capacity to sue joint tortfeasors

1. CAPACITY TO SUE JOINT TORTFEASORS
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PROJECT TITLE
CAPACITY TO SUE JOINT TORTFEASORS
SUBJECT
LAW OF TORT
NAME OF THE FACULTY
DR. P. SRI DEVI
Name of the Candidate: ROHAN GUPTA
Roll No. 2016081
Semester: 1ST
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher; Dr. P. Sri Devi who gave me a
golden opportunity to do this wonderful project on the topic ‘CAPACITY TO SUE JOINT
TORTFEASORS’, which also helped me in doing a lot of research and I came to know so many new
things through this project. I am really thankful to my teacher.
Secondly, I would also like to thank my Parents who provided me with Financial assistance and their
moral support during this project. I would also like to thank my Friends who also helped me a lot
finalizing this project within limited time frame.
Lastly, I would like to thank God for always being there with me.
ROHAN GUPTA

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CONTENT
1) INTRODUCTION
2) NEGLIGENCE AS A TORT AND AS A CRIME
3) ESSENTIALS OF NEGLIGENCE
4) DEFENCES FOR NEGLIGECE
5) VOLENTI NON- FIT INJURIYA
6) CONTRIBUTORY NEGLIGENCE
7) CONCLUSION
8) BIBLIOGRAPHY

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INTRODUCTION
The rule of “joint and several liability” makes each of multiple defendants liable for the entirety of the
plaintiff’s loss, regardless of each defendants’ degree of fault. For example, a defendant who is only 5
percent at fault might end up paying the entirety of the plaintiff’s damages – especially if the other
defendants are insolvent. Obviously, where the rule applies it can have a significant impact on the
parties’ assessment of the case. In cases with multiple defendants, defendants must know whether “joint
and several” liability applies. If it does, it might determine the decision to defend or settle a case. In
evaluating cases with multiple defendants, to start, defendants are advised to learn the answer to the
following key questions:
1. Does “joint and several,” “several” or some modified liability rule apply?
2. Is there a right to contribution among the defendants?
3. In case of a partial settlement, what becomes of the remaining defendants’ liability?
4. If the plaintiff is partially to blame for his own injuries, what effect does that have on the defendants’
liability?
This 50-state overview of the doctrine of joint and several liability provides the answer to these
questions for each of the U.S. states. As will be seen, while some states follow pure versions of either
the several-only or the joint and several liability rules, most states have adopted a middle-of-the road
approach. States have hybrid liability rules (where joint and several liability applies to some portion of
damages, such as the economic loss, and several-only liability applies to the rest) or variable rules
(where the type of liability turns on some aspect of the plaintiff’s cause of action, such as joint and
several liability being triggered only for intentional and environmental torts, or for a certain percentage
of fault).
A tort is a type of civil wrong for which a person adversely affected or injured thereby can claim
damages.1 Damages are sums of money, awarded by a court to compensate a person for loss or harm
resulting from civil wrongs, including torts.2 More than one tortfeasor may be involved in contributing
to a tort. Joint tortfeasors are responsible for the same wrongful act which results in a tort.3 The essence
of this project is the distinction at common law4 between a release5 and a covenant not to sue. 6 At

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common law, a release provided by an injured party to one joint tortfeasor prevents a claim being made
against any other joint tortfeasors.7 This is generally known as the “release bar rule.” Where, however, a
covenant not to sue is provided, an injured party is not prevented from making a claim against other
joint tortfeasors.8 This distinction is not widely known. It has been described as creating “a trap into
which the unwary fall but which the clever avoid.”9 Ordinarily, the Commission would issue a
Discussion Paper on a topic. After setting out the current state of Nova Scotia law on a particular
subject, the Discussion Paper would make suggestions for reform and would invite comments from
interested people. Comments received would be taken into account in the preparation of a Final Report,
which would contain the Commission’s final recommendations for reform. As this project involves a
small number of discrete issues, the Commission has decided to proceed directly to the publication of
this Final Report.

