Negligence - Questions of apportionment of responsibility am...

Learning Outcomes

This article explains apportionment of responsibility among multiple tortfeasors in negligence, including:

• Recognizing fact patterns that trigger joint and several liability, several liability, or pure several liability, and matching each regime to the correct default MBE assumptions.
• Determining whether an injury is divisible or indivisible, allocating damages among multiple tortfeasors accordingly, and identifying which party bears the burden of proving apportionment.
• Calculating a plaintiff’s recoverable damages step‑by‑step when there are multiple defendants, comparative or contributory negligence, and different liability regimes, ensuring precision with numbers that commonly appear on the MBE.
• Distinguishing contribution from indemnity, including when contribution is barred, when indemnity is available for vicarious or secondary liability, and how these remedies reallocate loss without affecting the plaintiff’s judgment.
• Evaluating how settlements, releases, covenants not to sue, and satisfaction alter remaining claims, contribution rights, and the maximum additional amount a plaintiff can collect from non‑settling defendants.
• Applying comparative and contributory negligence rules to complex multi‑party questions, spotting jurisdictional variations (pure vs modified comparative fault, pure several vs joint and several liability), and eliminating distractor answer choices that misapply those rules.

MBE Syllabus

For the MBE, you are required to understand apportionment of responsibility among multiple tortfeasors, with a focus on the following syllabus points:

• 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, covenants not to sue, 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.
4. A jurisdiction follows joint and several liability and pure comparative negligence. The jury finds total damages of 200,000,withtheplaintiff20a)200,000, with the plaintiff 20% at fault, Defendant A 30% at fault, and Defendant B 50% at fault. How much may the plaintiff collect from Defendant B? a) 200,000,withtheplaintiff20a)80,000
   1. 100,000c)100,000
   2. $160,000

Introduction

When more than one defendant is responsible for a plaintiff’s injury, the law must determine how liability and damages are shared 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, several liability (including pure several liability), contribution, indemnity, and comparative fault.

On the MBE, unless the question clearly specifies otherwise, assume:

• The jurisdiction recognizes negligence with joint and several liability for indivisible injuries; and
• The jurisdiction uses comparative fault (often pure comparative), not contributory negligence.

Questions will frequently tell you when a jurisdiction deviates from these assumptions (for example, by adopting “pure several liability” or “partial comparative negligence”). Always follow the facts given.

Key Term: Joint and Several Liability
A rule under which each defendant who is liable for an indivisible injury is individually liable for the entire amount of the plaintiff’s damages, regardless of that defendant’s 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 that defendant’s percentage of fault.

Key Term: Pure Several Liability
A form of several liability in which each defendant is liable only for their allocated share of damages, and no defendant can ever be made to pay more than that share. The plaintiff bears the risk that another defendant is insolvent or absent.

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 or vicariously responsible.

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

Key Term: Contributory Negligence
A doctrine under which any negligence by the plaintiff (even 1%) is a complete bar to recovery. A few states still follow this rule.

Key Term: Satisfaction
Full payment of a judgment. Once the plaintiff has obtained one full satisfaction of the claim, no further recovery may be had against any other tortfeasor for the same injury.

Key Term: Release
A written agreement by which the plaintiff gives up the right to pursue a claim against a particular tortfeasor. Modernly, releasing one tortfeasor does not automatically release others unless the agreement so provides.

Key Term: Covenant Not to Sue
An agreement by which the plaintiff promises not to sue a particular tortfeasor, while reserving the right to proceed against others.

Key Term: Vicarious Liability
Liability imposed on one party (such as an employer) for the torts of another (such as an employee) based on the relationship between them, even if the vicariously liable party was not personally at 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.

Once the plaintiff has obtained satisfaction (full payment), the claim is extinguished as to all joint tortfeasors. The plaintiff cannot recover more than 100% of the damages, but is free to choose whom to pursue.

Joint and several liability is most commonly applied where:

• The defendants acted in concert (e.g., drag racing); or
• Their independent acts combine to cause a single, indivisible injury (e.g., multiple negligent drivers causing one crash).

If multiple tortfeasors cause divisible harm (for example, separate injuries at different times), each is liable only for the harm that they caused. The burden is generally on the defendant who seeks to avoid responsibility for the entire injury to show that the harm can be reasonably divided.

Exam Tip: Unless the question tells you the jurisdiction has abolished or modified joint and several liability, treat multiple negligent defendants causing the same injury as jointly and severally liable on the MBE.

When one jointly and severally liable defendant pays more than that defendant’s fair share, the defendant’s remedy is a separate claim for contribution, not a reduction of the plaintiff’s judgment.

Several Liability (Pure Several Liability)

Some jurisdictions have abolished joint and several liability in favor of several (or “proportionate”) liability. Under several liability, each defendant is liable only for their own share of the plaintiff’s damages. Under pure several liability, no defendant can be compelled to pay more than that share.

Consequences in pure several liability jurisdictions:

• The plaintiff bears the risk that one defendant is insolvent, immune, or absent.
• If one defendant cannot pay, the plaintiff cannot shift that loss to other defendants.
• Because no defendant ever pays more than their own share, contribution is generally unnecessary and often not recognized.

