JOINT & SEVERAL LIABILITY
Joint tortfeasors are two or more individuals who either (1) act in concert to commit a tort, (2) act independently but cause a single indivisible tortious injury, or (3) share responsibility for a tort because of vicarious liability.
Under traditional common law, each joint tortfeasor is “jointly and severally” liable for the plaintiff's total damages. This means that each individual is fully liable to the plaintiff for the entire damage award. If the plaintiff is unable to collect a co-tortfeasor's portion of the liability, the tortfeasor(s) from whom the plaintiff can collect are responsible for the other tortfeasor's (s') share. [See Restatement § 876.]
[A] Acting in Concert
“Acting in concert” is the tort equivalent of being a criminal accessory or co-conspirator. If an individual intentionally aids or encourages another to commit a tort, he is as liable as the individual who actually committed the physical acts of the tort. [See, e.g., Bierczynski v. Rogers, 239 A.2d 218 (Del. Super. Ct. 1968).]
[B] Independent Acts Causing a Single Indivisible Injury
Two or more individuals who act independently but whose acts cause a single indivisible tortious injury are also joint tortfeasors. [See, e.g., Bartlett v. New Mexico Welding Supply, Inc., 646 P.2d 579 (N.M. Ct. App. 1982).]
[C] Vicarious Liability
A defendant may be jointly liable for the actions of another through vicarious liability. Vicarious liability automatically imposes tort responsibility on a defendant because of his relationship with the wrongdoer. The most frequent example of vicarious liability is when employers are held liable under a theory of respondeat superior for the actions of employees within the scope of their employment. [See, e.g., Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972).]
[A] Allocations of Liability Among Joint Tortfeasors
Traditionally, each liable defendant, if able, paid an equal pro rata share of the damages to the plaintiff based on the number of joint tortfeasors. This traditional approach has now been replaced in many states by a system of comparative allocations of responsibility among joint tortfeasors.
Under a comparative approach, instead of dividing liability equally by the number of joint tortfeasors, liability is divided by the proportion of responsibility each tortfeasor bears to the plaintiff for his injury.
In the absence of a reform statute, this comparative allocation does not necessarily alter joint liability. Each tortfeasor may still be responsible for insuring the plaintiff is paid the full judgment in the event it is impossible to collect from some tortfeasors. [See, e.g., American Motorcycle Association v. Superior Ct., 578 P.2d 899 (Cal. 1978).]
[B] Impact of Settlement on Percentage Shares
When one or more tortfeasor makes a pretrial agreement to pay off her share of the damages awarded to the plaintiff, such settlements usually precede the court's determination of each tortfeasor's relative liability. Courts must determine how the settlement impacts on the relative share of the liability of the remaining defendants to the plaintiff. States have generally opted for one of two approaches.
Under the approach adopted by a majority of states, the settling defendant's percentage of fault, as determined by the fact-finder, is deducted from the damages awarded the plaintiff regardless of the actual cash payment made by the settling defendant to the plaintiff. [See Restatement (Third) of Torts, Apportionment Liability § 16, which endorses this method of apportionment.] In this case, the plaintiff risks losing part of his ultimate recovery if he accepts too small a payment from a settling defendant.
The minority approach allows the settling defendant's payment to be deducted from the final total damages owed to the plaintiff. This results in the remaining joint tortfeasors paying the full damage amount actually awarded to the plaintiff minus the settling defendant's payment, even if that increases the percentage of the damages for which the remaining defendants were originally liable. Jurisdictions utilizing this approach generally require a “good faith” hearing to confirm that the settlement is not a conspiracy by the plaintiff and the settling defendant to make another defendant pay an excessive share.
Under joint and several liability principles, the tortfeasor sued must still bear full responsibility for the injury to the plaintiff. With the exception of tortfeasors liable for intentional torts, a defendant required to pay the plaintiff more than her share of the damage judgment (under either a pro rata or comparative system) can now seek in most states appropriate contribution from her co-tortfeasor. (But see Restatement (Third) of Torts, Apportionment of Liability § 1 cmt. c, endorsing comparative responsibility for both intentional as well as negligent defendants.]
The tortfeasor seeking a contribution must prove the others liable. Normally, procedural rules allow one defendant in an action to "implead" or file a claim against other potential tortfeasors who have not been named as defendants by the initial plaintiff so that their liability for contribution can be determined in the same proceeding. Alternatively, a tortfeasor can also file a separate action for contribution, provided the statute of limitations has not expired.
Historically, courts have allowed a defendant to seek “indemnification” or total reimbursement from another tortfeasor when the defendant was only technically liable, but the other tortfeasor was far more culpable. The more culpable tortfeasor is sometimes characterized as the “active” as opposed to the “passive” tortfeasor. Such indemnification was allowed by courts prior to the general acceptance of contribution discussed above. Unlike contribution, the defendant's liability is always completely shifted to the other tortfeasor.
The trend toward comparative contribution has, in many instances, blurred the distinction between the two actions since there is nothing in theory precluding a finding under comparative contribution that one tortfeasor should be fully responsible. This has prompted some courts to allow only comparative contribution and not indemnification, except when indemnification is based on a contract or the party seeking indemnification was only vicariously liable.
[D] Reform Statutes
Since courts started comparing the relative responsibility of defendants, the concept of “joint and several” liability among defendants has been increasingly attacked. Numerous reform statutes have limited or altered joint and several liability rules in many states. [See, e.g., Cal. Civ. Code § 1431, limiting joint and several liability to economic damages.]