Apportionment of responsibility among multiple tortfeasors - Next Generation Bar Exam

1. Under the prevailing modern approach, what is the effect of one tortfeasor's settlement on the liability of the others?

   The nonsettling defendants' liability is reduced, by the settlement amount or the settling party's share of fault. Jurisdictions differ on whether reduction is pro tanto or by comparative share.

2. What is the general rule on apportionment when tortfeasors cause a divisible injury?

   Each tortfeasor is liable only for the portion of the harm it caused. Joint and several liability applies only to indivisible injuries.

3. What is the effect of a release of one joint tortfeasor on the others under the modern rule?

   It does not release the others unless the release so provides. At common law, release of one released all.

4. What is indemnification?

   Shifting the entire loss from one tortfeasor to another. It is available when one party is only vicariously liable or a contract provides for it.

5. What is joint and several liability?

   Each tortfeasor whose conduct caused an indivisible injury is liable for the entire judgment. The plaintiff may recover the full amount from any one of them.

6. What is contribution?

   A tortfeasor who paid more than its share may recover the excess from other jointly liable tortfeasors. Modern jurisdictions allocate contribution by comparative fault.

7. In a pure several liability jurisdiction, A is 60 percent at fault and B is 40 percent at fault for P's $100,000 injury. B is insolvent. How much can P recover from A?

   $60,000. Under several liability, each defendant pays only its share.

8. What is several liability?

   Each tortfeasor is liable only for its share of fault. The plaintiff bears the risk that a defendant cannot pay.

9. Who may obtain indemnification from a negligent employee?

   An employer held vicariously liable for the employee's tort. The employer's liability is derivative, so the loss shifts to the employee.

10. A retailer is held strictly liable for a defective product made by a manufacturer. What may the retailer seek from the manufacturer?

    Indemnification for the full amount. A downstream seller without fault may shift the entire loss to the manufacturer.

11. A (70 percent at fault) and B (30 percent) cause P an indivisible injury. Under joint and several liability, P collects all $100,000 from B. What may B recover from A?

    $70,000 in contribution. B paid more than its 30 percent share and may recover the excess.

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