Gremlins in the Joint
This blog examines practice Multi-State Bar
Exam questions and hopefully helps prospective takers learn to spot various devices
used that can so easily throw anyone off balance in their 1.8 minute race to the
next question.
In the language of law, the term “joint" can play gremlin to the unwary.
Another driver and the defendant
were racing along a two-lane road. While the other driver tried to pass in the
lane to the left of the center line, the plaintiff’s car came into view,
heading directly at the driver’s vehicle. The driver lost control of his
vehicle and collided with the plaintiff’s car. The defendant’s car, was not
involved in the collision. The plaintiff brings suit against the defendant for
damages suffered in the collision.
Which of the following would be
the defendant’s best course of action?
A. Seek
dismissal of the claim, because the defendant did not cause the plaintiff’s
damage.
B. Seek
indemnification from the other
driver, if the plaintiff recovers a judgment against the defendant.
C. Ask
the court to limit his liability to one-half of the plaintiff’s damages.
D. Seek
contribution from the other driver,
if the plaintiff recovers a judgment against the defendant.
Contribution or indemnification?
Two terms themselves that can play
gremlin with tricky concepts each involving two or more tortfeasors — the
notorious “joint tortfeasors” — and the apportionment of liability. The
concepts of contribution and indemnification are easily confused and often
mistakenly interchanged by the unwary, which is why they’re brought into play
in this type of question.
Indemnity
totally shifts liability in the interests of justice: where there’s a secondary
tortfeasor perceived to be responsible as a matter of law rather being than the
primary tortfeasor, who is responsible in fact. The classic illustration is
vicarious liability, when an employer is sued for the torts committed by an
employee during the course of employment. Though as a matter of law the
employer is vicariously liable to the plaintiff for the damages to plaintiff,
the employer is entitled to seek indemnification
from the employee. The law prefers to ultimately sanction the party who was in
fact at fault — the employee — by reimbursing the party that was not at actually
fault, the employer.
Contribution,
meanwhile, is the applicable concept for this question: two tortfeasors are each
causes in fact and justice sees
damages as apportionable in equal share, even where one tortfeasor may be more
at fault than the other. The one who pays can seek contribution from the other.
Here the plaintiff brings suit
against defendant even though it was the other driver’s car that in fact
collided with plaintiff, and defendant’s own vehicle wasn’t involved in the
collision. Both drivers were negligent by racing, jointly creating the
unreasonable risk of harm to a foreseeable plaintiff that no ordinarily prudent
person would create. The defendant is wholly liable under the concept of joint
and several liability for the plaintiff’s indivisible injury. However, both
tortfeasors were at fault. Indeed, it could be argued — not unreasonably — that
driver was more at fault than defendant. But under joint and several liability
either is liable to plaintiff for the entire injury, and in this case it was
defendant who faced the music in court. But defendant, who has been made to compensate defendant for defendant's entire injury, is entitled to make driver
face the music as well, by suing driver for contribution: driver, the joint
tortfeasor, perceived by law as being liable for an equal share of damages
recoverable by plaintiff. If three cars were racing, defendant could seek
contribution from the other two racing drivers as joint tortfeasors.
The joints can be like gremlins
assailing the unwary.
Meanwhile, on the property side of
law, the term “joint” may also play gremlin.
The fact pattern begins: “A mother’s
will left her farm to her son and daughter ‘jointly, as tenants in common.’”
You guessed it: The classic
distractor — and incorrect — answer choice included reference to “the other
joint tenant” and the consequent right of survivorship.
When two or more people receive a
devise or conveyance of property together, the presumption is they take as tenants in common, and not as joint tenants. Tenants in common each have
a share of ownership coupled with an undivided interest to the right of
enjoyment in the whole. That share of each tenant in common is freely alienable
— available to be sold or given away, or devised by will.
In order to create that near-magical
status of “joint tenant” so that the property
interest passes on death of one concurrent owner to another by operation of
law, the devise, deed or gift must be explicit by using unequivocal terms on
linguistic par with “joint tenants with right of survivorship.”
The language of law is full of terms
that can play gremlin and muddle the unwary: they're everywhere, so watch out!
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Disclaimer: The examples cited here are either from the National
Conference of Bar Examiners or one of the private bar preparation providers,
and are used here under the fair use safe harbor for nonprofit educational
purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce,
outdated and are used only as illustrations of methodology in form and language
that may be encountered on the MBE, and further be advised that the state of
current law may not be accurately reflected.
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