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A Primer on Joint and Several Liability
The Concept of “Joint and Several Liability” “Joint and several liability” allows a plaintiff to “sue for
and recover the full amount of recoverable damages from any [defendant].” Restatement (Third) of
Torts: Apportionment of Liability § 10 (2000). In its pure form, the practical effect of this doctrine is
that the plaintiff can recover the entire amount of damages from any of the jointly and severally liable
tort feasors, regardless of a particular defendant’s percentage share of fault. Joint and several liability is
meant to address the inequity that flows from a responsible actor being unable to pay. In such a case,
someone – the plaintiff or another defendant – will end up paying for the insolvent party’s share. States
are left with having to decide where to shift the risk created by the judgment-proof defendant. The
choice of who (between the remaining defendants and the plaintiff) will ultimately bear the risk is one of
policy, which the states pursue according to their own preferences. For states that choose to have
defendants bear this burden, joint and several liability is the preferred option. Where the doctrine
applies, the plaintiff is likely to search for a financially viable (that is, well-insured) defendant with a
sufficiently “deep pocket” to ensure full recovery. The Test for Application of the Doctrine Entities may
be joint and several tortfeasors if they are liable to the same person for the same harm. Notably, they
need not act at the same time or in any concerted way. Instead, the measure of joint and several liability
is whether the tortfeasors’ conduct produced an indivisible, single harm. For example, where multiple
contractors build a house and that house collapses due to faulty construction, the contractors are “jointly
and severally” liable. Similarly, where two or more drivers negligently cause a collision in which a
pedestrian is injured, the drivers are “jointly and severally” liable. Contribution Among Jointly and
Severally Liable Tortfeasors Jointly and severally liable defendants are generally (and theoretically)
entitled to recover from one another the percentage of damages attributable to the other’s conduct. The
reality, however, is that recovery by way of contribution can be thwarted by a judgment-proof
codefendant. Most often, this means a bankrupt party or one over whom jurisdiction could not be had.
Even where it is possible to collect from the other party at fault, the process of doing so can have
additional, sometimes significant, costs. The risk of third-party insolvency creates pressure for solvent
defendants (or those with higher policy limits) to settle – or else face the possibility of being held liable
for the entirety of damages with no codefendant from which to recover. The right to contribution works
to deter undue pressure to settle, but it is an imperfect remedy that does not completely eliminate the

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harshness of joint and several liability for defendants. Variations on a Theme The Restatement (Third)
of Torts discusses five different approaches to dealing with multiple tortfeasors. Restatement (Third) of
Torts: Apportionment of Liability § 17, comment a (2000). Each approach allocates the risk of
insolvency of one or more of the responsible tortfeasors differently. The first two approaches
systematically favor either defendants or plaintiffs in cases involving the insolvency of one of the
responsible actors. Pure joint and several liability places the risk of insolvency and the burden of
identifying nonparty tortfeasors on defendants. The second approach is pure several liability. This
approach allocates the risk of insolvency entirely to the plaintiff. Under pure several liability, the
plaintiff may recover from each, severally liable, defendant only the portion of damages that are
attributable to that defendant’s fault. Because the wholesale risk-shifting of these two approaches can
lead to grossly unfair results, many states have adopted varied or hybrid versions of these allocation
schemes. Some states attempt to alleviate the burden of insolvency through reallocation of the insolvent
party’s liability. Under this track, joint and several liability applies to the solvent defendants but the
comparative share of any insolvent tortfeasor is spread out among the remaining parties, sometimes the
plaintiff included, in proportion to their share of the fault. Another approach splits the risk of insolvency
between the plaintiff and the solvent defendants: It imposes joint and several liability on each tortfeasor
whose share of the harm exceeds a certain percentage of fault. Those tortfeasors who fall below the set
threshold are severally liable. The rest are jointly and severally liable. The effectiveness of this approach
turns on happenstance, not equity; however, because the more tortfeasors there are, the more likely it is
that each will have a relatively small percentage of fault. Consequently, this rule favors defendants when
there are many of them and it favors plaintiffs when there are few tortfeasors. The last major variation is
a hybrid one in which liability type is assigned based on the type of harm. Most commonly under this
approach, joint and several liability is applied to the plaintiff’s economic loss and several liability is
applied to noneconomic damages. The underlying policy consideration here values compensation for the
tangible, calculable economic loss and permits the risk of insolvency to rest on the plaintiff for his
intangible noneconomic losses. In addition to these variations, many states draw distinctions between
damages based on the type of action in which they are sought. Contract actions are frequently treated
differently from tort cases. In some states, distinctions are drawn between tort cases – while the risk of
loss might be on the plaintiff in a negligence case, joint and several liability will apply for intentional
torts or cases where the defendants act in concert. The Uniform Apportionment of Tort Responsibility
Act In 2003 the National Conference of Commissioners on Uniform Laws adopted the Uniform

