(3) The closeness of the connection between the

Defendant’s conduct and the injury suffered;

(4) The moral blame attached to the Defendant’s conduct;

(5) The policy of preventing future harm;

(6) The extent of the burden of the Defendant;

(7) The consequences to the community of imposing a duty to exercise care with resulting liability for a breach; and

(8) The availability, cost and prevalence of insurance for the risk involved.

While the basic concept of negligence predicated on fault is a fundamentally fair concept, the incongruous and logically inconsistent application of the concept together with social engineering and legislation by the Court system, has resulted in the basic unfairness of the law of negligence as it exists and as it is applied today by the American judicial system. In the present day litigation of a premises liability case, as a general rule questions of whether or not an owner breached his duty of care to invitees and whether an invitee exercised reasonable care for his or her own safety are normally determined to be jury questions except in rare instances and undisputed cases where reasonable minds cannot differ as to the conclusion to be reached.

This tendency to present cases to a jury for a liability determination rather than a judicial determination has the effect of expanding liability and the associated risks of liability in an ever increasing fashion rather than confining liability to an established standard which the law defines as constituting a clearly defined duty and breach thereof. It injects uncertainty in the law in an area where a clearly defined standard of care would not only assist businesses, owners/occupiers in establishing reasonable maintenance and operational policies and procedures but also obviate needless litigation.It breeds uncertainty in an area of the law which cries out for certainty.

B.         The Collateral Development of Liability Without Fault - Strict Liability in Tort

In the past fifty (50) years, separate and apart from the developing law of negligence, the concept of liability without fault, i.e., strict liability in tort developed, principally in the area of products liability which imposed liability on product manufacturers even in those instances where there was no negligence under the public policy theory that public policy demanded that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the marketplace.The theory underpinning strict liability is that the product manufacturer is more able to bear the risk of loss by protecting itself with insurance coverage than an injured party.

Strict liability imputes liability on the commercial supplier of “unreasonably dangerous” products without the need to show any negligence on the part of the defendant. The general rule is stated in Restatement of Torts 2d, § 402A.

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his physical property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) The seller is engaged in the business selling such a product, and

(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) The seller has exercised all possible care in the preparation and sale of his product, and

(b) The user or consumer has not bought the product from or entered into any contractual relation with the Seller.

Strict liability is also imposed for inherently dangerous activity, as well as in certain legislative enactments inclusive of:

(1) ADA (Americans With Disabilities Act);

(2)        OSHA (Occupational Safety and Hazard Act);

(3) CERCLA (Comprehensive Environment Response, Compensation and Liability Act of 1980);

(4)        Industrial Safety Act of the District of Columbian (Safe work Place); and

(5)        Workers Compensation.

II.         LEGAL THEORIES OF LIABILITY

                NEGLIGENCE

A.         MARYLAND

Negligence has four (4) basic elements under Maryland Jurisprudence. They are as follows: (1) the defendant owed a duty to the plaintiff to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injuries; and (4) those injuries were proximately caused by the defendant’s breach of duty.^[1]

If any one of these elements is lacking, the action will not lie.

B.         DISTRICT OF COLUMBIA   

Negligence actions in the District of Columbia require a showing: 1) that the defendant owed a duty to the plaintiff; 2) that the defendant breached the duty; 3) that the breach was proximate cause of; and 4) plaintiff’s damages.^[2]

The existence of a legal duty is ordinarily a question of law for the Court to decide. That duty is usually held to be the reasonable care that is expected of others in the same field or situation.A person has the right to assume that others will exercise reasonable care. A person has the right to assume that others have normal sight, hearing and intelligence, and are exercising ordinary care when using these senses or abilities.

C.         VIRGINIA

In Virginia,^[3] in order to recover for negligence, the plaintiff must establish: 1) that the defendant was under a duty to use care not to injure the plaintiff; 2) that the defendant breached this duty; 3) that this breach of duty was a legally recognized cause of and 4) actual injury to the plaintiff.In other words, to constitute actionable negligence, there must be a duty, a violation thereof, and a consequent injury.^[4]

D.         NEW JERSEY

According to Endre v. Arnold, 300 N.J. Super 136, 142, 692 A.2d 97, 100, ““Three elements are essential for the existence of a cause of action in negligence: (1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach. Whether a duty exists is solely a question of law to be decided by a court and not by submission to a jury.”” citing Anderson v. Sammy Redd and Assoc., 278 N.J.Super. 50, 56, 650 A.2d 376 (App.Div.), cert. denied, 139 N.J. 441, 655 A.2d 444 (1995); Wang v. Allstate Ins. Co., 125 N.J. 2, 15, 592 A.2d 527 (1991).

E.         DELAWARE

Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person's conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn't negligent.The mere fact that an accident occurred isn't enough to establish negligence. Duphily v. Delaware Elec. Coop., Inc., Del. Supr., 662 A.2d 821, 828(1995); Culver v. Bennett, Del. Supr., 588 A.2d 1094, 1096-97 (1991); Robelen Piano Co. v. Di Fonzo, Del. Supr., 169 A.2d 240 (1961); Rabar v. E.I. duPont de Nemours & Co., Del. Super., 415 A.2d 499, 506 (1980); DeAngelis v. U.S.A.C. Transport, Del. Super., 105 A.2d 458 (1954); Kane v. Reed, Del. Super., 101 A.2d 800 (1954).

F.         PENNSYLVANIA

Pennsylvania defines negligence elements as duty or obligation recognized by law, breach of that duty, causal connection between conduct and resulting injury, and actual damages.^[5]Duty is determined by an examination of conduct of reasonable man under the circumstances.^[6]

G. WEST VIRGINIA

In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000); Jack v. Fritts, 193 W.Va. 494, 457 S.E.2d 431 (1995); Parsley v. General Motors Acceptance Corp., 167 W.Va 866, 280 S.E.2d 703 (1981).

