The Tort Triangle: Contribution from Defendants Whom Plaintiffs Cannot Sue

The rights of contribution and indemnity between tortfeasors often conflict with other rules foreclosing or limiting one tortfeasor's liability to the plaintiff. Take a simple case involving interspousal immunity. The plaintiff, spouse of one tortfeasor (the "protected tortfeasor"), is injured in a collision between an automobile driven by the spouse and another driven by the second tortfeasor (the "claiming tortfeasor"). The plaintiff brings an action against the claiming tortfeasor, who then claims over against the protected spouse. Many courts hold that because the claiming and protected tortfeasors owe no "common liability" to the plaintiff, contribution will not lie. In some situations, however, even courts adhering generally to the "common liability" formula will allow contribution despite the plaintiff's inability to enforce recovery against the protected tortfeasor. The thesis advanced here is that while contribution is based on the claiming tortfeasor's discharge of a common obligation to the plaintiff, the definition of this obligation should not depend on the plaintiff’s ability to enforce legal liability against both tortfeasors. Rather, contribution rests on broader notions of fairness in the division of the burden of damages between persons participating in tortious acts or omissions which result in injury to the plaintiff. Where the protected tortfeasor enjoys a defense against the plaintiff, the court should resolve the conflict between the equitable basis of contribution and the purposes underlying the protected tortfeasor's defense against the plaintiff. This article attempts to illustrate how courts have resolved and should resolve such conflicts through a policy analysis.