understand how liability is shared among multiple defendants in negligence actions, with a focus on the following syllabus points:

• The definition and consequences of joint and several liability for indivisible harms.
• The distinction between joint and several liability, pure several liability, and modified joint and several regimes.
• The circumstances under which joint and several liability applies (e.g., multiple tortfeasors, concerted action, alternative liability, and vicarious liability).
• The rules governing contribution and indemnity among tortfeasors.
• The interaction between joint and several liability, comparative fault, and statutory modifications.
• The impact of settlements, releases, and satisfied judgments on remaining defendants and contribution claims.

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 $100,000 injury, and the plaintiff sues only the 30% defendant, how much can the plaintiff recover?
   1. $10,000
   2. $30,000
   3. $60,000
   4. $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 the traditional doctrine that can make each defendant liable for the entire amount of the plaintiff’s damages, regardless of that defendant’s individual share of fault. The plaintiff chooses whom to sue and from whom to collect; the defendants then sort out among themselves who ultimately bears the loss.

For MBE purposes, unless the question specifies a statutory modification, assume a traditional negligence jurisdiction with joint and several liability for indivisible injuries, even if the fact pattern describes a comparative negligence system.

Key Term: Joint and Several Liability
A rule under which each of multiple defendants who are legal causes of a single, indivisible injury is liable to the plaintiff for the full amount of damages. The plaintiff may recover all damages from any one, some, or all of the defendants.

Key Term: Joint Tortfeasor
Any defendant who, together with one or more others, is legally responsible for the same injury to the plaintiff. Joint tortfeasors may act in concert or independently, as long as their negligence combines to produce one indivisible harm.

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 or attributed to particular causes or defendants. Classic examples include a single broken leg, a single property loss, or a cumulative pollution harm that cannot be divided by source.

Key Term: Divisible Injury
An injury where different portions of the harm can be reasonably assigned to different causes or defendants (for example, separate car accidents causing distinct time periods of disability or separate fires causing distinct property damage).

Under the traditional rule:

• If defendants cause a single, indivisible injury, each joint tortfeasor is jointly and severally liable to the plaintiff for the entire amount of damages.
• If defendants cause separate, divisible injuries, each is liable only for the harm they caused; joint and several liability does not apply.

Situations in which joint and several liability most commonly appears on the MBE include:

• Two or more drivers whose negligence combines to cause one crash and one set of injuries.
• Multiple negligent manufacturers or suppliers whose products combine to produce one indivisible disease or defect, where the harm cannot be apportioned.
• Defendants acting in concert (e.g., street racers) who together create an indivisible injury.
• Alternative liability situations (e.g., two hunters negligently shoot in the plaintiff’s direction, but only one bullet hits; both may be treated as jointly liable unless they can prove who caused the injury).
• Res ipsa loquitur used against multiple defendants in a setting where the instrumentality of harm was under their joint control (e.g., certain medical malpractice scenarios).
• Cases in which both a vicariously liable defendant (employer) and the primary tortfeasor (employee) are sued.

Key Term: Alternative Liability
A doctrine under which, when multiple defendants are negligent but uncertainty exists as to which one caused the injury, the burden shifts to the defendants to prove who caused the harm; failing that, each may be held jointly and severally liable.

Key Term: Vicarious Liability
Liability imposed on one party for the torts of another based on a special relationship (such as employer–employee), even if the vicariously liable party was itself free from fault in causing the injury.

On the MBE, once you identify an indivisible injury caused by multiple negligent actors, you should immediately consider joint and several liability unless the fact pattern clearly states a pure several or modified regime.

A critical apportionment point: when harm is prima facie indivisible, the defendant who wants to limit their liability to a portion of the damages generally bears the burden of showing that the injury can be reasonably divided and of proving the appropriate allocation. If the defendant fails to do so, joint and several liability applies.

Key Term: Satisfied Judgment
A judgment that has been paid in full by any defendant. Once the plaintiff receives full satisfaction from one or more defendants for a given injury, the plaintiff’s claim against all other joint tortfeasors for that injury is extinguished, though contribution or indemnity claims among defendants may remain.

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, even if other defendants are insolvent, immune, or absent.

Key Term: Several Liability
A rule under which each defendant is liable only for the percentage of damages corresponding to that defendant’s proportion of fault, and never for more than that share.

In a pure several liability jurisdiction:

• The jury assigns a percentage of fault to each defendant (and often to the plaintiff as well).
• Each defendant is responsible only for that percentage of the total damages.
• The risk that one tortfeasor is insolvent or not before the court falls on the plaintiff, not on the other defendants.

Many modern states have adopted modified joint and several liability rules rather than pure systems.

Key Term: Modified Joint and Several Liability
A statutory system that preserves joint and several liability in some situations (for example, for defendants above a specified percentage of fault or for economic damages only) but otherwise uses several liability.