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Apportionment of Tort Responsibility Act. This model legislation calls for apportionment of liability on
the several-only model. Exceptions are recognized for parties acting in concert and for those who fail to
prevent another from causing intentional harm. The model rule allows for reallocation of a defendant’s
share of the judgment if the plaintiff is unable to collect from that defendant. Under the proposed rule, in
such a circumstance the remaining defendants pay the portion of the uncollectable amount that
corresponds to their percentage of liability. A party’s payment of an amount greater than its
proportionate share gives rise to the right to contribution. Under this scheme, the plaintiff’s contributing
fault diminishes but does not bar the plaintiff’s right to recovery, provided that the plaintiff’s fault does
not exceed that of the defendants. With respect to partial settlement, the rule directs a pro rata reduction
of the judgment against the non-settling defendants, corresponding to the portion of the settling party’s
share of the fault. The Effect of Partial Settlement Additional differences exist between the jurisdictions
in their treatment of partial settlements; that is, cases where the plaintiff reaches a settlement agreement
with some, but not all, of the defendants. Jurisdictions tend to adopt either a pro rata or a pro tanto
method of apportionment of the settling defendant’s payment. The different approaches lead to sharply
different results and require different consideration by the defendants. As the Eleventh Circuit explains:
Assume, for example, that the negligence of A and B combine to injure C, who then files a lawsuit
against A and B. On the morning of trial A settles with C for $50,000. The jury subsequently finds that
A was 75% responsible and B was 25% responsible for the accident and that C’s damages totaled
$100,000. If neither party had settled, judgment would be entered against A for $75,000 and B for
$25,000. But given A’s settlement for $50,000, how much should B pay? Under a pro rata approach, B
would receive a credit for 75% of C’s damages ($75,000) because A, the settling joint tortfeasor, was
75% responsible for the accident. Thus, B would owe $25,000 ($100,000 - $75,000) to C. Under the pro
tanto approach, B would only receive a credit for the dollar value of A’s settlement ($50,000).

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Joint and Several Liability
Independent Probabilities
As a consequence of joint and several liability, the plaintiff recovers his full damages not only if he
prevails against both defendants but also if he prevails against one and loses to the other. When the
plaintiff’s probabilities of success against the two defendants are independent, each of four different
scenarios carries a probability of 25 percent: that the plaintiff prevails against both defendants, that the
plaintiff prevails against Row and loses to Column, that the plaintiff prevails against Column and loses
to Row, and that the plaintiff loses to both defendants. In the first three cases, carrying an aggregate
probability of 75 percent, the plaintiff recovers his full damages of $100. Thus, his expected recovery
from litigating with both defendants is $75. In turn, each defendant’s expected loss is $37.50. We
proceed by analyzing a situation in which litigation costs are zero. A risk-neutral plaintiff will not accept
a settlement with both defendants that yields less than $75, but would find acceptable an aggregate
settlement for 634 Joint Tortfeasors 3200 $75 or more. What would happen if the plaintiff made
settlement offers to the two defendants for $37.50 each, so that its aggregate recovery was equal to the
expected recovery of litigating against both defendants? If one defendant, say Row, accepted the offer,
would the other defendant accept it as well? Column would accept the settlement only if his expected
loss from litigation is at least $37.50. Under the pro tanto set-off rule, Column’s exposure in the event of
litigation is reduced to $62.50: the plaintiff’s damages of $100 minus Row’s settlement of $37.50. But
Column faces only a 50 percent probability of losing the litigation. Thus, in light of Row’s settlement,
its expected loss from litigation is only $31.25. It therefore follows that if the plaintiff were to make
offers of $37.50 to each defendant, at least one of them would reject the offer. The plaintiff’s expected
recovery would then be $68.75 (Row’s settlement of $37.50 plus an expected recovery of $31.25 from
litigating against Column). This amount is lower than the plaintiff’s expected recovery from litigating
against both defendants. Thus, the plaintiff would never make offers of $37.50 to each defendant.
Similar logic establishes that no other pair of offers would give the plaintiff an expected recovery of at
least $75 and yet be acceptable to the two defendants. Also, there is no scenario under which the