Divisible vs. Indivisible Injury

Apportionment rules assume an indivisible injury unless the evidence supports division.

• Indivisible injury: Harm that cannot reasonably be separated (e.g., a single broken leg). Multiple negligent defendants whose conduct substantially contributed to that injury are jointly and severally liable in jurisdictions that recognize joint and several liability.
• Divisible injury: Harm that can be apportioned (e.g., separate collisions causing distinct injuries, or separate polluters contaminating different parcels at distinct times).

If a defendant argues that damages are divisible, that defendant generally bears the burden of producing evidence that permits a reasonable apportionment. If the defendant fails to meet that burden, the harm is treated as indivisible, and joint and several liability applies (in jurisdictions that retain it).

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:

• Does not affect the plaintiff’s right to full recovery.
• Reallocates the loss among defendants after the plaintiff has been paid.

Approaches to measuring contribution:

• Equal shares (pro rata): Each defendant ultimately bears an equal portion of the judgment, regardless of comparative fault.
• Proportionate to fault: Each defendant ultimately bears a portion of the judgment equal to that defendant’s percentage of fault (this approach aligns with comparative fault and is increasingly common).

Most jurisdictions do not allow contribution for intentional torts. A defendant liable only vicariously (e.g., an employer) may seek indemnity instead, as discussed below.

In pure several liability jurisdictions, contribution generally is unnecessary, because no defendant can be required to pay more than that defendant’s own share.

Indemnity

Indemnity allows a defendant who is only secondarily or vicariously liable to shift the entire loss to another party who is primarily responsible.

Common indemnity situations:

• Vicarious liability: An employer held liable for an employee’s negligence may seek indemnity from the employee.
• Strict products liability chains: A retailer or distributor who is strictly liable may seek indemnity from the manufacturer.
• Contractual indemnity: A contract may expressly require one party to indemnify another (for example, a subcontractor agreeing to indemnify a general contractor).

Indemnity is all-or-nothing: the indemnitee recovers 100% of what it paid.

Comparative Fault and Multiple Defendants

In comparative fault jurisdictions, the plaintiff’s recovery is reduced by the plaintiff’s own percentage of fault. There are two main versions:

• Pure comparative fault: The plaintiff can recover even if more at fault than all defendants combined; the recovery is simply reduced by the plaintiff’s percentage of fault.
• Modified (partial) comparative fault: The plaintiff is barred from recovery if the plaintiff’s fault exceeds a threshold (commonly more than 50%, or 50% or more, depending on the jurisdiction).

After reducing for the plaintiff’s fault, the remaining damages are apportioned among the defendants according to their respective percentages of fault.

How that apportionment translates into what each defendant must pay depends on whether the jurisdiction uses joint and several liability or pure several liability:

• Comparative fault + joint and several liability:

  • Step 1: Reduce damages by plaintiff’s percentage of fault.
  • Step 2: Plaintiff may collect the entire reduced amount from any one defendant.
  • Step 3: That defendant may then seek contribution from co-defendants in proportion to their fault (if the jurisdiction uses proportionate contribution).

• Comparative fault + pure several liability:

  • Step 1: Reduce damages by plaintiff’s percentage of fault.
  • Step 2: Each defendant is liable only for that defendant’s percentage of the total fault, applied to the adjusted damages.
  • Step 3: If a defendant is insolvent or absent, the plaintiff cannot shift that share to others.

Satisfaction, Release, and Settlement

Apportionment rules interact closely with settlements.

• Satisfaction: Once the plaintiff has obtained one full satisfaction of the judgment (from one or more defendants), the claim is discharged. The plaintiff cannot recover further from any other tortfeasor for the same injury.

• Release and Covenant Not to Sue:

  • At common law, release of one joint tortfeasor automatically released all, which discouraged partial settlements.
  • Modernly, a release or covenant not to sue one tortfeasor does not release others unless the agreement expressly so states.
  • A settling tortfeasor is typically protected against contribution claims by non-settling tortfeasors; in exchange, the plaintiff’s claim against non-settling defendants is reduced either:
    • By the amount of the settlement (pro tanto credit), or
    • By the percentage of fault allocated to the settling defendant (pro rata credit), depending on the jurisdiction.

The exam will usually specify which reduction method applies, if it matters.

Exam Tip: A settlement with one defendant reduces what the plaintiff can still collect from the others, but it does not entitle non-settling defendants to pay less than the plaintiff’s remaining uncompensated damages.

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 with pure comparative fault.

Question: How much can Plaintiff recover from Driver A?

Answer:
First, reduce for Plaintiff’s own fault: $100,000 × 90$90,000.
Under joint and several liability, Plaintiff may recover the entire $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 (40% of the $90,000).

Worked Example 1.2

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

Question: How much can Plaintiff recover from Driver A?

Answer:
Plaintiff’s recoverable damages are still $90,000 after reducing for Plaintiff’s 10% fault.
Under pure several liability, each defendant is liable only for their share of fault among defendants. Driver A is 60% at fault and Driver B is 40% at fault, so:

• Driver A is liable for $60,000.
• Driver B is liable for $30,000.
  If Driver B is insolvent, Plaintiff cannot recover B’s share from A.

