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.