                                         CONTRIBUTORY AND COMPARATIVE NEGLIGENCE

A.         MARYLAND

The State of Maryland is a contributory negligence state. Contributory negligence is the failure to observe ordinary care for one’s own safety; it is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances. Union Mem. Hosp., 125 Md. App. 275, 724 A.2d 1272 (1999). A person is deemed contributorily negligent if he fails to observe ordinary care for his own safety. Schweitzer v. Brewer, 280 Md. 430, 374 A.2d 347 (1977). Contributory negligence is a complete defense if such negligence directly contributes to plaintiff’s injury. Baltimore County v. Keenan, 232 Md. 350, 193 A.2d 30 (1963). The defendant has burden of establishing plaintiff’s contributory negligence. Atlantic Mut. Ins. Co. v. Kenney, 323 Md. 116, 591 A.2d 507 (1991). The critical distinction between contributory negligence and assumption of risk is that, in the latter, by virtue of plaintiff’s voluntary actions, any duty defendant owed plaintiff to act reasonably for plaintiff’s safety is superseded by plaintiff’s willingness to take chance. Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991). Further, where Plaintiff is guilty of contributory negligence, the Defendant’s negligence is immaterial. Miller v. Mullenix, 227 Md. 229, 176 A.2d 203 (1962).

A child of tender years held only to that measure of care which children of same age and intelligence would be expected to exercise under similar circumstances. Stein v. Overlook Joint Ven-ture, 246 Md. 75, 227 A.2d 226 (1967). As matter of law, a child aged 4 cannot be held contributorily negligent. Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951). A child aged 5 or over may be contributorily negligent, but is only bound to exercise that degree of care of reasonable person of like age, intelligence, and experience under like circumstances.Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1976).

B.         DISTRICT OF COLUMBIA

The District of Columbia is a contributory negligence jurisdiction. Generally, contributory negligence is a good defense to action based on negligence. Karma Constr. Co., Inc. v. King, 296 A.2d 604 (D.C. 1972).Under the doctrine of contributory negligence, the plaintiff is barred from recovery if his negligence was a substantial factor in causing his injury, even if the defendant was also negligent.Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985). In determining whether a minor is contributorily negligent, the jury must consider his age, education, training and experience.Stevens v. Hall, 391 A.2d 792 (D.C. 1978). The District of Columbia law does not recognize the doctrine of comparative negligence. District of Columbia v. C.F. & B., Inc., 442 F. Supp. 251 (D.D.C. 1977); National Health Lab. v. Ahmadi, 596 A.2d 555 (D.C. App. 1991) (Medical Malpractice). Only exception to this rule is in actions by employee against common carrier. D.C. Code §44-402 (1998).

C.         VIRGINIA

Contributory negligence is a complete defense in Virginia. Morris v. Dame’s Ex’r, 161 Va. 545, 171 S.E. 662 (1933). Contributory negligence shall not constitute a defense unless pleaded or shown by plaintiff’s evidence. Rule 3:16 (d) Rules of Supreme Court of Virginia. Contributory negligence and assumption of the risk are concepts which occasionally overlap but are generally distinguishable; “contributory negligence” connotes carelessness; “assumption of the risk” connotes venturousness voluntarily incurring risk, nature and extent of which are fully appreciated. VEPCO v. Winesett, 225 Va. 459, 303 S.E.2d 868 (1983).

Under seven years of age, a child is conclusively presumed incapable of contributory negligence. Between seven and fourteen years of age, there is a rebuttable presumption of incapacity. At ages fourteen and over, children lose the presumption of incapacity and are presumed to have adult capacity as to contributory negligence but the standard of conduct is of children of the same age, experience and maturity. Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963); Norfolk & Portsmouth R.R. v. Barker, 221 Va. 924, 275 S.E.2d 613 (1981).

D.         NEW JERSEY

Contributory negligence shall not bar recovery in New Jersey unless the negligence of the plaintiff is greater than that of defendant or greater than the combined negligence of multiple defendants. N.J. Stat. Ann. §2A:15-5.1. The judge shall mold judgment by the percentage of each party’s negligence or fault. N.J. Stat. Ann. §2A:15-5.2. The trier of fact must make findings in negligence actions as to the percentage of each party’s negligence or fault. N.J. Stat. Ann. §2A:15-5.2. The total percentage of negligence or fault of all parties is to be 100%. N.J. Stat. Ann. §2A:15-5.2.

Historically, and prior to December 18, 1987 “Joint and Several Liability” in New Jersey meant that a plaintiff could collect the total award from any liable defendant irrespective of that defendant’s percentage of negligence and the “paying” defendant could then seek the other defendants to pay their proportional share of award. N.J. Stat. Ann. §2A:15-5.3 applies to all non-environmental tort actions and states: 1) defendant 60% or more responsible can be compelled to pay entire award; 2) defendant less than 60% responsible can be compelled to pay only percentage of non-economic loss attributable to his negligence. The party paying more than his share may seek contribution from other joint tort-feasors under N.J. Stat. Ann. §2A:15-5.3. In environmental tort actions involving the manufacture, use, disposal, handling, storage or treatment of hazardous or toxic substances successful plaintiff may compel any liable defendant to pay entire award.

Where one defendant settled with the plaintiff prior to trial and at trial, the non-settling defendant was found 100% negligent, non-settling defendant was not entitled to pro tanto reduction of judgment under Comparative Negligence Act but rather joint tort-feasors share on the basis of percentage of negligence. Rogers v. Spady, 147 N.J. Super. 274, 371 A.2d 285 (App. Div. 1977); Cartel Capital Corp. v. Fireco, 81 N.J. 548, 410 A.2d 674 (1980); Lee’s Hawaiian v. Safety First, 195 N.J. Super. 493, 480 A.2d 927 (App. Div.), cert. denied, 99 N.J. 205, 491 A.2d 703 (1984). See Ryan v. KDI Sylvan Pools, 121 N.J. 276, 579 A.2d 1241 (1990) for apportionment of damages between strictly liable defendant, negligent defendant and contributorily negligent plaintiff. Where one or more defendants settle, any verdict recovered by plaintiff against non-settling defendants will be reduced by percentage of negligence attributable to settling defendants. Cartel Capital Corp., supra; Young v. Latta, 233 N.J. Super. 520, 559 A.2d 465 (App. Div. 1989), aff’d, 123 N.J. 584, 589 A.2d 1020 (1991). New Jersey courts permit “high-low agreements” in which defendant agrees to pay plaintiff mini-mum recovery in return for plaintiff’s agreement to accept maximum sum regardless of outcome. Benz v. Pires, 269 N.J. Super. 574, 636 A.2d 101 (App. Div. 1994). Failure of non-settling defendant to assert cross-claim against settling defendant will not bar jury from assessing proportionate liability of settling defendant but non settling defendant must give timely notice as to alleged liability of settling defendant. If no fact issue is presented to trier regarding settling defendant liability then trier cannot assess proportionate liability against settling party.Young, supra.

