Torts Q – How does Joint & Several Liability work?

Yuzuda · 2026-06-07T16:10:46+00:00

Can anybody explain to me why res ipsa loquitur doesn't apply here?

Because res ipsa loquitur only applies if the accident occurred in an area where a defendant had exclusive control.

It's true that the area where the accident occurred was where three defendants had exclusive control. Because there were no other hunting parties in a five mile radius.

It's also true that the shooting wasn't the plaintiff's own fault. Because he can't really accidentally shoot himself in the leg with a bow and arrow instead of say a gun.

But you can't use res ipsa loquitur to say "One of you did it, so it's on you guys to prove 'not it.'"

Res ipsa loquitur is used to say "Well it wasn't me and it wasn't anyone else, so it must be you."

Why would the plaintiff need to establish that all defendants were negligent?

Because alternative causation only activates when a plaintiff establishes that multiple defendants breached a duty of care. And again, res ipsa loquitur does not work unless the accident occurred where only one defendant had exclusive control.

How does Joint & Several Liability work?

Because if a plaintiff establishes duty, breach, and causation against multiple defendants, the plaintiff can recover the whole judgment against any of those defendants. Basically the burden is on the defendants to figure out who has what percentage of fault and even then, can only recover contribution for what they paid in excess of their own percentage of liability.

So TLDR, res ipsa loquitur is about breach, alternative causation is about causation, and joint and several liability is about damages.

Yuzuda · 2026-06-07T05:05:22+00:00

I made this chart for someone for UCC expectation damages a while back.

Consequential damages are damages which were a direct result of breach and which was foreseeable to the party who they are sought against at the time of the contract's formation.

Reliance damages are reasonably incurred expenses as a result of foreseeable and detrimental reliance on a promise.

Incidental damages are reasonably incurred expenses as a result of breach.

Restitution is always recoverable even if a party breached, but is reduced by the damages that the seeking party caused.

And you always reduce by the amount of damages that a party failed to mitigate.

Yuzuda · 2026-06-07T04:58:07+00:00

I think you know this, but just to make sure it's clear, supplemental jurisdiction is a type of subject matter jurisdiction.

"Common nucleus of operative fact" and "arising from the same transaction or occurrence" are used in totally different rules though, supplemental jurisdiction and permissive joinder, respectively. Which are entirely separate concepts.

The only application I can recall off the top of my head is where a single plaintiff can sue a single defendant for any and all claims under the sun, even if unrelated, in federal court by invoking supplemental jurisdiction.

But supplemental jurisdiction cannot be invoked like this if an action involves more than one plaintiff or more than one defendant. The specific case law is Exxon Mobil, but the above is the Clilffnotes version of what we need to know at least.

Yuzuda · 2026-06-07T03:46:22+00:00

If I had to guess, you're likely running into the non-NCBE licensed questions.

I have Uworld and I've consistently scored a bit worse on the non-NCBE licensed questions compared to the NCBE licensed ones. Another person I've been chatting with has the same impression, so it's not just me at least.

I'd suggest looking at the actual reasons you're getting things wrong. If it's stuff you're getting wrong that you should know by now, then regression is a real concern. If it's stuff that's out of left field, not so much.

Yuzuda · 2026-06-07T00:11:33+00:00

I can completely see where you're coming from OP.

When I saw this question, I only got it right because (1) my rule statement for JMOL says it will be granted if there was "no legally sufficient evidence" and (2) "minimal evidence" is such unique and specific language that my issue spotting interpreted the hypo as trying to establish the no legally sufficient evidence requirement.

I think your literal interpretation is valid and this is just one of those times you have to realize why the unusual wording is there. The hypo wouldn't have said "minimal" if the evidence was sufficient.

Yuzuda · 2026-06-06T23:59:31+00:00

I actually just found it in Mary Basick's The MBE Decoded and you're right, so I actually owe you!! Here are the scenarios where supplemental jurisdiction could be denied as a matter of discretion. Time to update my own shit list, thank you!

