Tort reform is causing several states to limit joint and several liability, which is giving victims less recourse to receive compensation for their injuries. Here Seeger Weiss looks at joint several liability and its important role in protecting the rights of those wrongfully injured.
Used in civil cases, joint and several liability holds two or more persons liable for damages awarded by a judgment. Liable parties can be either individuals or mutually responsible persons of a group. The winning victim (or plaintiff) may collect their entire judgment from any one of the liable parties or from all of the liable parties, in various amounts, until the judgment is paid in full. If any of the defendants can’t pay their equal share of the award, the other defendants must make up the difference.
Defendants can be held jointly and severally liable if their concurrent acts brought about injury or harm to the victim. The acts don’t have to be simultaneous: they must simply contribute to the same event. For example, let’s say an electrician negligently installs an electrical line, and years later the line is inspected and approved by another electrician. When the victim (or plaintiff) is subsequently injured by the faulty line, the victim may sue both electricians and hold them jointly and severally liable.
A small number of states do not follow the doctrine of joint and several liability. They practice proportionate or comparative liability, which prorates a percentage of the damages attributable to each defendant’s conduct and assigns an amount. In joint and several liability, a victim can pursue an obligation to pay against any responsible party. Then it becomes the defendant’s responsibility to spend their time and resources contacting the other defendants and sorting out their respective share of liability.
Examples of Liability
Here are additional examples: If Julie is struck by a car driven by Ryan, who was served alcohol in B&B’s Bar (and the state has Dramshop laws allowing a party injured by an intoxicated person to sue the establishment who contributed to intoxication) then both Ryan and B&B Bar may be held jointly liable for Julie’s injuries.
Let’s say Julie is awarded $10 million for her injuries and Ryan was 90% at fault and B&B 10% at fault. Under joint and several liability, Julie could go after Ryan to pay the full amount. If he can’t pay, she could go after B&B for the full amount. In comparison, under proportionate liability, Julie would only get the $1M from B&B if Ryan can’t pay.
As you can see, under joint and several liability, victims are protected. In our above example, Julie can recover the full damages from either of the defendants. If Julie sued B&B alone, B&B would have to pay the full $10M despite only being at fault for $1M. B&B would then either have to join Ryan as a defendant in a suit against Julie or would have to pursue a separate action against Ryan for $9M. Regardless of the outcome of either action, B&B would remain liable to Julie for the full $10M.
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