E.         DELAWARE

The doctrine of comparative negligence has been adopted by statute, replacing contributory negligence, and applies to all actions for wrongful death or injury to person or property.10 Del. Code §8132 (effective July 17, 1984). The fact that a plaintiff may have been contributorily negligent will not bar recovery where such negligence was not greater than the negligence of the defendant or combined negligence of multiple defendants. Damages shall be diminished by the court in proportion to the amount of negligence attributed to the plaintiff. Passive assumption of risk is an aspect of comparative negligence, not a complete bar to recovery. No duty exists to anticipate the negligence of another. Levine v. Lam, Del. Supr., 226 A.2d 925 (1967). The defense is not available to a defendant whose conduct is wanton or willful. Gushen v. Penn Central Transp. Co., Del. Supr., 280 A.2d 708 (1971). However, “contributory wantonness” is a defense to a defendant’s willful or reckless misconduct.Wagner v. Shanks, Del. Supr., 194 A.2d 701 (1963).

F.         PENNSYLVANIA

The comparative negligence doctrine was adopted by the Pennsylvania legislature in Act 152 of 1976, 42 Pa. Cons. Stat. §7102 (a) and applies to negligence resulting in the death or injury to persons on property, not purely financial loss. Wescoat v. Northwest Sav. Ass’n, 378 Pa. Super. 295, 548 A.2d 619 (1988). The section only applies to negligence actions, not strict liability. McMeekin v. Harry M. Stevens Inc., 365 Pa. Super. 580, 530 A.2d 462 (1987). Contributory negligence bars recovery only where a plaintiff’s negligence is greater than a defendant’s negligence. 42 Pa. Cons. Stat. §7102 (a).

G. WEST VIRGINIA

West Virginia abolished the contributory negligence doctrine. In West Virginia, a party is not barred from recovering damages in a tort action so long as his negligence or fault does not exceed or equal the combined negligence or fault of other parties involved in the accident. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Accord, Adkins v. Whitten, 171 W. Va. 106, 297 S.E.2d 881 (1982); Everly v. Columbia Gas, 171 W. Va. 534, 301 S.E.2d 165 (1982). The principles of comparative fault or negligence apply not only to actions in tort involving personal injury or property damages, but also to actions in tort involving pecuniary damage alone. Brammer v. Taylor, 175 W. Va. 728, 338 S.E.2d 207 (1985) (applying comparative negligence to actions based on bank’s alleged unauthorized practice of law and negligence in assisting with will preparation). The comparative negligence doctrine is fully retroactive. Sullivan v. Billey, 163 W. Va. 445, 256 S.E.2d 591 (1979). The apportionment of negligence is a question for the jury.Raines v. Lindsey, 188 W. Va. 137, 423 S.E.2d 376 (1992).

                                                   PRODUCTS LIABILITY/STRICT LIABILITY  

A.         MARYLAND

The State of Maryland adopted strict liability in tort in the landmark case of Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976). The Maryland Court of Appeals in Phipps specifically adopted strict liability in tort predicated upon Section 402A of the Restatement (Second) of Torts.Under the Restatement, in order to recover under a theory of strict liability in tort, a Plaintiff must show:

1.         that the product was in a defective condition at the time it left the possession or control of the seller;

2.         that it was unreasonably dangerous to the user or consumer;

3.         defect was a cause of the injuries; and

4.         that the product was expected to and did reach the consumer without substantial change in its condition.

Section 402A on its face, subjects a seller of a defective product to strict liability without regard to the knowledge of the defect and “even though (the seller) has exercised all possible care in the preparation and sale of the product.” [Restatement Second] of Torts at 402A comment (a) 1965.

In an action founded on strict liability in tort, as opposed to a traditional negligence action, the plaintiff need not prove any specific act of negligence on the part of the seller. The relevant inquiry in a strict liability action focuses not on the conduct of the manufacturer but rather on the product itself.

A products liability action may be based on the failure to warn. When a product is alleged to be defective because of a failure to give an adequate warning, the Court has held that the seller is not strictly liable for failure to warn unless the seller had “knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of . . . . of the . . . . danger.”The Court adopted comment (j) of Section 402A of the Restatement which is applicable to a strict liability cause of action where the alleged defect is a failure to give adequate warning(s) in so holding the Court adopted the “state of the art” theory of liability as espoused in comment (j), the Court held that a manufacturer of a product is held to the knowledge of an expert in the field and that the knowledge or state of the art component is an element to be proven by the Plaintiff.In a strict liability failure to warn case, the alleged defect is the failure of the seller to give an adequate warning. The seller, however, need not give any warning if the requisite state of the art or knowledge does not require it. Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 623 (1992).

Under Maryland law, contributory negligence is not a defense to a strict liability claim. However, misuse of a product may bar recovery where the misuse is the sole proximate cause of damage, or where it is the intervening or superseding cause. For example,a high speed electric drill may be defective because a manufacturing defect causes it to short circuit and produce a shock during normal usage. A plaintiff who attaches a brush to that drill and in attempting to clean his teeth suffers injury to his mouth from the high speed of the brush will lose because his misuse is the sole cause of his misfortune, and the defect in the drill is not in any way related to the harm Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581 495 A.2d 348 (1985).

In Maryland, in determining whether a manufacturer should be held strictly liable for injuries sustained by the design of a particular product is a decision that involves the consideration of important policy issues. Lundgren v. Ferno-Washington Company, Inc., 80 Md. App. 522 (1989). For the most part, the strict liability doctrine does not apply to cases where liability is depended upon an existence of a design defect. Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118 (1975). It is when the product involves an inherently unreasonable risk when the court examines the issue of strict liability.

