In Campbell v. Robinson, (Del Super., June 19, 2007), read opinion here, the Delaware Superior Court provides a helpful overview of the law of "joint and several liability" in Delaware. Although the facts of this case stray beyond the scope of this blog (a default judgment entered against 2 defendants in a dog bite case), the analysis in this case of the law of joint and several liability is of great importance to business litigators in cases involving multiple defendants. Here are the money quotes, without the ample footnotes provided in the opinion by Judge Peggy Ableman:
"Delaware has long recognized that ‘when the acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there is no common duty, common design, or concerted action. The joint and several liability of two codefendants entitles the plaintiff to seek recovery from either or both of the defendants….’" (citations omitted).
The court also noted that when granting a judgment for plaintiff against two defendants, the court does not apportion damages. Rather,
"[i]n an action for contribution, joint tortfeasors may seek an apportionment of fault in order to determine their pro rata share of a judgment, but contribution actions arise after the plaintiff has sought damages from whichever defendant or defendants she chooses and a joint tortfeaser has paid the common liability or more than his or her pro rata share of the common liability." (emphasis in original)(citing 10 Del C. Section 6302).