Torts Bar Review

Multiple D Issues-

• Releases: A release dn release other tortfeasors unless it
• expressly does so.

• 1. Joint and Several Liability –Rule: Where multiple acts cause indivisible
• injury, each D will be potentially liable for the entire judgment amt.
• (on exam assume that Joint tortfeasors are J&S liable)

• Contribution and Indemnification – When is this used?: It is used where a D because of
• joint and several liability, has paid more than his fair share of
• the judgment and wants the other Ds to contribute or indemnify.

• ·
• a. Contribution: Rule: where Ds are more or less equally
• responsible, they will share the judgment amt equally.

• Note: 1. D from whom contribution is sought must also be liable (for example, not have independent defense such as intra-family tort immunity)
• 2. Not applicable to intentional torts.

Indemnification: Can get EVERYTHING back from the other Ds.

· Indemnification grounds:

• 1. The other D is a lot more
• responsible (Retailer getting it back from manufacturer)

• 2. Vicarious L- you can get it
• back from the actual tortfeasor

3. SL in product cases. All the way up to manufacturer.

Comparative contribution

Rule: Ds will split up judgment according to relative fault (IL Rule) Hypo:

• Adam is 24% responsible for injury. Buster 75%
• responsible. P received $10,000
• judgment. How do we split this up
• bw them? ___________________________. They both owe P $100,000.
• They can go back and get money from each other after P is paid. Tip: Comparative contribution effectively eliminates contribution
• and the first ground for indemnification.

• Survival and wrongful Death: These are derivate
• recoveries. This means you will stand in no better position than decedent would have stood in had he lived.

Tort Immunities

Intra-family- out

Charitable- out

• Governmental- statutory- can’t test this except: Governmental vs. Proprietary function – Rule: Immunity is available
• for governmental functions; it’s
• not available for proprietary functions.

• To determine if function is proprietary, ask: Would a private business
• normally perform this function? If yes, it is a proprietary function.
• Hypo: City parking lot. Governmental or proprietary
• function? It is a Proprietary function.

• There is duty 1. to mitigate 2. Collateral source Rule: Damages not reduced because of payments
• from other sources, e.g., health insurance.

• 1. Two types contrib. Neg fact patterns: knowing C/N/implied A/R and
• Unknowing Contrib/Neg

• · Knowing Contrib negl/implied assumption of the risk – hypo: Doofus runs across
• street trying to beat negligently driven speeding car. He is struck and
• injured. Will Doofus recover? No.
• Contrib Neg. Was it reasonable care as he crossed the street? No. Tried to beat
• a speeding car. Will Doofus recover? No.
• Implied assumption of risk.

· Two part test for implied Assumption of the risk:

One knew of the risk.

One voluntarily proceeded in the face of it.

• To recognize the fact pattern where both contributory neg and implied
• a/r are available. It is where the plaintiff 1. Unreasonable ; 2. Voluntarily;
• 3. Takes on a known risk.

• · Unknowing Contrib Neg:
• Hypo: Doofus, while
• daydreaming, steps off curb into street and is blindsided by negligently driven
• car. Will Doofus recover? No. Contrib Neg- walking around crossing
• streets daydreaming is not reasonable .
• Watch where you are going. Do not write abour A/R- dn know of the risk
• and dn voluntary take it on.

• street trying to beat negligently driven speeding car. He is struck and
• injured. Will Doofus recover? No.
• Contrib Neg. Was it reasonable care as he crossed the street? No. Tried to beat
• a speeding car. Will Doofus recover? No.
• Implied assumption of risk.

• Hypo: Doofus, while daydreaming, steps off curb into street and is blindsided by negligently driven
• car. Will Doofus recover? No. Contrib Neg- walking around crossing
• streets daydreaming is not reasonable .
• Watch where you are going. Do not write abour A/R- dn know of the risk
• and dn voluntary take it on.