Under the doctrine of strict liability, the defect of a product can be of manufacture or of design but for the most part, the question of whether a particular design is defective depends upon a balancing of the utility of the design verses the magnitude of the risk.Anthony Pools v. Shehan, 295 Md. 285, 455 A.2d 434 (1983). Under such test, a product is defective as to design if the risk or danger of the product outweighs the product's utility. Simpson v. Standard Container Company, 72 Md. App. 199, 527 A.2d 1337 (1987). In some instances, where risks in the design are inherently unreasonable, no balancing test is necessary in strict liability actions. Troja v. Black and Decker Manufacturing Company, 62 Md. App. 101, 488 A.2d 516 (1985).

B.         DISTRICT OF COLUMBIA

The District of Columbia recognizes strict liability in tort. D.C. has adopted a strict liability standard in products liability cases.Product misuse and assumption of the risk are defenses to strict liability, whereas contributory negligence is not."Product Misuse" is defined as the use of a product in a manner that could not reasonably be foreseen by the Defendant.^[7] In some situations, a Plaintiff's failure to read a warning may be a manufacturer's defense in a products liability action.^[8]This defense may be overcome; however, by evidence that a properly worded warning would have been verbally communicated to Plaintiff in, for example, his or her work place.^[9]   An injured party has a cause of action against all parties who participated in placing the defective product into the stream of commerce.^[10]   The Plaintiff need not be a purchasers of the product, but can be an intended user of the consumer.^[11]

C.         VIRGINIA

Virginia does not recognize a cause of action for strict liability arising out of a design defect. Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419 (1988). A products liability action brought in Virginia must be based either on negligence, or be based on a breach of an implied or expressed warranty.These would include warranties of merchantability and fitness for a particular purpose. If a product is unreasonably dangerous, then the courts would generally find that there is a breach of warranty. The main difference between a breach of warranty claim for strict liability and a Restatement of Tort Section 401 (a) claim for strict liability, is that, in Virginia, it is still possible to, under the appropriate circumstances, disclaim warranties. Lack of privity of contract is not a defense for a breach of warranty claim.

D.         NEW JERSEY

Products liability law in New Jersey is governed by statute N.J.S.A. 2A:58C-1 et seq. Punitive Damages in New Jersey are also governed by statute N.J.S.A.2A:15-5.9 et seq. The following excerpts from the statute describe fully the extent of the law in New Jersey:

                     Liability

A manufacturer or seller of a product shall be liable in a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because if: a. deviated from the design specification, formula, or performance standards or the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contained adequate warnings or instructions, or c. was designed in a defective manner.

                    Defenses

a.         In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacture or seller shall not be liable if:

(1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product; or

(2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that in an inherent characteristic of the product that consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or

(3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined in section 4 of this act.

b.         The provisions of paragraph (1) of subsection a. of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all of the following determinations:

(1)        The product is egregiously unsafe or ultra hazardous;

(2)        The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the product’s risks, or the product poses a risk of serious injury to persons other than the user or consumer; and

(3)        The product has little or no usefulness.

c.       No provision of subsection a. of this section is intended to establish any rule, or alter any existing rule, with respect to the burden of proof.

                                                    Adequate product warning or instruction;

                                            rebuttable presumption of adequacy after approval

In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used, or in the case of prescription drugs, taking into account the characteristics of, and the ordinary knowledge common to, the prescribing physician. If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. § 301 et seq. or the "Public Health Service Act," 58 Stat. 682, 42 U.S.C. § 201 et seq., a rebuttable presumption shall arise that the warning or instruction is adequate. For purposes of this section, the terms "drug", "device", "food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."

             Punitive Damages

Punitive damages may be awarded to the plaintiff only if the plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.

In determining whether punitive damages are to be awarded, the trier of fact shall consider all relevant evidence, including but not limited to, the following:

(1) The likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;

(2) The defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;

(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and

(4) The duration of the conduct or any concealment of it by the defendant.

If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then determine the amount of those damages. In making that determination, the trier of fact shall consider all relevant evidence, including, but not limited to, the following:  

(1)        All relevant evidence relating to the factors set forth in this section

(2)        The profitability of the misconduct to the defendant;

(3)        When the misconduct was terminated; and

(4)        The financial condition of the defendant.

Punitive damages shall not be awarded if a drug or device or food or food additive which caused the claimant's harm was subject to pre-market approval or licensure by the federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. § 301 et seq. or the "Public Health Service Act," 58 Stat. 682, 42 U.S.C. § 201 et seq. and was approved or licensed; or is generally recognized as safe and effective pursuant to conditions established by the federal Food and Drug Administration and applicable regulations, including packaging and labeling regulations. However, where the product manufacturer knowingly withheld or misrepresented information required to be submitted under the agency's regulations, which information was material and relevant to the harm in question, punitive damages may be awarded. For purposes of this subsection, the terms "drug", "device", "food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."

While there are some exceptions, punitive damages are capped at five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.

                                                Environmental tort action; inapplicability of act:

The provisions of this act shall not apply to any environmental tort action.

                  Burden of proof in product liability action; establishment or alteration of existing rule:

Except as otherwise expressly provided in this act, no provisions of this act is intended to establish any rule, or alter any existing rule, with respect to the burden of proof in a product liability action.

                                                        Medical devices; liability of provider

In any product liability action against a health care provider for harm allegedly caused by a medical device that was manufactured or designed in a defective manner, or for harm caused by a failure to warn of a danger related to the use of a medical device, the provider shall not be liable unless: (1) the provider has exercised some significant control over the design, manufacture, packaging or labeling of the medical device relative to the alleged defect in the device which caused the injury, death or damage; or (2) the provider knew or should have known of the defect in the medical device which caused the injury, death or damage, or the plaintiff can affirmatively demonstrate that the provider was in possession of facts from which a reasonable person would conclude that the provider had or should have had knowledge of the alleged defect in the medical device which caused the injury, death or damage; or (3) the provider created the defect in the medical device which caused the injury, death or damage.

E.         DELAWARE

The Delaware Courts recognize products liability actions, but they do not recognize products liability actions based on the theory of strict liability. The Supreme Court of Delaware held that the theory of strict liability is precluded by the Uniform Commercial Code.  Cline v. Prowler Indus. of Maryland, Inc., 418 A. 2d 968 (Del. 1980).

F.         PENNSYLVANIA

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the Courts accepted that a manufacturer or supplier should be liable for sale or distribution of a product "in a defective condition unreasonably dangerous" to the user or consumer or his property.Webb also extended the rule of strict liability to defective products by adopting the Restatement of the Law of Torts 2d. § 402A.

