Individual and shared fault and liability

For many years California has recognized and encouraged the doctrine of joint and several liability. American Motorcycle Assoc. v. Superior Court, 20 Cal. 3d 578 (1978) reaffirmed the commitment to this basic principle:

“First, we conclude that our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory negligence rule does not warrant the abolition or contraction of the established ‘joint and several liability’ doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury.”  20 Cal. 3d at 582, emphasis added.

Individual liability flows inevitably from Civil Code Section 1714, 20 Cal. 3d at 586. A tortfeasor may not escape his responsibility simply because another act or another person might also have been a cause of the injury.

The principle that each tortfeasor is responsible individually for his or her own conduct (whether or not a corporate defendant is also responsible through the imposition of vicarious or other liability) was reiterated by Mesler v. Bragg Management Co., 39 Cal. 3d 290 (1985), emphasizing that both an agent and a principal were jointly and severally liable for any torts committed by the agent, 39 Cal. 3d at 303-305.

Many cases have held an individual agent liable for tortious conduct regardless of whether the principal is held liable as well. See Ach v. Finkelstein, 264 Cal. App. 3d 667, 677 (1968), holding an agent co-liable with the principal; Hobbs v. Bateman Eichler, 164 Cal. App. 3d 174 (1985), holding an individual stockbroker liable for fraud along with the stock brokerage which employed him; Jahn v. Brickey, 168 Cal. App. 3d 399 (1985), in which the liability both of a principal and an agent for fraud was upheld; Agarwal v. Johnson, 25 Cal. 3d 932 (1979), company and individuals liable for defamation; and Civil Code Section 2343(3), which states in pertinent part that when one acts as an agent, he is responsible to third persons for any acts committed in the course of his agency when his acts are wrongful in their nature.

 

Witkin, Summary of California Law, 9th Ed., Agency and Employment, Section 149 agrees: “An agent or employee is always liable for his own torts, whether the principal is liable or not, and in spite of the fact that the agent acts in accordance with the principal’s directions. (C.C. 2343(3); Perkins v. Blauth (1912) 163 C.782, 787, 127 P. 50; Bayuk v. Edson (1965) 236 C.A.2d 309, 320, 46 C.R. 49, supra, §141; see Seavey §129 et seq.; Rest.2d, Agency §§343, 344 et seq., and Appendix, Rep. Notes, pp. 561, 562.) (On liability and privilege of public employee, see Torts; on liability for misrepresentation of authority, see Rest.2d Agency §330.)

“Similarly, an agent who commits an independent tort, such as fraud, remains liable despite the fact that the principal, by ratification, also becomes liable. (Hanson v. California Bank (1936) 17 C.A.2d 80, 102, 61 P.2d 794; Rest.2d, Agency §360; see Crawford v. Nastos (1960) 182 C.A.2d 659, 665, 6 C.R. 425 [defendant real estate broker negotiated sale of ranch, fraudulently representing water supply]; Lingsch v. Savage (1963) 213 C.A.2d 729, 736, 29 C.R. 201 [real estate broker’s liability to purchaser for fraudulent concealment of defects in property]; 8 A.L.R.3d 550 [same].)” Ibid., pp. 144-145.

This Post Has 2 Comments

  1. Tayyab says:

    I can’t state the insurance laws of Georgia but pettry much the rules and regulations with most of the major insurance companies are alike. First of all your a fool for not getting a lawyer if you were involved in a auto accident. The lawyer works for you in getting top notch dollar in sueing the insurance company on your behalf. True you probably could settle without an attorney but the insurance can take advantages of you of all kinds and not even tell you about it. They may make you an offer where as if your greedy, you will sign an affadavit of not taking them to court. Someone who acts as their own lawyer is a fool. They can even sue the opposing party to which you had an accident with. They can get you lost wages as well if your out of work for any length of time. Do not make demands upon any major insurance company as for it wouild be like sticking a knife in your own heart. As far as paying for your medical bills, yes under the no fault act which all drivers must carry, they are responsible to pay the hospital and the doctor directly for your medical bills. Don’t be greedy and stay cool and get an attorney as for he is there looking out for your well being and your best interests.References : My son was in an auto accident and I know what he had to go through 5 years ago.

  2. Lizbeth says:

    I had a 4BR house with a pool in So Cal. It was some years ago and I simply do not rmeeebmr how much the insurance was, but it was not very expensive.The cost of your insurance will depend on the limit of liability. With a pool, I’d spend more on insurance and get at LEAST a million dollar liability (God forbid, a neighbor’s kid falls into your pool )I hate to recommend a particular insurance company, but from personal experience, Mercury Ins. has the best rates and they are OK with service (I presently have Mercury Insurance on three properties and two cars.)Oh-oh, you made mdk angry (see his answer below.) Now you might need an Umbrella Insurance, in case he’ll take you to court for not giving him all the info.

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