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plaintiff would receive an expected recovery of at least $75 by settling with one defendant and litigating
against the other. This phenomenon has two sources:
(1) the surplus that the plaintiff obtains from litigation as a result of joint and several liability when its
probabilities of success against the defendants are independent, and
(2) the benefit that a non-settling defendant receives from the set-off created by the plaintiff’s
settlement with the other defendant.
If the plaintiff were litigating against only one defendant rather than two,his expected recovery from
litigation would be $50 rather than $75: he would have a 50 percent probability of recovering from that
defendant its full damages of $100. Similarly, as we have indicated, if the plaintiff were litigating
against two defendants under non-joint liability, his expected recovery would also be $50: he has a 50
percent probability of recovering $50 from each of the defendants. Finally, if the plaintiff were litigating
against two defendants under joint and several liability but his probabilities of success against the
defendants were perfectly correlated, he would also have an expected recovery of only $50 (a 50 percent
probability of recovering his full damages if he prevails against both defendants). As a result of the
surplus that the plaintiff obtains from litigating under joint and several liability when the probabilities of
prevailing are independent, the plaintiff will not accept from one defendant a settlement that is too low
even if he intends to litigate against the other. Say, for example, that the plaintiff accepted a settlement
of $0 from Row and litigated against Column. His expected recovery would then be only $50 (a 50
percent probability of recovering $100); the settlement with Row would have reduced his expected
recovery by $25. If the plaintiff accepted a settlement of $10 from Row, his 3200 Joint Tortfeasors 635
expected recovery from litigating with Column would be $45 (a 50 percent probability of recovering
$90), for a total expected recovery of $55; the loss from the low settlement with Row would be $20. So
as not to lose his surplus, the plaintiff would thus have to demand a sufficiently high settlement from
Row. But a settlement that is sufficiently desirable for the plaintiff to accept confers a benefit upon
Column. If, for example, the plaintiff were to settle with Row for $25, Column’s expected loss from
litigation would be $37.50 - the same expected loss as if Row litigated. Any higher settlement with Row
reduces Column’s expected loss. We have already shown that a settlement with Row for $37.50 reduces
Column’s expected loss from $37.50 to $31.25, giving him a benefit of $6.25. In order to recover $75,
the plaintiff would have to obtain from Row a settlement of $50 (which would leave an expected
recovery from Column of $25 and confer upon Column a benefit of $12.50). Row, however, would not

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agree to such a settlement because, given that Column litigates, he is better off litigating as well and
facing an expected loss of only $37.50. We have thus illustrated why the plaintiff cannot capture the full
benefit of Row’s settlement if his probabilities of success are independent. Part of this settlement confers
an external benefit upon Column. It is this externality that stands in the way of settlement. Indeed, the
only way that the plaintiff can obtain the full benefit of a defendant’s payment is by litigating, because if
he settles, part of the benefit accrues to the other defendant, reducing the plaintiff’s expected recovery
from litigation. The role of joint and several liability in discouraging settlements is not limited to the
case in which litigation costs are zero. The externality described above also impairs the possibility of
settlement when litigation when litigation costs are positive but lower than a particular threshold.
Perfectly Correlated Probabilities The problem changes considerably when the plaintiff’s probabilities
of success against both defendants are perfectly correlated. If the plaintiff litigates against both
defendants, he either prevails against both (with a probability of 50 percent) or loses against both (also
with a probability of 50 percent). His expected recovery from litigation is $50 rather than $75; each
defendant’s expected loss is then $25. In the case of perfectly correlated probabilities, the plaintiff will
settle with both defendants. It is easy to see that the plaintiff will settle with at least one of the
defendants. Say that the plaintiff settles with Row for $10. He faces a 50 percent probability of
recovering $90 from Column, and his total expected recovery is $55 - $5 higher than his recovery from
litigating against both defendants. The effect of this settlement is to give the plaintiff $10 with certainty,
but reduce his expected recovery from litigation by $5. As a result, settlement with one defendant and
litigation against the other is always more attractive to the plaintiff than litigation against both
defendants. Unlike the 636 Joint Tortfeasors 3200 case of non-joint liability, where the parties are
indifferent between settlement and litigation when litigation costs are zero, here there is a positive
surplus that the plaintiff and a defendant can divide if a settlement takes place. It is also easy to show
that, for the example that we are analyzing, the plaintiff in fact settles with both defendants, for $25 and
$37.50, respectively. Given that Row settles for $25, Column’s expected loss through litigation is
$37.50 (a 50 percent probability of paying the plaintiff’s damages of $100 minus Row’s settlement of
$25), and would therefore accept a settlement for that amount. Moreover, given that Column settles for
$37.50, Row’s expected loss through litigation is $31.25 (a 50 percent probability of paying the
plaintiff’s damages of $100 minus Column’s settlement of $37.50), and would therefore prefer to settle
for $25. The same argument establishes that the plaintiff would be no better off settling with one
defendant and litigating against the other. We show elsewhere that, for perfectly correlated probabilities,