G. WEST VIRGINIA

West Virginia has adopted strict liability in products liability cases to recover for property damage when a defective product damages property only. Star Furniture v. Pulaski, 171 W.Va. 79, 84, 297 S.E.2d 854, 859 (1982).However the defense of assumption of the risk is available against the Plaintiff in a products liability case, King v. Kayak Mgt. Corp., 387 S.E. 2d 511 (1989), and the W. Va. Courts have held generally that "the doctrine that conditions or activities which are intrinsically dangerous will result in liability without proof of negligence will not be adopted into the state’s tort products liability law."Morning Star v. Black and Decker, 253 S.E. 2d 666 (1979).

   JOINT & SEVERAL LIABILITY

A.         MARYLAND   

Maryland has codified its rules regarding joint tort-feasors in its Courts & Judicial Proceedings Volume, Title 3, Subtitle 14. According to the Uniform Contribution Among Tort-feasors Act (UCATA), a release by an injured person of one tort-feasor does not release additional tort-feasors unless they are released by the injured party. However, any amount paid by a single tort-feasor reduces the total consideration available to the injured party by the amount paid.Section 3-1404 titled"Effective Release on Injured Person Claim":

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

According to § 3-1405, titled "Effect of release on right of contribution":

a release by the injured person of one joint tort-feasor does not relieve him from liability to make contribution to another joint tort-feasor unless the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person's damages are recoverable against all other tort-feasors.

The Court of Appeals of Maryland first considered the application of these sections, previously codified as §19 and §20 of the Maryland UCATA, in Swigert v. Welk, 133 A.2d 428 (1957).The Maryland Court, posing a hypothetical situation, indicated that if a plaintiff received a consideration from one joint tort-feasor for a pro rata release, then the amount of consideration, if greater than the released tort-feasors' pro rata share, will reduce the judgment entered against the remaining tort-feasor by the amount that consideration paid exceeded the pro-rata share.

 In a subsequent case, Chilcote v. Von Der Ahe Van Lines, 476 A.2d 204 (1984), the Court held that where a released joint tort-feasor paid a settlement amount less than his ultimate pro rata share of the subsequent judgment, then the subsequent judgment would be set-off by the released Defendant's pro rata share rather than the consideration paid by him in settlement.

Another important case which interpreted §19 and §20 of the Act is Martinez v. Lopez, 476 A.2d 197 (1984).The Martinez Court held that where the amounts paid by the settling joint tort-feasor is more than the ultimate judgment, the pro rata reduction produces a negative result which fully satisfies the judgment and the plaintiff may not recover anything from the defendant against whom the judgment was entered. The rationale for this theory is that an injured party is entitled to only one satisfaction for an injury. It is clear that under the facts of Martinez, the non-settling defendant enjoys a windfall since the settling defendant pays the entire judgment. The following hypotheticals will provide clarification.

Example No. 1: Plaintiff v. Defendants I and 2.

Plaintiff enters into a valid joint tort-feasor release with Defendant 1 for the consideration of $60.The plaintiff proceeds against Defendant 2 and obtains a judgment in the amount of $100. Pursuant to Swigert, plaintiff may only recover $40 from defendant 2 since the amount paid by the settling defendant exceeds the pro rata share ($50).

Example No. 2: Plaintiff V. Defendants 1 and 2.

Plaintiff enters into a valid joint tort-feasor release with Defendant 1 in the amount of $20 and obtains a judgment against Defendant 2 in the amount of $100. Pursuant to Chilcote, Plaintiff may only recover $50 from defendant 2 since the judgment is reduced by the pro rata share ($50) notwithstanding that the Plaintiff recovered less than the pro rata share from the settling tort-feasor.

Example No. 3: Plaintiff v. Defendants 1 and 2.

Plaintiff enters in a joint tort-feasor release with Defendant 1 in the amount $150 and obtains a judgment against Defendant 2 in the amount of $100. Pursuant to Martinez, Plaintiff may recover nothing from Defendant 2 since the amount of the consideration paid by the settling tort-feasor, $150, exceeds the amount of the judgment.

Further, according to Chilcote, in a situation involving a master-servant relationship, and the liability of the master is vicarious, the master-servant represent but one pro rata share. For example, a driver of an automobile and an owner who is not the pro rata share. Moreover, Martinez (Example No. 3) held that the settling tort-feasor had no right of contribution from the non­settling tort-feasor even though he paid in excess of the judgment subsequently obtained against the non-settling tort-feasor.

However, one should not conclude from the mere existence of two or more tort-feasors that they are necessarily deemed to be "joint tort-feasors," a judicially crafted term of art.Generally, two or more tort-feasors are considered joint tort-feasors when they act in concert or concurrently to cause one harm. Morgan v. Cohen, 523 A.2d 1003 (1987). In Cohen the claimant who was injured in a car accident settled her case against the other driver and executed a general release whereby for consideration she released all of mankind.Subsequently, the claimant instituted a malpractice action Dr. Cohen. The Court held that the action against Dr. Cohen was not barred as a matter of law even though the plaintiff executed a general release since the injuries inflicted by the doctor were not caused by the accident. The Court reasoned that Dr. Cohen caused separate and additional harms for which he could be held independently liable. This is so despite the fact that the original tort-feasor could be held jointly liable for the harms allegedly caused by Dr. Cohen.This case has been widely criticized and has caused considerable confusion within the legal community.Nevertheless, it serves as an example, albeit a contentious one, where two concurrent or successor tort-feasors have been held not to have caused the same harm and the latter tort-feasor not necessarily subject to the terms of a general release.

B.         DISTRICT OF COLUMBIA

D.C. has not adopted the Uniform Tort-Feasor Act. In cases where the Plaintiff has settled the claim prior to trial with I or 2 or more joint tort-feasors, the Defendant remaining at trial is entitled to a set-off from the judgment based on the settlement. If the trier of fact has found the settling Defendant liable, a pro rata (based on the number of tort-feasors) reduction may be ordered.^[12]The credit may be limited in a low verdict situation such that a Defendant found liable at trial at least will have to pay his or her pro rata share of the verdict.

