Joint and several liability, contribution, indemnity, and settlement

Black-letter propositions

1. 01

   Under joint and several liability, each tortfeasor is liable for the whole indivisible injury, so the plaintiff may collect the full judgment from any one of them; the Multistate Bar Examination assumes joint and several liability and pure comparative fault unless the question says otherwise.

2. 02

   A tortfeasor who pays more than her share may seek contribution from the others in proportion to their fault, which puts the risk of a co-defendant's insolvency on the defendants rather than on the plaintiff; a several-liability jurisdiction instead limits each defendant to its own share.

3. 03

   Contribution is enforced only after a tortfeasor has paid more than her pro rata share and only for the excess, and California's statute denies contribution to a tortfeasor who intentionally injured the plaintiff and to one who is entitled to indemnity from another.

4. 04

   Statutes can modify joint liability: California's Proposition 51 makes each defendant liable for non-economic damages only in proportion to its percentage of fault, while economic damages stay joint.

5. 05

   A good-faith release of one tortfeasor does not discharge the others unless it says so, but it reduces the claim against them, in California by the amount stated or paid, whichever is greater, and in New York by the greatest of that amount or the released tortfeasor's equitable share; a good-faith settlement also bars contribution claims against the settling tortfeasor.

6. 06

   Alternative liability under Summers v. Tice and market share liability under Sindell v. Abbott Laboratories shift the burden to defendants when the plaintiff cannot tell which one caused the harm, and market share liability, which only a handful of states recognize, apportions damages by each defendant's share of the market.

Use this attack sequence under time

Common wrong turns

• A jury finding of a defendant's percentage matters for contribution even where the plaintiff may collect everything from one defendant.
• A settlement credit is a dollar figure or share taken off the judgment, not a percentage of fault assigned to the settling party unless the statute says so.
• An intentional tortfeasor generally cannot seek contribution from a negligent co-defendant.

Worked example

Two negligent drivers injure a passenger, and the jury finds the passenger 20 percent at fault, the first driver 50 percent, and the second 30 percent on $100,000 in damages.

Practice this topic

Joint and several liability and contribution

Cornell's Wex entry explains that when two or more parties are jointly and severally liable, each is independently liable for the full extent of the injury, so the plaintiff may collect the whole judgment from any one of them, who may then seek contribution from the others. Its example has A, B and C negligently injuring V for $1,000,000, and V may demand the full amount from A. The entry notes that the rule shifts the risk of a judgment-proof defendant onto the other defendants.

Wex's entry on contribution gives a two-defendant example. V wins $100,000, the jury finds A 10 percent responsible and B 90 percent, and V collects the whole amount from A, who then demands $90,000 from B. In a several liability jurisdiction, by contrast, V could collect at most $10,000 from A. California Code of Civil Procedure section 875 adds that contribution may be enforced only after a tortfeasor has paid more than her pro rata share, only for the excess, that no contribution runs in favor of a tortfeasor who intentionally injured the plaintiff, and that where one tortfeasor is entitled to indemnity from another there is no contribution between them.

Statutes that limit joint liability

California's Fair Responsibility Act, Proposition 51, is a hybrid. Civil Code section 1431 presumes that an obligation imposed on several persons is joint, except as section 1431.2 provides. Section 1431.2 says that in actions for personal injury, property damage or wrongful death based on comparative fault, each defendant's liability for non-economic damages is several only and in direct proportion to its percentage of fault. It defines economic damages as objectively verifiable monetary losses, such as medical expenses and lost earnings, and non-economic damages as subjective losses such as pain, suffering and loss of consortium.

In Li v. Yellow Cab Co., the California Supreme Court replaced contributory negligence with a system of pure comparative negligence, so that a negligent plaintiff's damages are reduced in proportion to her own fault.

Settlements and unidentified defendants

California Code of Civil Procedure section 877 says a good-faith release of one tortfeasor does not discharge the others unless its terms so provide, but it reduces the claims against them by the amount stipulated or paid, whichever is greater, and discharges the settling party from contribution liability. Section 877.6 lets a party seek a determination that a settlement was in good faith, and a favorable determination bars other tortfeasors from further claims against the settling party for comparative contribution or indemnity. New York General Obligations Law section 15-108 uses a different measure. The claim is reduced by the greatest of the amount stipulated, the consideration paid, or the released tortfeasor's equitable share of the damages.

When the plaintiff cannot tell which defendant caused the harm, Summers v. Tice shifts the burden of proof to defendants who acted negligently toward the plaintiff. Sindell v. Abbott Laboratories, a DES case, held that a plaintiff who joins the manufacturers of a substantial share of the appropriate market may recover, and that each defendant is liable for the proportion of the judgment represented by its share unless it shows that it could not have made the product that injured her. Wex notes that only a handful of states recognize market share liability.

Frequently asked questions