Negligence - Questions of apportionment of responsibility among multiple tortfeasors

Learning Outcomes

After reading this article, you will be able to identify and apply the rules governing the allocation of responsibility among multiple tortfeasors in negligence cases. You will understand the concepts of joint and several liability, contribution, comparative fault, and how these doctrines affect a plaintiff’s ability to recover damages. You will also be able to analyze MBE-style questions involving apportionment of responsibility.

MBE Syllabus

For the MBE, you are required to understand how responsibility is shared among multiple negligent defendants. This includes the doctrines that determine whether each defendant is liable for the entire harm or only a portion, and how damages may be allocated or recovered. You should be prepared to:

  • Define and distinguish joint and several liability, several liability, and pure several liability.
  • Explain the right of contribution among tortfeasors and when indemnity may apply.
  • Apply comparative fault and contributory negligence principles to multiple-defendant scenarios.
  • Determine how damages are apportioned and collected from multiple defendants.
  • Recognize the effect of settlements, releases, and satisfaction on remaining claims and parties.

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. In a jurisdiction following pure several liability, if a plaintiff is injured by two negligent defendants, each found 50% at fault, and one defendant is insolvent, how much can the plaintiff recover from the solvent defendant?
    1. 0%
    2. 50%
    3. 100%
    4. 75%
  2. What is the effect of joint and several liability on a plaintiff’s ability to recover damages?
    1. The plaintiff may recover only from the most at-fault defendant.
    2. The plaintiff may recover the full amount from any one defendant.
    3. The plaintiff must sue all defendants together.
    4. The plaintiff’s recovery is limited to the number of defendants.
  3. Which of the following best describes contribution among tortfeasors?
    1. It allows a defendant to recover the entire judgment from another.
    2. It allows a defendant who paid more than their share to seek partial reimbursement from other liable defendants.
    3. It is available only in intentional tort cases.
    4. It is not allowed in comparative fault jurisdictions.

Introduction

When more than one defendant is responsible for a plaintiff’s injury, the law must determine how liability and damages are apportioned among them. This is a frequent issue in negligence cases, and the rules governing apportionment can significantly affect both plaintiffs and defendants. The main doctrines tested on the MBE are joint and several liability, contribution, indemnity, and comparative fault.

Key Term: Joint and Several Liability A rule under which each defendant is individually liable for the entire amount of the plaintiff’s damages, regardless of their individual share of fault.

Key Term: Several Liability A rule under which each defendant is liable only for their proportionate share of the plaintiff’s damages, based on their percentage of fault.

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

Key Term: Indemnity The right of one party to recover the entire amount of a judgment from another party, usually where the latter is primarily responsible.

Key Term: Comparative Fault A system that reduces the plaintiff’s recovery in proportion to their own share of fault and may also allocate damages among multiple defendants according to their respective fault.

Apportionment of Responsibility: Core Doctrines

Joint and Several Liability

Under joint and several liability, each tortfeasor who is found liable for the plaintiff’s indivisible injury is responsible for the entire amount of damages. The plaintiff may collect the full judgment from any one defendant or from all defendants in any combination, up to the total amount awarded. If one defendant pays more than their share, that defendant may seek contribution from the others.

Joint and several liability is most commonly applied where the defendants acted in concert, or where their independent acts combined to cause an indivisible injury.

Several Liability (Pure Several Liability)

Some jurisdictions have abolished joint and several liability in favor of several (or “proportionate”) liability. Here, each defendant is liable only for their own percentage of fault. If one defendant is unable to pay, the plaintiff cannot recover that share from the others.

Contribution Among Tortfeasors

A defendant who pays more than their allocated share of the judgment under joint and several liability may seek contribution from other liable defendants. Contribution divides the loss among all responsible parties, usually in proportion to their fault.

Contribution is not available for intentional torts in most jurisdictions.

Indemnity

Indemnity allows a defendant who is only secondarily liable (such as a vicariously liable employer) to recover the entire amount paid from the party who was primarily at fault. Indemnity is also available by contract or in certain strict liability and products liability situations.

Comparative Fault and Multiple Defendants

In comparative fault jurisdictions, the plaintiff’s recovery is reduced by their own percentage of fault. The remaining damages are then apportioned among the defendants according to their respective percentages of fault. Some comparative fault jurisdictions retain joint and several liability, while others use pure several liability.

Satisfaction, Release, and Settlement

If the plaintiff settles with one defendant, the effect on the remaining defendants depends on the jurisdiction and the terms of the settlement. A full satisfaction of the judgment bars further recovery. A release of one tortfeasor may or may not release others, depending on the jurisdiction and the intent of the parties.

Worked Example 1.1

Plaintiff is injured in a car accident caused by the negligence of Driver A (60% at fault) and Driver B (40% at fault). Plaintiff is found 10% at fault. The total damages are $100,000. The jurisdiction follows joint and several liability.

Question: How much can Plaintiff recover from Driver A?

Answer: Plaintiff’s recovery is first reduced by their own fault: 100,000–100,000 – 10,000 = 90,000.Underjointandseveralliability,Plaintiffmayrecoverthefull90,000. Under joint and several liability, Plaintiff may recover the full 90,000 from either Driver A or Driver B. If Plaintiff collects the full amount from Driver A, Driver A may seek contribution from Driver B for 36,000(4036,000 (40% of 90,000).

Worked Example 1.2

Suppose the same facts as above, but the jurisdiction follows pure several liability.

Question: How much can Plaintiff recover from Driver A?

Answer: Plaintiff’s recovery is still reduced by their own fault to 90,000.Underpureseveralliability,Plaintiffmayrecoveronly90,000. Under pure several liability, Plaintiff may recover only 54,000 (60% of 90,000)fromDriverA,and90,000) from Driver A, and 36,000 (40% of $90,000) from Driver B. If Driver B is insolvent, Plaintiff cannot recover B’s share from A.

Exam Warning

In some comparative fault jurisdictions, a plaintiff who is more at fault than any defendant may be barred from recovery. Always check whether the jurisdiction follows “pure” or “modified” comparative fault.

Revision Tip

Remember: In joint and several liability jurisdictions, the plaintiff can recover the entire judgment from any one defendant, but in several liability jurisdictions, each defendant pays only their share.

Key Point Checklist

This article has covered the following key knowledge points:

  • Joint and several liability allows the plaintiff to recover the full judgment from any liable defendant.
  • Several liability limits each defendant’s responsibility to their own share of fault.
  • Contribution allows a defendant who overpays to seek reimbursement from other liable defendants.
  • Indemnity shifts the entire loss to the party primarily responsible.
  • Comparative fault reduces the plaintiff’s recovery and may affect allocation among defendants.
  • The effect of settlement, release, or satisfaction depends on the jurisdiction and the agreement.

Key Terms and Concepts

  • Joint and Several Liability
  • Several Liability
  • Contribution
  • Indemnity
  • Comparative Fault
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