C.         VIRGINIA

The law in Virginia was stated in Maroulis v. Elliott, 207 Va. 503 (1966). "Where separate and independent acts of negligence of two parties are the direct cause of a single injury to a third person and it is impossible to determined in what proportion each contributed to the injury, either or both are responsible for the whole injury." Maroulis, 207 Va. at 511. The negligence of those two parties need not occur simultaneously, as long as they concur in proximately causing a single indivisible injury for joint and several liability for the entire damage claimed. The question of whether there is such concurring negligence that proximately causes a single indivisible injury is a question for the jury to decide. Dickenson v. Tabb, 208 Va. 184, 193 (1967).

Virginia has adopted the rule that allowed for one joint tort-feasor to enter into a release with the Plaintiff without releasing any other tort-feasor. Under Virginia Code Section 8.01-35.1., a Plaintiff may settle with one joint tort-feasor, without releasing any other joint tort-feasor.

Va. Code Ann. § 8.01‑35.1 states:

A. When a release or a covenant not to sue is given in good faith to one of two or more persons liable in tort for the same injury, or the same property damage or the same wrongful death:

1. It shall not discharge any of the other tort-feasors from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other tort-feasors or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and

2. It shall discharge the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.

B. A tort-feasor who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another tort-feasor whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the tort-feasor which is in excess of what was reasonable.

C. For the purposes of this section, a covenant not to sue shall include any "high‑low" agreement whereby a party seeking damages in tort agrees to accept as full satisfaction for any judgment no more than one sum certain and the party or parties from whom the damages are sought agree to pay no less than another sum certain regardless of whether any judgment rendered at trial is higher or lower than the respective sums certain set forth in the agreement and whereby such party provides notice to all of the other tort-feasors of the terms of such "high‑low" agreement immediately after such agreement is reached.

D. A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01‑55 and 8.01‑424.

E. This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.

D.         NEW JERSEY

New Jersey recognizes the theory of joint and several liability, in which two or more people who owe a duty, which each performs negligently, are held jointly liable. This remains true even though their duties may have been diverse or disconnected, as long as the acts caused an injury to the plaintiff.Melone v. Jersey Cent.Power & Light Co., 18 N.J. 163, 113 A.2d 13 (1955). New Jersey also adheres to the alternative liability theory, in which the plaintiff is unable to determine which tort-feasor is actually liable for the injury, or what share the tort-feasors are liable. Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J. Super. 183, 406 A.2d 185 (1979).

E.         DELAWARE

Delaware recognizes joint and several liability. See 10 C.A. 6301 et esq."Joint tort-feasors' means two (2) or more persons jointly or severally liability in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." Id.Neither the basis of liability nor the relationship among the joint tort-feasors is relevant.Blackshear v. Clark, 391 A.2d 747 (Del. Supr. 978).Joint tort-feasors do have the right to recover amongst themselves under the theories of contribution and indemnification.

F.         PENNSYLVANIA

Pennsylvania law holds joint tort-feasors jointly and severally liable to a plaintiff for the injury caused by their negligence. Rau v. Marko, 17 A.2d 422, 341 Pa. 17 (1941). Under Pennsylvania statutory law, recovery is allowed against each defendant for that portion of the total dollar amount of their causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.

G. WEST VIRGINIA

Joint tort-feasors are jointly and severally liable, and if sued jointly both are liable to the extent proved. Kvdom v. Frazier, 412 S.E. 2d 219 (1991). A judgment against one tort-feasor is not necessarily an acquittal of the other. Plaintiff may only obtain satisfaction against one joint tort-feasor and that will bar recovery against the remaining tort-feasor, however, payment of a judgment by a party who is secondarily liable confers upon that party a right to reimbursement by the party which is primarily liable.

            INDEMNIFICATION

A.         MARYLAND

It is first important to note that the Uniform Contribution Among Tort-Feasors Act previously set forth under the topic of Joint Several Liability, does not impair any right of indemnity under existing laws. In Maryland, indemnity requires that when one of the wrongdoers is primary liable, that wrongdoer must bear the whole loss.^[13]Under this analysis, a party is only entitled to indemnification when the parties actions, although negligent, are considered to be passive or secondary to those of the primary tort-feasor.According to Hanscome v. Perry,^[14] the right of indemnification may arise by express agreement or implication. Thus, assuming a valid indemnity agreement exists, the court would then apply the active passive test to determine whether or not one of the defendants is entitled to be indemnified by the other.

B.         DISTRICT OF COLUMBIA

In D.C., indemnity is a common-law remedy which shifts the monetary loss from one compelled to pay it to another whom equity dictates should bear it instead.^[15]Implied indemnity is essentially an equitable remedy that arises without agreement, and by operation of law to prevent result which is regarded as unjust or unsatisfactory.^[16]In D.C., where the language of an indemnification agreement is broad and sweeping, the Court will construe the agreement liberally so as to encompass losses incurred in whole or part by the negligence of the indemnitee.^[17]A cause of action for indemnity accrues on the date payment is made by the party seeking indemnity, which is three (3) years in D.C. for indemnification and contribution.

C.         VIRGINIA

Virginia Code section 8.01-249 (5) provides that an action for indemnity is deemed to accrue when the indemnitee has paid or discharged a legal obligation. A third party claim for indemnity cannot be asserted before the cause of action is deemed to have accrued.^[18]Absent a contract, equitable principles may allow an innocent party to recover from the negligent act for the amounts paid and the discharge of liability.^[19]   For active/passive negligence it is not the form of the act or omission that defines the character of negligence as active or passive, for indemnity purposes, it is the relationships between the parties involved and the nature of the legal obligation violated by the negligence that decides the issue.^[20]

D.         NEW JERSEY

In New Jersey, common law indemnification shifts cost of liability from one who is constructively or vicariously liable to tort-feasor who is primarily liable.^[21]The party seeking indemnification must be free from fault.^[22]

E.         DELAWARE

Delaware recognizes a cause of action for equitable indemnification.^[23]In order for a party to recover under equitable indemnity that party's negligence must be passive and seek indemnification from the active party.^[24]