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the plaintiff settles with both defendants if their shares of the liability are sufficiently similar, and settles
with one defendant--the one with the larger share of the liability - and litigates against the other if the
defendant’s shares of the liability are sufficiently different (Kornhauser and Revesz, 1994a). The Effects
of Limited Solvency As indicated above, under non-joint liability, the limited solvency of the defendants
does not affect the choice between settlement and litigation. The situation is different under joint and
several liability. We consider first how limited solvency would affect the choice between settlement and
litigation if the plaintiff’s probabilities of success are independent. If one of the defendants, say Row,
has limited solvency, the plaintiff nonetheless litigates against both defendants if this solvency is above
a threshold. For example, if Row’s solvency is $80 and the plaintiff litigates against both defendants, his
expected recovery is $37.50 from Column but only $32.50 from Row (with a probability of 25 percent,
the plaintiff prevails against both defendants and recovers $50 from Row, and, also with a probability of
25 percent, the plaintiff prevails only against Row and recovers Row’s solvency of $80 rather than its
full damages of $100). In contrast, if the plaintiff settles with Column for $37.50, Row’s expected loss
from litigation, and consequently the maximum settlement that it would offer, would be only $31.25 (a
50 percent probability of paying the plaintiff’s damages of $100 minus Column’s settlement of $37.50).
When Row’s solvency is sufficiently low, however, the plaintiff settles with both defendants. Consider
the case in which Row’s solvency is $40. If the plaintiff litigates against both defendants his expected
recovery is $60 (with a probability of 25 percent, he prevails only against Column and recovers $100;
with a probability of 25 percent, he prevails against both and recovers $40 from Row and $60 from
Column; and with a probability of 25 percent, he prevails only against Row and recovers $40). In turn,
Row’s expected loss is $20 and Column’s expected loss is $40.
A tort is a type of civil wrong for which a person adversely affected or injured thereby can claim
damages. Damages are sums of money, awarded by a court to compensate a person for loss or harm
resulting from civil wrongs, including torts. Examples of torts include negligence, nuisance, and battery.
Negligence refers to unintentional damage caused by another person’s failure to take proper care.10
Someone, for instance, who operates a boat at night without necessary lights could be found negligent if
the lack of lights results in a collision with another boat. Nuisance is an activity or physical condition
which causes harm or annoyance.11 Nuisance might result where one homeowner burns trash on his or
her property, even though the resulting smoke makes it too unpleasant for adjoining neighbours to
venture into their backyard. Battery involves intentionally bringing about an offensive or harmful
contact with another person.12 For example, a physician who treats someone without obtaining the

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patient’s prior consent might be committing battery. A person seeking damages in the courts is the
plaintiff, the person against whom the plaintiff makes a claim is the defendant, and the court process by
which the claim is made is an action. 13 The plaintiff and defendant are often called the parties to an
action. If the court determines that the defendant’s tort has caused the plaintiff to suffer loss or harm,
then the defendant is deemed legally responsible or liable to compensate the plaintiff. People found
liable by a court for having committed a tort are known as tortfeasors. More than one tortfeasor may be
involved in contributing to a tort. Concurrent tortfeasors are two or more wrongdoers whose acts operate
together, or concur, to produce the same loss or harm to a plaintiff. Concurrent tortfeasors can be either
joint or several. Joint tortfeasors are responsible for the same wrongful act. A test to determine whether
a joint tort is involved is to ask whether the same facts would support an action by the plaintiff against
any one of the tortfeasors. Joint torts usually arise when there is an employer/employee relationship, an
agent/principal relationship, or a common course of action to a common end which links the tortfeasors.
For example, two highway workers could commit a joint tort if they both deliberately and with the same
purpose throw sand at the same time through the open window of a passing bus, thereby injuring a
passenger. “Several” tortfeasors are responsible for separate, wrongful acts which contribute to the same
loss or harm. An example involving several tortfeasors might be where the careless driving of cars A
and B results in a third vehicle being forced off the road and damaged, through no fault of that third
vehicle’s driver. The wrongful acts of drivers A and B would be different, but they would have
contributed to the same wrongful loss or harm. In relation to joint tortfeasors, the common law
developed the concept of joint and several liability. This means that joint tortfeasors can be sued
together or joined in the same action and can also be sued severally or individually for the full amount of
the plaintiff’s damages. The common law considers a joint tort to involve a single wrongful act, for
which the plaintiff has a single, indivisible cause of action. Only one judgment can be delivered, after
which the cause of action is considered no longer to exists. This can have a number of important
consequences. A court judgment against one or more joint tortfeasors can be applied or executed in full
against any one of them. If a judgment is obtained against one joint tortfeasor, then no other joint
tortfeasors can be sued with respect to the same matter (the judgment bar rule). Similarly, if the plaintiff
agrees to a settlement before trial and releases one of the potential joint tortfeasors from liability, all
other joint tortfeasors are also released (the release bar rule). By contrast, several tortfeasors are
severally or individually liable for the full amount of the damages suffered by the injured party, but are
not considered to be jointly liable for the wrongful act. Neither the judgment bar rule, nor the release bar

