Joint and several liability is the concept whereby one defendant can be held liable for the full amount of an obligation, usually damages in tort, regardless of their share of responsibility. A perfect example is a four car chain accident. The last car in the line, hits the third car, pushing the third car into the second, and the second into the first. Without each of the cars, the first car never would have been damaged. All parties have a percentage of liability to the injured driver in the first car, but under joint and several liability the plaintiff can pick which party to sue and from whom to collect damages. HB 1902, allows juries to consider the relative blame of each party who could have been sued by the plaintiff. State representative Dwight Kay sponsors this bill, attempting to improve the business climate. Clearly, plaintiff attorneys are opposed, claiming that it won’t be fair for their clients.
Joint and several liability allows the plaintiff to collect from whichever defendant they choose, usually electing the defendant with the most money. Defendants will try to have the damages reduced to reflect their share of responsibility, but courts often refuse to do so. The defendant who was forced to pay the entire judgment, must seek contribution from the other parties. This potentially creates more litigation which the proposed bill would correct.
In an attempt to prevent a defendant from pointing the finger at a party not present in the courtroom, plaintiffs will be forced to name every defendant that might be responsible. And regardless of whom the plaintiff names in the suit, defendants will likely argue that a non-present party was the responsible one. If that is the case, jurors may not be able to accurately decide percentages of responsibility. In turn, this could cause settlements to be less frequent because a defendant’s incentive to go to trial increases if he can argue he was less responsible and thus should pay less. The exact effect the bill will have is not clear, but if this bill does in fact get passed, the landscape of joint and several liability’s use in the courtroom will be changing.
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