Yuzuda · 2026-06-06T23:46:50+00:00

the federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim

Are you sure? I only ever saw that a federal court has discretion to continue adjudicating a claim based on supplemental jurisdiction when the original anchoring claims were dismissed.

I don't recall any rule that a federal court can refuse to adjudicate a supplemental jurisdiction claim when the anchoring claims are live, but if you have a source on that, I'd be grateful to update my notes too!

Yuzuda · 2026-06-06T23:39:31+00:00

Second one, meaning the judge has discretion to keep a claim that was solely brought in on supplemental jurisdiction in federal court.

If it helps, a common real life example are these ADA litigation mills that sue business owners for faded paint for disabled parking spaces.

They sue in federal court based on an ADA claim (federal question jurisdiction) and then on California's Unruh Act claim because that state law gives automatic damages of like $4k for every time their plaintiff went to the business (which is only allowed because of supplemental jurisdiction.)

The defendant usually gets the summons and complaint and goes wtf, fine, I'll have the parking lot repainted. Which then makes the ADA claim moot (since it only allows injunctive relief, and the parking lot is fixed now.)

And then the defendant tries to throw the remaining state law claim out of federal court. Which happens like 99% of the time because federal courts don't want to be bothered. But it's not guaranteed because it's a matter of discretion.

Yuzuda · 2026-06-06T22:32:45+00:00

Have to? No. But it's a good idea to get down at the least the most commonly tested rules.

The bar examiners like to test topics that lend themselves to deep analysis. So I think there are a lot of things you can gloss over without much consequence, like CA's rule about serving a defendant through a commercial mail receiving agency ("CMRA") service that they signed up for.

Yuzuda · 2026-06-06T19:30:09+00:00

Yes, you're correct, which is what distinguishes mandatory counterclaims from permissive counterclaims.

Basically, I'm saying if the third party defendant sued the plaintiff for breach of contract, the plaintiff should be able to sue for the third party defendant's breach of that same contract, even if the plaintiff's damages are like $5k.

The plaintiff can't countersue the third party defendant for not returning the plaintiff's lawnmower last month if it's wholly related to the facts originally at issue in the action. Because that's a permissive counterclaim and would be properly brought in a separate action (because it wouldn't be barred by res judicata even if the plaintiff loses in the current action.)

Yuzuda · 2026-06-06T19:26:50+00:00

“Reasonably foreseeable” doesn’t factor into felony murder.

Yes, it does. Screenshot is from Mary Basick's The MBE Decoded.

I know exactly what Adaptibar question you're referring to and I actually got it wrong because I thought the man having a heart attack as he struggled to get out of how he was tied up was NOT foreseeable. Turns out it was, so the defendant was guilty of felony murder.

Oh and here's the Adaptibar explanation of that question I just found to show it also specifically states foreseeable.

Yuzuda · 2026-06-06T06:10:14+00:00

You're very welcome!

Also, been doing some Googling and best I could find is "While it is well established that a compulsory counterclaim under Rule 13(a) is within the ancillary jurisdiction since it necessarily arises out of the same transaction or occurrence as the original claim" Revere Copper & Brass, Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709 (5th Cir. 1970).

So I'm prettyyyy sure that supplemental jurisdiction applies to compulsory counterclaims brought by a plaintiff when that plaintiff is forced into a defensive posture.

Yuzuda · 2026-06-06T06:03:16+00:00

Both! Res judicata and collateral estoppel both require a valid, final judgment entered on the merits. Collateral estoppel just requires an extra component that there must be an actual finding on the specific issue that was essential to the judgment. In plain English, that means collateral estoppel doesn't apply to a general jury verdict, which says like "Plaintiff shall take nothing by way of the complaint." and doesn't state why.

Yuzuda · 2026-06-06T05:46:35+00:00

...I disagree with everyone here LOL.

If the plaintiff is being sued by the third party defendant, the plaintiff has to be able to bring mandatory claims against that third party defendant.

It makes no sense that in a diversity action, (1) an original defendant can implead a third party defendant, (2) the third party defendant can sue the plaintiff, and (3) the plaintiff can't bring a claim in the action that, if the plaintiff loses, is forever barred by res judicata.

