Last Wednesday Pennsylvania Commonwealth Court struck down an amendment title the "Fair Share Act" that would abolish joint and several liability. The joint and several liability rule states that each defendant in a law suit can be held responsible for producing the full amount of damages won by a plaintiff. Some "tort reform" advocates argue that joint liability is unfair because it renders defendants who may have only been responsible for a percentage of those damages liable for more than they caused.
When reviewing this story in the news last week I found a number of publications celebrating the courts decision as a blow against tort reform. Very few, if any of these, however, reinforced just why joint liability is important. Being a lowly intern, I wasn't really sure why joint liability made sense either, and the only defenses of the rule I found seemed inadequate (like the one you can find here). So I did some research as to why this law is on the books in the first place. Here's the answer:
The California supreme court put it rather well in American Motorcycle Assn. v. The Superior Court. "Liability attaches to a concurrent tortfeasor in this situation not because he is responsible for the acts of other independent tortfeasors who may also have caused the injury, but because he is responsible for all damage which his own negligence has caused." That decision argues that the doctrine of joint and several liability is based upon the rationale that culpable defendants, rather than the injured plaintiff, should bear the risk of inadequate contribution by others responsible for the harm.
Suddenly this seems so obvious its hard to believe I didn't see it before. The maximization of recovery to an injured party is a higher priority than equitable apportionment of liability among negligent parties. Basically, it's more important that the innocent victim get the full recovery offered to him by the law than it is for several parties who have already been proved negligent to be allowed to avoid damages because they were not the only negligent party. Without joint liability, if one negligent party is unable to fully recompense the injured party then the other negligent parties are not held responsible to make up the difference and in those cases the victim would get the short end of the stick.
Understanding joint and several liability is important because the decision of the Commonwealth Court was based on a technicality - the "Fair Share" provision was attached to a completely un-germane piece of legislation that dealt with DNA testing of sex offenders. This means it is very likely that the Court may be faced with the issue of whether to uphold joint liability on its own merits soon. For a more comprehensive analysis of joint liability see Professor Richard Wright's Amici Curiae Brief to the Supreme Court in the case of Norfolk & Western Railway Co. v. Freeman Ayers.
