Joint & Several Liability

The front cover of the MBE will state a few aspects of the law that are to be assumed. One of those is that joint and several liability applies.

If two defendants (x and y) act in concert and cause injury to the plaintiff (z), joint and several liability prevents the plaintiff from having to determine the degree of harm caused by either x or y. Rather, z can sue either x or y for the entire amount, or, if he chooses to do so, can sue them separately. So, if x and y injure plaintiff (and it's essential that both played a role in the injury), z can, if he chooses to do so, sue x for the entire injury, or so y for the entire injury.

The next step in the analysis is to determine the rights of x if he is required to pay the entire amount to z, even though y contributed to z's injury. In such a case, x has a right of contribution against y. Because x has paid more than his equitable share of the common liability among x and y, x can recover from y the amount he has paid in excess of his share.

Be sure not to confuse contribution with indemnity. Indemnity is implicated in narrow circumstances. One such situation is when one person is vicariously liable for the acts of another. A second situation is when a supplier supplies a defective product, and the only fault on the part of the supplier was a failure to discover the defect that was present when the product left the manufacturer's control. Under such circumstances, the person who was deemed vicariously liable, or the supplier of the defective goods, may be able to seek indemnity to prevent unjust enrichment to those who actually caused the harm. Unlike with contribution which involves equitable apportionment, indemnification shifts the entire loss from the party who was found liable (e.g., the supplier) to the actual wrongdoer who was primarily responsible for the harm (e.g., the manufacturer).