F.         PENNSYLVANIA

Indemnity is an equitable remedy founded in the common-law that shifts loss from one defendant to another.^[25]In Pennsylvania, an indemnification relationship may be formed in three (3) ways: implied contract, expressed contract, or by operation of law, or other circumstances which justify this equitable relief. If an indemnitee made a good faith settlement and notice is given to the indemnitor, the indemnitee still assumes the risk of proving liability and the reasonableness of the settlement in any subsequent litigation.^[26]

G. WEST VIRGINIA

Under West Virginia law, implied indemnification is an equitable remedy whereby:

[O]ne defendant, who has committed no independent wrong, is held liable for the entire loss of a plaintiff while another entity, which may or may not be named as a defendant in the plaintiff's suit to establish liability, would be allowed to escape liability even though it actually caused or was responsible for causing the wrongdoing.^[27]

Implied indemnity prevents the party who is primarily liable from being unjustly enriched and allows the party that is without fault restitution.^[28]A party can be indemnified only if that party is without fault.^[29]

              CONTRIBUTION

A.         MARYLAND

Under Maryland statutory law, the right of contribution exists among joint tort-feasors. The issue of contribution depends on joint tort-feasors' liability to third parties.^[30]   Under the Maryland Uniform Contribution Among Joint Tort-Feasors Act, the amount recoverable from the non-settling defendant when added to the amount recoverable from the settling defendant cannot exceed the plaintiff's verdict.^[31]The Act defines "joint tort-feasors" as "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them."^[32]  

According to § 3-1402 of the Maryland Uniform Contribution Among Tort-Feasors Act:

(a)        The right of contribution exists among joint tort-feasors.

(b)        A joint tort-feasor is not entitled to a money judgment for contribution until the joint tort-feasor has by payment discharged the common liability or has paid more than a pro rata share of the common liability.

(c)        A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.^[33]

According to § 3-1405 of the Maryland Uniform Contribution Among Tort-Feasors Act, a release by the injured person of one joint tort-feasor does not relieve the joint tort-feasor from liability to make contribution to another joint tort-feasor unless the release:

(1) Is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued; and

(2) Provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person's damages recoverable against all other tort-feasors.^[34]

B.         DISTRICT OF COLUMBIA

Both contribution and indemnification are available under D.C. law.^[35]However, neither contribution nor indemnity can be awarded to a party who is not a joint tort-feasor.^[36] In other words, the District of Columbia permits a party to enforce contribution against one who shares common liability to the original Plaintiff.^[37]Under the principal of contribution a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of a judgment from the other joint tort-feasor(s) whose negligence contributed to the injury and who were also liable to the Plaintiff.^[38]For contribution to be available, two (2) or more Defendants must have acted in concert, or independently, causing a single injury in an indivisible manner. Just because the acts are not simultaneous but successive doesn't mean that contribution is improper where acts concur in causing injury.The contribution among joint tort-feasors is pro-rata in the District of Columbia. The fact that the negligence of one tort-feasor may be greater than that of another does not change the method of equally apportioning contribution, since D.C. law does not recognize degrees of negligence.^[39]

C.         VIRGINIA                

By statute in Virginia, one joint tort-feasor can seek contribution of another joint tort-feasor as a result of payment of a judgment.^[40]

According to Va. Code. Ann. § 8.01-35.1:

A.When a release or a covenant not to sue is given in good faith to one of two or more persons liable in tort for the same injury, or the same property damage or the same wrongful death:

1.It shall not discharge any of the other tort-feasors from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other tort-feasors or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and

2.   It shall discharge the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.

B.A tort-feasor who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another tort-feasor whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the tort-feasor which is in excess of what was reasonable.^[41]

D.         NEW JERSEY

By statute in New Jersey, a joint tort-feasor can seek contribution against another joint tort-feasor.^[42]New Jersey is a comparative negligence state, therefore each defendant is only liable for the pro rata share equaling the percentage of his negligence.

According to the New Jersey Joint Tort-Feasors Contribution Law: “Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tort-feasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tort-feasors, either in one action or in separate actions, and any one of the joint tort-feasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tort-feasor or joint tort-feasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought.”^[43]

E.         DELAWARE

Delaware recognizes the right of contribution in 10 Del.C.A. § 6302, which states the following:

(a) The right of contributions exists among joint tort-feasors.

(b)        A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

(c)        A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.

(d)        When there is such a disproportion of fault among joint tort-feasors as to render inequitable an equal distributor among them of common liability by contribution, the relative degree of fault of the joint tort-feasors shall be considered in determining their pro-rata share.

F.         PENNSYLVANIA

Pennsylvania is a comparative negligence state and adheres to the Uniform Contribution Among Tort-Feasors Act. 42 Pa.C.S.A. § 8321 et seq.According to § 8324 of the Act:

(a) General rule.--The right of contribution exists among joint tort-feasors.

(b) Payment required.--A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

(c) Effect of settlement.--A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.

According to § 7102(b.1):

(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (b.2).

(2) Except as set forth in paragraph (3), a defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant's liability.

(3) A defendant's liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:

(i) Intentional misrepresentation.

(ii) An intentional tort.

(iii) Where a defendant has been held liable for not less than 60% of the total liability apportioned to all parties.

(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act.

(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.

(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant's proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.

(b.2) Apportionment of responsibility among certain nonparties and effect. For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party.^[44]

G. WEST VIRGINIA

The West Virginia courts have recognized both an inchoate right of contribution, as well as a statutory right of contribution. W.Va. Code §55-7-13 holds, “Where a judgment is rendered in an action ex delicto against several persons jointly, and satisfaction of such judgment is made by any one or more of such persons, the others shall be liable to contribution to the same extent as if the judgment were upon an action ex contractual. ”Comparative contribution between joint tort-feasors is based upon relative degrees of negligence. Sitzes v. Anchor Motor Freight, 289 S.E. 2d 679 (1982) . The right of inchoate contribution arises under any theory of liability which results in a common obligation to the Plaintiff, Board of Education v. Zando, 390 S.E. 2d 796 (1990). If there is no allocation of negligence, apportionment is made on a pro-rata basis. "Mary Carter" agreements are enforceable and not per se contrary to public policy, however such agreements must be promptly disclosed to both the court and opposing parties.