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rule, applies to several tortfeasors. A plaintiff who obtains a judgment or grants a release in relation to
one several tortfeasor can still make a claim against any other several tortfeasors. As a plaintiff will not
be entitled to more than full compensation for a wrong or injury, then payment, whether full or partial,
received from one several tortfeasor will discharge any other several tortfeasors to the same extent.25 A
plaintiff can release a tortfeasor from liability as a goodwill gesture. More often, though, a release is part
of a settlement with a tortfeasor by way of accord and satisfaction. This is an agreement (accord) to
accept, in discharge of a claim, something in return (satisfaction) different from or less than that to
which the person who makes the acceptance is entitled. An accord and satisfaction is considered to end
the cause of action, and therefore prevents any other legal proceedings founded on the same matter. The
release bar rule applies unless the plaintiff makes clear his or her intention to preserve a right to sue
other parties liable for the plaintiff’s injuries. The agreement whereby the plaintiff releases one joint
tortfeasor, but reserves the right to sue others, is called a covenant not to sue. If the plaintiff’s actions
can be characterized as a covenant not to sue, rather than a release or an accord and satisfaction, the
cause of action is not ended, and other joint tortfeasors can still be sued. The common law upholds the
distinction between releases or accords and covenants not to sue, even though this may lead to results
unforeseen by a plaintiff. If the plaintiff is careless in the language used in a settlement agreement with
one joint tortfeasor, then inadvertently the plaintiff could thereby allow all other joint tortfeasors to
escape responsibility for their wrong. As a result, the plaintiff might be deprived of compensation in
damages to which he or she would otherwise have been entitled. The release bar rule, which can leave a
plaintiff without legal recourse, has therefore been described as creating “a trap into which the unwary
fall but which the clever avoid.” Some jurisdictions have abolished the release bar rule by statute.30 In
Nova Scotia, the release bar rule has not been abolished, but the judgment bar rule has been eliminated,
through the Tortfeasors Act.
Historically, states have followed one of three approaches when dealing with multiple parties
responsible for causing an injury or damage:
(1) joint liability,
(2) several liability, or
(3) joint and several liability.

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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.
If two or more parties have JOINT LIABILITY, they are each liable up to the full amount of the
obligation. Only one action can be brought and if only one tortfeasor is sued, no further recovery can be
had from the other tortfeasors. If two or more parties have SEVERAL LIABILITY each tortfeasor is
liable only for their respective obligations based on their percentage of fault. If, however, two or more
parties have JOINT AND SEVERAL LIABILITY, any of the defendants can be pursued as if they
were jointly liable and it becomes the responsibility of the defendants to figure out their respective
proportions of liability and payment. The plaintiff may not recover for the same injury twice, but has the
option of proceeding against just one jointly and severally liable defendant to recover 100% of his
damages. The concept of joint and several liability was intended to ensure that the plaintiff is made
whole where one or more defendants cannot make good on the damages. States differ on which form of
liability they apply, and states are changing their approaches as tort reform legislation is enacted. Today,
joint and several liability comes in three general forms, with minor variations from state to state: (1)
Pure Joint and Several Liability: Places the risk of insolvency and the burden of identifying non-party
tortfeasors on the defendants. Each defendant is responsible for the entire amount of damages regardless
of the amount of responsibility. Eight states practice Pure Joint and Several Liability (Alabama,
Delaware, Maryland, Massachusetts, North Carolina, Pennsylvania, Rhode Island, and Virginia). (2)
Modified Joint and Several Liability: A cross between Pure Joint and Several Liability and Pure Several
Liability. Splits the risk of insolvency between the plaintiff and the solvent defendants. A defendant is
responsible for the entire verdict only if they are found to be at or above a specified percentage of fault.
Twenty-eight (28) states practice Modified Joint and Several Liability (California, Colorado, Hawaii,
Idaho, Illinois, Iowa, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada,
New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, South
Carolina, South Dakota, Texas, Washington, West Virginia, and Wisconsin). (3) Pure Several Liability:
Places the risk of insolvency and burden of identifying non-party tortfeasors on the plaintiff. Each