Common modifications include:

• Joint and several liability only if a defendant’s fault exceeds a threshold (e.g., 10%, 25%, or 50%).
• Joint and several liability only for economic damages (medical bills, lost wages), with several liability for non-economic damages (pain and suffering).
• Reallocation statutes that shift uncollectible portions of a judgment among remaining defendants according to their percentages of fault.

On the MBE, any such modifications will be clearly stated in the question. If nothing is said, assume traditional joint and several liability.

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 shares of the damages. In some relationships, a defendant may seek indemnity, shifting the entire loss onto another party.

Key Term: Contribution
The right of a defendant who has paid more than their fair share of a joint obligation to recover the excess from other jointly liable defendants, usually in proportion to their relative fault.

Key Term: Indemnity
The right of one party who has discharged a liability (often only vicariously or secondarily liable) to recover the full amount from the party who is primarily responsible.

Key points about contribution:

• Contribution is only available between jointly liable defendants; it does not affect the plaintiff’s rights.
• Most modern jurisdictions allocate contribution according to comparative fault (e.g., a defendant 30% at fault ultimately bears 30% of the total damages).
• A minority use an equal-shares approach, dividing the loss equally among all jointly liable defendants.
• Many states bar contribution claims by intentional tortfeasors; on the MBE, this will be specified if relevant.

Indemnity is narrower and typically arises when:

• One party is vicariously liable (e.g., employer–employee). The employer can seek full indemnity from the negligent employee.
• Contract or statute expressly provides for indemnity (e.g., a manufacturer agrees to indemnify a retailer).
• A party is only passively negligent while another is actively negligent (traditional, but less emphasized on the MBE).

Contribution and indemnity operate between defendants; they do not change the plaintiff’s ability to collect the full judgment from any one jointly and severally liable tortfeasor.

Effect of Comparative Fault and Statutory Modifications

Many states have modified or abolished joint and several liability, especially in comparative negligence jurisdictions.

Traditional contributory negligence (still a minority rule) bars the plaintiff’s recovery if the plaintiff is at all negligent. Most states now use some form of comparative fault, under which the plaintiff’s damages are reduced by their percentage of fault.

Key Term: Comparative Fault
A system under which the trier of fact assigns percentages of fault to the plaintiff and each defendant, and the plaintiff’s recovery is reduced (but not usually barred) in proportion to the plaintiff’s share of fault.

Comparative fault interacts with joint and several liability as follows:

• In a pure comparative fault + joint and several jurisdiction, the plaintiff’s total damages are reduced by the plaintiff’s percentage of fault, but any one defendant may still be liable for the entire remaining amount.
• Modern statutes often limit joint and several liability when comparative fault applies, adopting modified rules (thresholds, economic-only J&S, or pure several liability).

Note:

• Some jurisdictions provide that a defendant who is less than a threshold percentage at fault (such as 10% or 25%) is only severally liable—responsible only for that share of the damages.
• Many statutes reallocate an uncollectible share among the remaining parties according to fault.

On the MBE, always follow the specific instructions in the problem. If the question says “pure comparative negligence and pure several liability,” the plaintiff can only recover each defendant’s percentage share of fault.

Settlements and Releases

If one defendant settles with the plaintiff, the effect on remaining defendants depends on the jurisdiction’s approach to credits and contribution.

Key Term: Pro Tanto Credit
A method under which the judgment against non-settling defendants is reduced by the dollar amount of the settlement, regardless of the settling defendant’s proportion of fault.

Key Term: Pro Rata Credit
A method under which the judgment against non-settling defendants is reduced by the settling defendant’s equitable share of the damages (typically based on percentage of fault), not by the settlement amount.

In most jurisdictions on the MBE:

• A good-faith settlement usually discharges the settling defendant from further liability to the plaintiff for that injury.
• The settlement reduces the plaintiff’s recovery against non-settling defendants by either:
  • The settlement amount (pro tanto), or
  • The settling defendant’s percentage of fault (pro rata),
    depending on the applicable statute.
• A good-faith settlement typically bars contribution claims against the settling defendant, but non-settling defendants may still pursue contribution among themselves.
• A release does not automatically release non-settling defendants unless the agreement explicitly says so.

Key Term: Satisfied Judgment
Once the plaintiff has collected the full amount of damages for an injury from any defendant or combination of defendants, the judgment is “satisfied,” and the plaintiff cannot continue to pursue other joint tortfeasors for additional money for that same injury.

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 30% share, may seek contribution from A for $70,000 (A’s share of fault), subject to whatever contribution rules the jurisdiction applies.

Worked Example 1.2

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 and bears the risk that C is not sued or is judgment-proof.

Worked Example 1.3

Two drivers, E and F, negligently collide, pushing E’s car into a pedestrian, P. P suffers a single broken leg. A jury finds E 20% at fault and F 80% at fault. The jurisdiction follows joint and several liability with pure comparative fault. P is found 10% at fault for jaywalking. P’s total damages are $200,000.