Worked Example 1.3

A water skier sues both the driver of the boat and the spotter for neck injuries. The jury finds:

• Plaintiff: 10% at fault
• Driver: 30% at fault
• Spotter: 60% at fault

Total damages are $100,000. The jurisdiction recognizes pure several liability and pure comparative fault. The plaintiff decides to collect only from the spotter.

Question: What is the maximum amount Plaintiff can recover from the spotter?

Answer:
Plaintiff’s own negligence reduces the total damages to $90,000. Under pure several liability, each defendant is liable only for their share of fault among defendants:

• Combined defendant fault = 30% + 60% = 90%.
• Spotter’s share = 60% of the defendants’ fault.
  Spotter therefore owes 60% of the $90,000 recoverable damages, or$54,000. However, because the defendants’ percentages already sum to 90%, a simple way to compute is to ignore the plaintiff’s share and apply each defendant’s stated percentage to the $100,000:
• Driver: $30,000, Spotter:$60,000.
  Either method yields the same result: the most Plaintiff can collect from the spotter is $60,000. The spotter cannot recover anything from the driver because no defendant ever pays more than their own share in a pure several liability jurisdiction, so contribution is not available.

Worked Example 1.4

A plaintiff brings his car to a mechanic for a tune-up. The mechanic negligently removes a fuse for the brake lights and fails to replace it, so the brake lights do not work. On the way home, Plaintiff suddenly brakes to pick up a friend. The defendant driver, following behind, rear-ends Plaintiff. The jury finds:

• Plaintiff: 25% at fault
• Defendant driver: 50% at fault
• Mechanic: 25% at fault

Total damages are $10,000. The jurisdiction recognizes pure several liability and partial comparative negligence (plaintiff is barred only if more than 50% at fault).

Question: How much can Plaintiff collect from the defendant driver?

Answer:
Plaintiff’s own negligence (25%) does not bar recovery because it is not more than 50%.
Plaintiff’s recoverable damages are $10,000 × 75$7,500.
Under pure several liability, each defendant is liable only for that defendant’s share of fault among defendants. The combined defendant fault is 50% + 25% = 75%. The defendant driver’s share is 50% of total fault, which corresponds to $5,000. Plaintiff can collect$5,000 from the defendant driver.

Contributory Negligence and Multiple Defendants

In a pure contributory negligence jurisdiction, any negligence by the plaintiff is a complete bar to recovery, even if the defendants were also negligent. Questions may nonetheless ask you to identify how fault would be apportioned among multiple defendants if the plaintiff were allowed to recover (for example, under comparative fault). Always check what the question is actually asking.

Some contributory negligence jurisdictions recognize limited exceptions that still allow the plaintiff to recover, such as:

• Last clear chance: A negligent plaintiff may recover if the defendant had the last clear opportunity to avoid the harm and failed to do so.
• Reckless or intentional conduct by defendant: Contributory negligence is not a defense to reckless or intentional torts.

Exam Warning

In some comparative fault jurisdictions, a plaintiff who is more at fault than all defendants combined may be barred from recovery (modified comparative fault). In contributory negligence jurisdictions, any fault by the plaintiff can bar recovery. Always check whether the jurisdiction follows “pure” or “modified” comparative fault, or contributory negligence.

Revision Tip

Remember:

• In joint and several liability jurisdictions, the plaintiff can recover the entire judgment from any one defendant, then contribution reallocates the loss among defendants.
• In pure several liability jurisdictions, each defendant pays only their share; there is no contribution because no one pays more than their own portion.

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 one liable defendant for an indivisible injury.
• Several liability, and especially pure several liability, limits each defendant’s responsibility to that defendant’s own share of fault; the plaintiff bears the risk of an insolvent or absent defendant.
• Courts distinguish divisible from indivisible harm; defendants who claim divisibility generally bear the burden of proving a reasonable basis for apportionment.
• Contribution allows a defendant who overpays under joint and several liability to seek reimbursement from other liable defendants, usually in proportion to fault.
• Indemnity shifts the entire loss from a party who is secondarily or vicariously liable to the party primarily responsible, and may also arise by contract.
• Comparative fault reduces the plaintiff’s recovery and provides a framework for allocating damages among multiple defendants; it can be pure or modified.
• Contributory negligence, in a minority of jurisdictions, bars recovery if the plaintiff was negligent at all, subject to narrow exceptions.
• Satisfaction, release, and covenants not to sue affect remaining claims and parties: one full satisfaction ends the claim, and settlement with one defendant reduces what can be recovered from others.
• In pure several liability jurisdictions, contribution is typically unavailable, because each defendant is liable only for that defendant’s share.
• On the MBE, assume joint and several liability and comparative fault unless the question clearly indicates a different regime.

Key Terms and Concepts

• Joint and Several Liability
• Several Liability
• Pure Several Liability
• Contribution
• Indemnity
• Comparative Fault
• Contributory Negligence
• Satisfaction
• Release
• Covenant Not to Sue
• Vicarious Liability