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Defendant is only liable for their assigned portion of damages based on their percentage of
responsibility. Fourteen (14) states practice Pure Several Liability (Alaska, Arizona, Arkansas,
Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Tennessee, Utah, Vermont, and
Wyoming).
Historically, states have followed one of three (3) approaches when dealing with multiple parties
responsible for causing an injury or damage: (1) joint liability, (2) several liability, or (3) joint and
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. If two or more parties have JOINT LIABILITY, they are each liable
up to the full amount of the obligation. Only one action can be brought and if only one tortfeasor is sued,
no further recovery can be had from the other tortfeasors. If two or more parties have SEVERAL
LIABILITY each tortfeasor is liable only for their respective obligations based on their percentage of
fault. If, however, two or more parties have JOINT AND SEVERAL LIABILITY, any of the defendants
can be pursued as if they were jointly liable and it becomes the responsibility of the defendants to figure
out their respective proportions of liability and payment. The plaintiff may not recover for the same
injury twice, but has the option of proceeding against just one jointly and severally liable defendant to
recover 100% of his damages. The concept of joint and several liability was intended to ensure that the
plaintiff is made whole where one or more defendants cannot make good on the damages. States differ
on which form of liability they apply, and states are changing their approaches as tort reform legislation
is enacted. Today, joint and several liability comes in three general forms, with minor variations from
state to state:
(1) Pure Joint and Several Liability: Places the risk of insolvency and the burden of identifying non-
party tortfeasors on the defendants. Each defendant is responsible for the entire amount of damages
regardless of the amount of responsibility. Eight (8) states practice Pure Joint and Several Liability
(Alabama, Delaware, Maryland, Massachusetts, North Carolina, Pennsylvania, Rhode Island, and
Virginia).
(2) Modified Joint and Several Liability: A cross between Pure Joint and Several Liability and Pure
Several Liability. Splits the risk of insolvency between the plaintiff and the solvent defendants. A
defendant is responsible for the entire verdict only if they are found to be at or above a specified
percentage of fault. Twenty-eight (28) states practice Modified Joint and Several Liability (California,

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Colorado, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio,
Oklahoma, Oregon, South Carolina, South Dakota, Texas, Washington, West Virginia, and Wisconsin).
(3) Pure Several Liability: Places the risk of insolvency and burden of identifying non-party tortfeasors
on the plaintiff. Each Defendant is only liable for their assigned portion of damages based on their
percentage of responsibility. Fourteen (14) states practice Pure Several Liability (Alaska, Arizona,
Arkansas, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Tennessee, Utah,
Vermont, and Wyoming).
latter’s proportionate share of responsibility, liability, or fault assigned to the subcontractor either in the
original lawsuit or in a separate lawsuit seeking the contribution. Understanding contribution law is
important for subrogation practitioners because an insurer who settles on behalf of its insured must
know whether the settlement will extinguish its subrogated right of contribution against the other
tortfeasors in order to determine what should be paid in settlement. In some cases, contribution claims
are brought within the original lawsuit itself, when one defendant files a cross-claim against a co-
defendant. In other cases, a defendant brings (impleads) a completely new party into the lawsuit
claiming that it is also responsible for causing the injury or damages. In a large number of cases –
depending on state law – a liability insurance carrier might settle with the plaintiff before or during a
pending lawsuit or as a result of a judgment, and then seek to make an independent claim for
contribution against the third-party defendant, seeking to recover some or all of the damages it paid to
the plaintiff, based on allegations that the third-party defendant bears a proportionate share of
responsibility, based on its actions. Contribution (sharing of liability) differs from indemnity in that the
latter is a complete shifting of liability based on common law or statute (e.g., a manufacturer must
indemnify an innocent retailer for sale of a defective product) or even contract, such as a construction
contract which requires a subcontractor to indemnify a general contractor for any and all damages
arising out of the subcontractor’s work, etc. Contribution is subrogation’s cousin. Insurance carriers
differ in the way they approach the right of contribution, but like subrogation, the goal of contribution is
to bring back into the insurance company’s coffers, claim dollars that have been paid out. Insurance
companies routinely miss opportunities to seek contribution recovery dollars because they don’t
recognize contribution opportunities or because they have internal procedures and protocols which allow
such contribution rights to go unrealized. In 1939, the National Conference of Commissioners on

