NYP 7

Procedural device used by ∆ to join another party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π.

• 1) File: Summons & TP complaint with the county clerk (and pay fee for index number)
• 2) Serve: Summons & TP complaint and all prior pleadings on the TP∆ within 120 days of the Filing.

TP∆'s time limit for ANSWERING is the same that would apply to an ordinary. Thus—

• 20 Days: If TP∆ was served personally, he would have 20 days to serve his answer.
• 30 Days: If TP∆ was served with any other means, he would have 30 days to serve his answer.

TP∆ must serve his Answer on ∆, π, and all other parties who have appeared in the action (e.g., other TP∆s, if any)

• YES: Once the TP∆ is joined, π may amend her complaint to assert a claim directly against the TP∆
• As of right: π may amend as of right if she does so within 20 days after π was served with the TP Answer.
• Court's discretion: After 20 days, π may amend her complaint to assert a claim directly against the TP∆, but to do so she must make a motion with the court, which motion must be granted.
• Statute of Limitations: For S/L purposes, π's added claim against the TP∆ is treated as interposed on the date the TP∆ was impleaded (i.e., when ∆ Filed the impleader papers with the county clerk) provided that π's claim against TP∆ is based on the same transaction or occurrence as ∆'s impleader claim.

• Indemnity Defined: Indemnity allows one party to shift 100% of its liability to another party. It is available in the following situations—
• By contract: Such as were a subcontractor agrees to indemnify its general contractor against any losses
• Products liability: Such as when a retailer held liable for sale of defective product can seek indemnity from manufacturer
• Vicarious liability: E.g., owner of a car against the negligently driving owner

• 1) Sharing of loss among multiple tortfeasors who were all actual participants to a tort
• 2) Whenever a TP∆ breached a duty in tort which contributed to or aggravated the damages for which ∆ may be held liable to π

• MS RULE: Contribution is not available where nature of conduct is intentional wrongdoing
• NY RULE: Contribution allowed in all tort cases—including intentional torts

• CROSS-CLAIMS, if π joined all tortfeasors
• IMPLEAD TP∆s if π omitted a tortfeasor
• SEPARATELY sue***

***Separate suit is the LEAST DESIRABLE, because findings of fact and apportionment of fault are NOT BINDING in separate suit

• 1) NO: the party from whom contribution is sought can't be required BY THE ∆ to pay more than his/her share of fault
• 2) YES: under joint and several liability, the π can make ANY liable ∆ pay the full amount of the judgment

• NY: ONLY IF π sustained a GRAVE INJURY
• MS: TP NEVER has a right to contribution or indemnity against π's employer

• Death
• Total loss of an arm, leg, hand, foot, nose, ear or index finger (but NOT a thumb)
• Total loss of multiple fingers or toes
• Total deafness or blindness
• Paraplegia or quadriplegia
• Severe facial disfigurement
• Brain damage causing total disability

1 REDUCTION FORMULA—any judgment for π against a non-settling tortfeasor must be reduced by the LARGER of

• a) amount of the settlement, OR
• b) the SETTLING tortfeasor's share of fault

2 CONTRIBUTION claims cannot asserted by or against a settling tortfeasor

3 INDEMNITY claims MAY be asserted by or against a settling tortfeasor

1 THE RULE In a personal injury case is that a joint tortfeasor can be required to pay only his share of NON-ECONOMIC damages if his percentage of fault is ≤ 50 %

2 EXCEPTIONS tortfeasors will be jointly and severally responsible for ALL damages (including non-economic) EVEN IF their share of fault is ≤ 50% if they

• a) acted with intent or reckless disregard OR
• b) released a hazardous substance into the environment OR
• c) were the driver or owner of a motor vehicle (other than police and fire-fighter vehicles)