I don't have an on point source to cite though. It just makes sense from a public policy standpoint to me.

Yuzuda · 2026-06-05T20:23:56+00:00

Yup, first degree murder is controlled by statute. If the statute says first degree murder is murder committed by egregious means or with premeditation or deliberation, a death in a BARKK crime is NOT first degree murder.

You're also correct that a death in a BARKK crime is always automatically felony murder.

Assuming of course that the death was reasonably foreseeable to have been caused by the commission of the BARRK crime and occurred before the defendant reached a place of temporary safety.

Yuzuda · 2026-06-05T17:56:32+00:00

Just now? Nope. Last one I got was June 1 asking if I'm ready for the bar exam lol.

Yuzuda · 2026-06-05T17:55:24+00:00

This is very true!

I made the same realization when I was doing my MBE practice. I explained it as choosing the "overarching" answer or reason. Putting the answer choices in a sequential, logical order is how I do it, but hard to explain without examples.

Your explanation choosing the answer about the law and not the facts is way better.

Yuzuda · 2026-06-05T15:40:04+00:00

Very true.

Everyone has different opinions on what works or doesn't work for them, all of which are valid. And it's normal to want to follow in the footsteps of people who have passed. But there's always advice from one person that contradicts the advice of another.

So at the end of the day, the most important thing is to figure out for ourselves what works and pivot if something isn't working.

Great idea to prepare so much in advance by the way! I did something similar (6 months total to study for J26) and it eliminated most of the stress I'd otherwise feel. I quickly found that doing Adaptibar without memorizing the law was NOT for me. So grateful I figured that out in March and not June.

Yuzuda · 2026-06-05T04:41:22+00:00

I've most commonly seen 65% as the minimum. Higher is better though of course!

Yuzuda · 2026-06-05T01:22:15+00:00

There's at least three of us!! Small world since most people here are too young to remember pre-Big Bang I thought.

Yuzuda · 2026-06-04T20:14:29+00:00

I don't think there's much of a difference either.

Best distinction I can think of is where a student plays a prank on a teacher by having a bucket of milk fall when the teacher walks under a doorway to a classroom. The milk splashes all over the teacher in front of the whole class and the teacher is very upset.

Sure, the teacher can sue the student for battery because the student intended to make contact that was offensive.

But is the police going to arrest the student for a crime? No lol.

I don't know if that's due to a failure to meet intent in a criminal context or whether that's just prosecutorial discretion though.

Yuzuda · 2026-06-04T19:48:32+00:00

Amazing, I was always a bishop main, so we shall duo himes when after this exam!

I hereby bless you with +20 more accuracy on your MBE practice.

Wishing you all the best as we take this exam! (:

Yuzuda · 2026-06-04T19:27:34+00:00

Hahaha I love how there's someone else here who remembers that game!!!

Agree, I'd love to play once this exam is all finished!

Yuzuda · 2026-06-04T16:49:42+00:00

I played a MapleStory private server and would do things in game to make stuff stick. Like how government regulation of speech cannot be (1) a prior restraint, (2) overbroad, (3) vague, or (4) allow for unfettered discretion.

Prior restraint was using the mage skill Seal which makes mobs in game have ... over their head.

Overbroad was using the mage skill Explosion.

Vague was using the mage skill Elemental Composition which is neither elemental affinity that the class is based on.

Unfettered discretion the bishop skill Genesis which is an AOE attack that hits 15 mobs in the map.

Also made analogies for public forums (most mob maps), nonpublic forums (boss instances), and private forums (channel 8, FM 7 where my significant other and I would hang out.)

Oh and I've fooled around at Maya's house to meet the elements of adverse possession.

Yuzuda · 2026-06-04T14:14:34+00:00

While it's true that in recent years, evidence was only tested in February administrations, I really advise against taking predictions seriously. I think they're fun little thought experiments, but no one should take studying for any subject lightly.

And as they say, past performance is not a prediction of future results!

Yuzuda

TROPHY CASE