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Uniform State Laws drafted the first Uniform Contribution Among Tortfeasors Act (“UCATA”). The
UCATA was revised in 1955, and by 1988, 17 states had adopted it. The UCATA provides for
contribution when two or more persons become jointly and severally liable in tort for the same injury to
person or property, “even though judgment has not been recovered against all or any of them.” Virtually
all tort cases involve potential contribution issues that can arise when one or more tortfeasors enter into
settlement agreements. The same is true for other tort cases in which liability may be shared by multiple
defendants or even unnamed tortfeasors. Settlements with joint tortfeasors raise two major issues. In
some jurisdictions, when a joint tortfeasor enters into a settlement, the settling tortfeasor may be entitled
to contribution provided that certain conditions are met. Conversely, a settling tortfeasor may or may not
be protected from contribution liability according to whether other conditions have been satisfied. It is
the former scenario that this chart primarily addresses.
STATUTE OF LIMITATIONS
Although a state may have a special statute of limitations providing that actions for contribution must be
commenced within a specified time after the cause of action accrues to the injured person (usually the
date of the accident or injury) so that the time to file a third-party complaint is governed by the time the
original cause of action accrues and not from the time the right to contribution accrues, the general rule
is that the statute of limitations governing claims for contribution runs from the discharge of the
obligation (liability claim payment to the plaintiff by defendant seeking contribution) and not from the
time when the original tort occurred. This means that in many situations, the right of contribution is still
viable even though the plaintiff’s time in which to pursue a defendant has lapsed. For example,
Wisconsin’s Wis. Stat. § 893.92 provides: Wis. Stat. § 893.92. Action for contribution. An action for
contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating
the comparative negligence between the parties, shall be commenced within one year after the cause of
action accrues or be barred. In jurisdictions where the practice permits a party seeking contribution to
found its contribution action upon the principal obligation or a judgment as assignee or subrogee of the
creditor, the ordinary rule in simple actions for contribution that the statute of limitations begins to run
on payment may not apply to an action brought on this theory, and the statute of limitations may begin
to run from the date the principal obligation becomes due or from the date of the judgment. While the
statute of limitations differs from state to state, the majority rule is that in states which allow such

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contribution actions, the statute of limitations for the party seeking contribution runs from the date of its
original liability claim payment to the plaintiff.
CONCLUSION
The application of pure joint and several liability is on the decline between the various jurisdictions. In
most jurisdictions, the pure form of the doctrine has given way to modified versions, including those that
take into account the plaintiff’s comparative fault. Some states have adopted approaches that protect, at
least to some degree, the unfairness that might otherwise befall “deep pocket” defendants who become
targets simply because they have the means to satisfy a judgment. Regardless of these shifts, however,
states remain mindful of the need to continue to ensure the ultimate goal of the joint and several liability
doctrine: an innocent plaintiff’s recovery.
Tortfeasors have a right to contribution only where joint and several liability applies. Ariz. Stat. § 12-
2501 (1993); Dietz v. General Electric Co., 821 P.2d 166 (Ariz. 1991). When partial settlements are had,
unless the case is one of joint and several liability, the non-settling tortfeasor is not entitled to a setoff.
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 (Ariz. 1996).
In sum, from the perspectives of inducing deterrence and inducing settlements, and promoting fairness,
there is no dominant relationship between joint and several liability and non-joint liability. From a
deterrence perspective, the comparison between the two rules turns on the levels of solvency of the
defendants. In contrast, from settlement and fairness perspectives, the comparison turns on the
correlation of the plaintiff’s probabilities of success against the defendants.

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BIBLIOGRAPHY
ARTICLES
 http://www.wilsonelser.com/writable/files/Legal_Analysis/50_state-survey-joint-and-several-
liability_mm4.pdf
 http://encyclo.findlaw.com/3200book.pdf
 http://www.lawreform.ns.ca/Downloads/Tortfeasors_FIN.pdf
BOOKS
 R. K. BANGIA, LAW OF TORTS & CONSUMER PROTECTION ACT
 RATANLAL & DHEERAJLAL, LAW OF TORTS & CONSUMER PROTECTION ACT