Navigating the global liability defence agenda

The consequences of being even 1% liable when two or more defendants are at fault – the doctrine of joint and several liability

Many defendants who get sued for causing or contributing to an accident in the United States hold the false belief that their exposure is limited to their own percentage of responsibility. However, they often learn, much to their surprise, that despite their seemingly nominal responsibility for the accident, they are liable for the full amount of the judgment pursuant to the doctrine of “joint and several liability.” When two or more parties are jointly and severally liable, each party is responsible for the full extent of damages (Restatement (Third) of Torts: Apportionment of Liability § 10 (2000)). In this context, the joint acts that give rise to an injury do not require parties to agree to act in concert.

As long as an injured party can prove that a defendant’s alleged wrongdoing was a contributing factor to the harm endured, full liability may attach.

The usual objection to joint and several liability is that it wrongs a minimally responsible but financially prudent defendant when the primary tortfeasor co-defendant is unable to pay his share of a judgment. Consider the following hypothetical. One sunny afternoon in San Francisco, a drunk driver barrelled through a busy intersection, sped through a red light, and ultimately plowed into a world-renowned neurosurgeon. At the time of the incident, the surgeon was jaywalking across a busy four-lane street. According to the surgeon, she avoided using a nearby marked crosswalk because she did not think it was safe due to its midblock location and poor visibility.

Miraculously, the driver survived the accident unscathed. The surgeon was not so fortunate; the impact threw her body across the street, and she sustained a traumatic brain injury. Despite multiple surgeries and months of rehabilitation programs, the surgeon was left with permanent brain damage that impaired her motor function. Her august medical career was over. She could no longer operate on patients. Seeking redress for her injuries, the surgeon sought out a lawyer.

The surgeon’s attorney initially observed that any damages award would likely be limited given the driver’s marginal financial resources. However, the attorney then discovered that the City of San Francisco was responsible for designing, planning and installing the crosswalk that the surgeon deemed too dangerous to use just before her accident. The attorney then sued both the driver and the City of San Francisco. 

At trial, the jury awarded the surgeon $14,800,000, finding that the driver was 99% liable and the City was 1% liable. Initially, the City was relieved to have escaped with a favorable result. However, the driver turned out to be judgment-proof. Consequently, the City had to pay the entire amount of the verdict under the doctrine of joint and several liability. 

This illustration is more than fiction. Instead, this hypothetical is loosely based on Sills v. City of Los Angeles, where a driver, high on drugs, sped through a stop sign and collided with another vehicle. In Sills, a passenger in the car suffered permanent brain damage as a result of the accident. Alleging that the City of Los Angeles’ failure to trim bushes obstructed the driver’s view, the passenger sued both the driver and the City. A jury awarded a verdict of $2,160,000 jointly against the driver and the City. Despite a finding that the city of Los Angeles was only 22% responsible for the harm, it had to satisfy the entire judgment because the driver was judgment-proof.

The inequity of California’s joint and several liability law as applied in Sills, above, drove the citizens of the state of California to modify the state’s joint and several liability law by ballot initiative in 1986. Since passage of Proposition 51, now codified in California Civil Code section 1431, a solvent joint tortfeasor may have to pay 100% of economic damages (e.g., past and future medical expenses, past and future lost earnings, etc.) but will only be responsible for an amount of noneconomic damages (past and future pain and suffering) equal to that solvent tortfeasor’s own proportion of fault assigned by the jury.

Why does the law foist this seeming inequity on a tortfeasor with minimal fault but substantial assets or sufficient insurance? Tort law is a patchwork of ancient doctrines the main goal of which is to provide a remedy to individuals who have wrongfully suffered injury to their property or person. Not only does the law deter wrongful behavior, but it also provides aggrieved parties with a means for redress. The doctrine of joint and several liability is grounded in these basic principles because it prioritizes compensating innocent persons wrongfully harmed by tortfeasors. In practice, the doctrine favors a plaintiff’s ability to collect damages from any defendant regardless of degree of fault. This outcome is justified, the law says, because leaving an innocent plaintiff without a means to collect is considered more unfair to society than burdening a minimally responsible defendant who happens to have the ability to pay.

Joint and several liability was once applicable in every US state, but, that is no longer the case.  The majority of states have adopted modified versions of joint and several liability. In some jurisdictions, such as California discussed above, a plaintiff’s recovery may be offset by his/her comparative fault or by his/her relative proportion of fault for the overall damages. Some states, like Nevada, apply joint and several liability, but will limit the plaintiff’s recovery if that plaintiff is found to have been more than 50% at fault. Finally, the following fifteen jurisdictions retain pure joint and several liability: Alabama, Arkansas, D.C., Delaware, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia, and West Virginia (Restatement Third §17 cmt. a. at 151-99.)

If you, your company or your insured is sued in the United States, do not assume that your exposure is minimal just because of your seemingly tangential connection to and responsibility for the accident. Depending on the US state where the suit is pending, you could find yourself faced with an exposure that you never contemplated.

Therefore, be sure to consult your attorneys as to whether joint and several liability applies in the case jurisdiction, as the answer could make a tremendous difference in how you value the case and set your reserves.