There was a three-way accident where P's car was hit by D's truck. P was not at fault. The accident was set off by the actions of another car, but the identity of the driver was never ascertained.
Jury found unknown driver and D were both negligent and liable in the percentages of 70% and 30% respectively.
P moved to be granted the entire amount from D.
Trial court found for P for 30%, denied P's motion for 100%, granted new trial.
NM COA reversed new trial, reinstated 30% for P from D.
In a comparative negligence case, is a concurrent tortfeasor liable for the entire damage caused by concurrent tortfeasors? (Does J&S liability operate in a comparative negligence case?)
In a comparative negligence case, a concurrent tortfeasor is not liable for the entire damage caused by concurrent tortfeasors. J&S liability does not operate in a comparative negligence case.
Most jurisdictions retain J&S liability in comparative negligence cases. J&S has been retained on two grounds, neither of which are defensible…
The concept that a P's injury is indivisible.
This concept is obsolete and based upon the old system of contributory negligence.
In order to favor Ps; a P should not bear the risk of being unable to collect his judgment.
The P should have to bear the risk of a D being financially insolvent.
J&S is based upon two principles, both of which have been changing…
Contribution among joint tortfeasors
It is being urged now by courts that comparative negligence should be applied to compare the negligence of the Ds to each other as well as to compare the negligence of the Ds to the P and that each D be responsible for only that part of the injury that the percentage of fault apportioned to him bears to the total negligence of all tortfeasors.
Is it appropriate to determine the percentage attributable to a nonparty or just to the parties to the matter? What about immune Ds?
Some jurisdictions have abolished J&S liability.
Others have modified it through tort reform so that it does not apply…
To noneconomic damages like pain and suffering or emotional distress (CA)
To Ds whose percentage of fault is below a certain threshold (IA, TX)
To certain types of Ds (HI - gov't entities)
To certain types of actions (ID - only to intentional torts, medical products)