Cars driven by Bier and Race were racing on a public road. The cars were side by side on a 2 lane road going twice the speed limit.
P was driving towards them. Race was in P's lane and tried to swerve to get out of the way. Race hit P's car, injuring P.
Bier's car never hit P's car.
Verdicts were entered in favor of Ps against both Ds jointly.
Trial court found for P (both Ds jointly liable).
DE Supreme Court affirmed.
Is joint and several liability appropriate when one D merely acts in concert with another D but does not directly cause the injury?
Joint and several liability is appropriate even when one D merely acts in concert with another D and does not directly cause the injury because he has induced and encouraged the tort.
Most states would hold both Ds liable under a negligence per se theory since racing on the highway is illegal in most states.
Nevertheless, racing on a public street is still negligence since a reasonably prudent person would not engaged in such conduct.
The rules of causation suggest that parties engaged in a race on the highway are wrongdoers acting in concert and that each participant is liable for harm to a third person arising from the tortious conduct of the other because he has induced and encouraged the tort.
Participation in a race on a public highway is an act of concurrent negligence imposing liability on each participant for any injury to a non-participant resulting from the race.
Joint and several liability means that each of the several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount.
Three situations where J&S is used…
Tortfeasors acted in concert.
Ds fail to perform a common duty to the P.
Ds acted independently to cause an indivisible harm.