Answer:
First reduce P’s damages for P’s own negligence: $200,000 × 90% = $180,000. Because joint and several liability applies, P may recover the entire $180,000 from either E or F (or partly from each). A defendant who pays more than their share may then seek contribution based on the 20%/80% allocation between E and F.

Worked Example 1.4

G negligently injures P in the course of employment for Employer Co. P sues both G and Employer Co. under respondeat superior. A jury finds P’s damages are $300,000 and finds G negligent but Employer Co. free of direct negligence (e.g., no negligent hiring). Joint and several liability applies.

Answer:
Both G and Employer Co. are vicariously liable for the entire $300,000. P may collect the full amount from Employer Co., G, or both. If Employer Co. pays the full judgment and G was the actively negligent party, Employer Co. may seek indemnity from G for the entire $300,000.

Worked Example 1.5

H, I, and J negligently injure P. P’s total damages are $500,000. A jury assigns fault: H 10%, I 40%, J 50%. The jurisdiction has a statute providing that defendants less than 15% at fault are liable only severally; all others are jointly and severally liable. P sues H and I only.

Answer:
H is only severally liable, so P can recover from H only H’s 10% share ($50,000). I, at 40% fault, is jointly and severally liable with any other defendant above the threshold (here J, who is not in the case). P can recover the remaining $450,000 from I, even though I was only 40% at fault. I may then seek contribution from J (50% at fault) for J’s equitable share if J can be joined and is solvent.

Worked Example 1.6

Two factories, K and L, negligently discharge pollutants into P’s lake over several years. The evidence shows both discharges contributed to P’s harm, but it is impossible to determine what proportion of the contamination is due to each. K is insolvent; L is solvent. The jurisdiction follows traditional joint and several liability.

Answer:
The pollution harm appears indivisible; therefore, K and L are jointly and severally liable. P may recover 100% of P’s damages from L. L would have a right of contribution against K, but because K is insolvent, L may ultimately bear the entire judgment. The risk of K’s insolvency falls on L rather than on P under joint and several liability.

Worked Example 1.7

M negligently injures P. N, a doctor, later treats P negligently, aggravating the original injury in a way that can be separated from M’s original harm. The jurisdiction follows traditional rules on successive tortfeasors and joint and several liability applies only to indivisible injuries.

Answer:
If the harm from M’s negligence can be distinguished from the additional harm caused by N’s malpractice, the injuries are divisible. M is liable for the original harm; N is liable for the aggravated harm. Joint and several liability does not apply between M and N for the separate, divisible components of P’s injury.

Worked Example 1.8

O and P are both negligent and cause a car accident injuring Q. Before trial, Q settles with O for $50,000 in a jurisdiction that uses a pro tanto credit and bars contribution against a settling defendant. Q’s total damages are later found to be $120,000 at trial against P.

Answer:
The judgment against P is reduced by the amount of the settlement (pro tanto). Thus, Q can recover $120,000 − $50,000 = $70,000 from P. P cannot seek contribution from O because a good-faith settlement by O bars contribution claims against the settling defendant.

Exam Warning

In some jurisdictions, if a defendant is less than a threshold percentage at fault (e.g., 10% or 25%), joint and several liability does not apply, and that defendant is only severally liable. In others, joint and several liability may apply only to economic damages. Always check for statutory modifications in the fact pattern and apply them exactly as stated.

Revision Tip

On the MBE, if the question does not specify a statutory modification, assume traditional joint and several liability applies to indivisible injuries, even in comparative negligence jurisdictions. Be careful to separate two questions: (1) what the plaintiff can recover from each defendant, and (2) how defendants can seek contribution or indemnity from each other.

Key Point Checklist

This article has covered the following key knowledge points:

• Joint and several liability makes each joint tortfeasor liable to the plaintiff for the full amount of an indivisible injury; the plaintiff may fully recover from any one defendant.
• Several liability (including pure several liability) limits each defendant’s responsibility to their own percentage share of fault, shifting the risk of insolvent defendants to the plaintiff.
• Modified joint and several liability systems often preserve joint and several liability above a fault threshold or for economic damages only; always follow any statutory details in the problem.
• Contribution allows a defendant who has paid more than their equitable share to recover from other liable defendants; indemnity applies in special relationships and shifts the entire loss to the primarily responsible party.
• Comparative fault reduces the plaintiff’s recovery by the plaintiff’s own percentage of fault and interacts with joint and several liability according to local statute.
• A satisfied judgment (full payment) for a given injury bars further recovery against other joint tortfeasors for that injury but does not bar contribution or indemnity claims among defendants.
• Settlements by one defendant usually reduce the total judgment against non-settling defendants and often bar contribution claims against the settling defendant, but do not automatically release others unless the release so provides.

Key Terms and Concepts

• Joint and Several Liability
• Joint Tortfeasor
• Indivisible Injury
• Divisible Injury
• Several Liability
• Modified Joint and Several Liability
• Contribution
• Indemnity
• Vicarious Liability
• Alternative Liability
• Comparative Fault
• Pro Tanto Credit
• Pro Rata Credit
• Satisfied Judgment