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Leaf2001br

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Common law torts questions
« on: December 04, 2005, 10:08:18 PM »
I'm in Louisiana, where our tort law is largely governed by civil code, and we will be giving only secondary consideration to common law on the exam.  I have just a couple of hazy areas from common law if anyone wants to help me piece it together. (I know it may vary by jurisdiction):

1.  If there is shared causation between multiple negligent tortfeasors that is indivisible, do most common law jurisdictions enforce joint and several (what we call solidary)liability?

Example: Simultaneous gunfire from three hunters causes damage. (In Louisiana, their damage liability would be 1/3 each)


2.  Does the plaintiff's contributory negligence bar recovery if it is over 50%?  (I know some use the "last clear chance rule".  In Louisiana, plaintiff's recovery is only mitigated by his contribution as a percentage, even if it is over 50%)
"What is Legal?  What is Illegal?  What is 'Barely Legal'?"  - Ali G

jacy85

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Re: Common law torts questions
« Reply #1 on: December 04, 2005, 11:42:10 PM »
1.  Typically, the common law for indivisible harms holds multiple necessary tortfeasors jointly and severally liable, so you're right on that one.  This differs from the LA example, obviously, in that the ptf could try to recover 100% from one of however many joint and several def's there are.  The def. that pays will seek contribution from the other defendant's for their share.

2.  Careful with your terms for contributory vs. comparative negligence.  If a ptf is found to have played a part in her injury in a *contributory* negligence jusisdiction, the ptf is completely barred from any recovery, even if they played a relatively small role in their injury.

If a ptf is found compartively negligent, then there's a couple of different options, depending on what sort of jurisdiction you're in.  Some jurisdictions hold that a ptf can recover as long as they were less negligent than the defendant (LESS than 50% responsible).  Others hold that the ptf can recover as long as they weren't MORE negligent than the defendant (LESS THAN OR EQUAL TO 50% responsible).  The recovery will obviously be reduced by the percent the ptf was responsible.  Pure comparative negligence jurisdictions don't care if the ptf was more negligent than the defendant, which is what you have in LA.  Pure comparative negligence systems seem to be somewhat rare.

Jumboshrimps

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Re: Common law torts questions
« Reply #2 on: December 05, 2005, 10:13:45 AM »

1.  If there is shared causation between multiple negligent tortfeasors that is indivisible, do most common law jurisdictions enforce joint and several (what we call solidary)liability?

Example: Simultaneous gunfire from three hunters causes damage. (In Louisiana, their damage liability would be 1/3 each)


A distinction must be made between indivisible harm and indivisibe fault. If the harm is indivisible, then the defendants are indeed held joinly and severally liable. However, if the fault is indivisible, then the burden is shifted to the defendants to disprove causation. This can only be done if all the Ds are shown to be negligent anf P has sued every possible tortfeasor.

In your hunter example, it's unclear whether one hunter caused the damage while all three shot at the target, or all three caused the damage and we can't tell which damage was caused by which bullet. The former is indivisible fault. The latter is indivisible harm.

Leaf2001br

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Re: Common law torts questions
« Reply #3 on: December 05, 2005, 12:00:14 PM »
Hmm... I wasn't exactly asking for a primer on comparitive fault, etc.   I guess I should have been more clear.  My real question is this:

Would the hunters be held joint and severally liable in a common jurisdiction for their negligence?

In Louisiana, they would absolutely not be.  Not for negligence.  Is this different from the common law norm?  I have seen vague references that it is, but just wanted some confirmation before I claimed it to be true on an exam!
"What is Legal?  What is Illegal?  What is 'Barely Legal'?"  - Ali G

Jumboshrimps

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Re: Common law torts questions
« Reply #4 on: December 05, 2005, 12:21:50 PM »
... and the answer is they would be held jointly and severally liable only if all three bullets caused harm. If we're talkin about one bullet killing someone but we're not sure which gun it came from, then the Ds get a chance to disprove causation.

Highway

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Re: Common law torts questions
« Reply #5 on: December 05, 2005, 03:09:54 PM »
But isn't that what joint and several liability really is? Each would be held 100% liable for the damage, and the burden would be placed on them to disprove their liability. The purpose is to shift the burden from the plaintiff from having to show which one was liable. Each defendant is in the best position here to disprove their own negligence, so each is held completely liable in order to, essentially, rat out the others. If the plaintiff could only recover by proving who was the negligent party, the defendant's each have incentive to keep their mouth's shut.

Jumboshrimps

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Re: Common law torts questions
« Reply #6 on: December 06, 2005, 11:49:28 AM »
That makes sense, but there may be a procedural difference. Joint and several liability seems to be applicable only when all is said and done but the apportionment of damages. Whereas, after merely shifting the burden to the Ds, the issue of causation remains.

I hereby retire from talking about torts. My final was yesterday. On to property... 

Leaf2001br

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Re: Common law torts questions
« Reply #7 on: December 06, 2005, 02:45:44 PM »
So the answer is yes.  The dicta about proving fault is a given.

What about where causation is divisible?  (A is running down the stairs and bumps into B who falls after grabbbing the broken handrail)

Still joint and severally liable in common law?

"What is Legal?  What is Illegal?  What is 'Barely Legal'?"  - Ali G