         VICARIOUS LIABILITY

A. MARYLAND

Under Maryland law, the tortious conduct of one person may equate to the civil culpability of another.Generally speaking, however, there must exist some relationship between the two (2) such as employer and employee, or principal and agent. Most often, this situation arises in the context of an employer and employee, under the doctrine of respondeat superior.^[45]

It is well settled under the law of Maryland, that the acts for which the employer is being held liable must be those which the employee committed within the scope of their employment.^[46]The scope of employment factor is generally the most litigated issue presented by a respondeat superior claim.An employee’s tortious conduct is considered to be within the scope of his employment when the conduct is in furtherance of the business of the employer and/or is authorized by the employer.^[47]An employee’s tortious conduct is not considered within the scope of employment when the employee’s actions are personal.^[48]

The Sawyer decision was also instructive in that it set forth a host of factors that apply to ascertain whether the conduct of the employee at issue was so similar or incidental to the conduct authorized by the employer to be considered within the scope of employment. These factors are as follows:

(a) whether the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the servant;

(d) the extent to which the business of the master is apportioned between different servants;

(e) whether the act is outside the enterprise of the master or, of within the enterprise, has not been entrusted to any servant;

(f) whether the master has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether the instrumentality by which the harm is done had been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether the act is seriously criminal.”^[49]

If the answer to these questions indicates that the employee’s conduct at the time of the tort are in fact in furtherance of the employment relationship or to the benefit of the employer, than the employee will be deemed to have been acting within the scope. The natural consequences of such a determination will be the liability of the employer for the actions of the employee. Additionally, it is worth noting that the party wishing to invoke the doctrine bears the burden of establishing the existence of the relationship.

As to principal and agent relationship, the principal will be liable for the tortious acts of an agent if that agent was acting within the scope of the principal-agent relationship or with the authority of the principal.^[50]

B. DISTRICT OF COLUMBIA

In order to recover under this doctrine, a plaintiff must first establish that an employee/ employer relationship does indeed exist.^[51]To decide whether an employee is employed by the Defendant, the fact finder determines if the defendant had the right to control^[52] the employee’s conduct in the performance of his job.

Once the relationship has been established, the fact finder must then determine whether the acts or wrongs were committed in furtherance of the business of the employer.If the employee does an act in furtherance of the business of the employer and his actions are at least partly motivated by a desire to further the employer’s interest, then the doctrine can be applied. Thus, making the employer responsible for the employee’s actions.

For the intentional use of force, the fact finder must find that:

a) the employee’s conduct was of the same general nature as that conduct which the employer has authorized, or that it was incidental to authorized conduct; and b) that the employee’s use of force was foreseeable by the employer.

C. VIRGINIA

Vicarious liability is the situation created when a person or entity is held liable for the injuries caused by another even though that person or entity itself was not actually at fault or committed any wrong. When a person or entity is held vicariously liable that person or entity is being held liable despite the fact that he/it is not guilty of any wrongdoing; he/it is being held liable for what someone else did. A finding of vicarious liability depends upon the existence of some relationship between the actual wrongdoer and the person or entity being deemed vicariously liable.

                    MINORS

A. MARYLAND

Maryland follows the common law standard regarding the liability of children which holds that a child is not to be held to the same standard/degree of care that an adult would have used. He is to be held to that standard/degree of care which ordinary prudent children of his age, intelligence, experience and development would have used under the same circumstances.^[53]Children under the age of five (5) are as a matter of law, incapable of contributory negligence.^[54]According to article one statute §24 of the Maryland Annotated Code, a person of 18 years of age or more is an adult for all purposes whatsoever and has the same legal capacity rights, powers, privileges, duties, liabilities, and responsibilities.The term minor refers to persons who has not attained the age of 18 years.

B. DISTRICT OF COLUMBIA

The age of majority in D.C. is eighteen (18).^[55]The District of Columbia adopts the tender years doctrine, not the common law, wherein a child of tender years, depending on his age and knowledge, may not be charged with contributory negligence.^[56]

In the District of Columbia, a child is liable for his torts as if he were an adult except where his tender years preclude him from framing the mental attitudes necessary to complete the tort in question.^[57]In cases of tort requiring malice as an essential element, a very young child may be considered as a matter of law incapable of determining the requisite evil intent and no liability would attach to his act.^[58]Lastly, with respect to negligent torts, the age of a child may prove to be a mitigating factor, since he is held liable only where he has failed to exercise a degree of care equal to that governing the ordinary child of comparable age, knowledge and experience.^[59]

C. VIRGINIA

The age majority in Virginia is eighteen (18).^[60]  Virginia follows the common law rule concerning negligence by a minor. A minor under the age of seven (7) cannot be responsible for negligence.Between the ages of seven (7) and fourteen (14), there is a rebuttable presumption that a minor cannot be responsible for negligence.^[61] A minor over the age of fourteen (14), can be responsible for negligence.^[62]For a minor to be determined negligent, "The evidence must show that the plaintiff's conduct did not conform to the standard of what a reasonable person of like age, intelligence, and experience would do under the circumstances for his own safety and protection."^[63]

While an individual is a minor, the statute of limitations does not run against that minor, except in medical malpractice cases. In medical malpractice cases, the injured minor has two (2) years after reaching the age of ten (10) within which to bring a claim.

D. NEW JERSEY

New Jersey holds the age of majority to be 18 years old.^[64]Minors are liable for intentional torts (acts of violence).^[65]Minors in New Jersey are held to the standard of care applicable to reasonable persons of like age, intelligence and experience under like circumstances.^[66]Certain activities performed by minors are so hazardous that the courts will hold them to adult standards (driving car or boat).^[67]

E. DELAWARE

In Delaware the age of majority is eighteen (18).^[68]Delaware provides statutory authority to recover up to $5,000.00 from the parents or guardian of a minor who intentionally or recklessly destroys personal or real property.^[69]Delaware statutory law also holds the owner of a car jointly and severally liable with a minor who is permitted to use that car and does so in a negligent manner, causing injury and/or damage.^[70]

Under Delaware law, a child's negligence is to be determined by a standard of care which "is based upon an individualized assessment of the child's age, intelligence, maturity, and other factors relevant to the conduct involved."^[71]Although Delaware has adopted a comparative negligence standard rather than a contributory negligence, a minor's negligence is determined by the same common law standard.^[72]

F. PENNSYLVANIA