Recently, Governor Corbett called for the repeal of a 100 year old common law doctrine known as “Joint and Several Liability”. Under this doctrine, if a person is injured because of the negligence of 2 or more parties, an injured victim may recover the full amount of the award against any one of the wrong-doers. This is true even if another wrong-doer is not insured sufficiently to cover their share of the damages, or has no assets, or is otherwise unable to pay.
As an example, imagine a case where a young single woman purchases a house. She then buys an alarm system for protection. One night, a violent criminal breaks into her house. The security system was faulty and not installed correctly and as a result does not work. The criminal sexually assaults the woman causing severe injuries.
A jury finds that the incarcerated criminal is 60% at fault and the security company is 40% at fault. Under current law the woman could recover all of her damages from the security company. If joint and several is repealed, she could only recover 40% from the company and the rest would be uncollectable from a broke, imprisoned criminal.
Supporters of repealing joint and several claim it is unfair to make a defendant pay 100% of the damages when the jury found they were only 40% at fault. This argument has some superficial appeal, but does not withstand scrutiny when one considers the harm repealing joint and several would do to two categories of people the sponsors of repeal never mention, victims and taxpayers.
Obviously, a perfect result in an injury case is that a plaintiff is compensated fully and fairly for the losses he has suffered, and each defendant pays their precise fair share of the damages as apportioned by the jury. However, whenever a defendant is unable or unavailable to pay their share, a perfect result is no longer possible. Either a victim is not going to be fully compensated, or another negligent party is going to pay more than their percentage of fault. It is unavoidable that some party in the case is going to bear the burden and suffer the risk of a defendant who can’t pay.
For the past century, we as a society have believed that it is substantially more unfair to put that risk on an injured person than on a wrong-doer based on the simple notion that justice is better served by placing risk on a guilty party rather than an innocent one. Keep in mind that no defendant has to pay anything unless they are found to be at least partially at fault.
Further, the law allows an over-paying defendant to seek contribution for any such overpayment from other parties who have not paid their fair share. Usually these defendants are corporations or insurance companies and, as such, are in a much better position, because of the availability of resources and possible prior relationships to track down other wrong-doers than some individual who is hurt and broke.
Finally, and most importantly, the consequences of an underpayment to a victim are usually much more devastating than a well-insured or corporate defendant paying more than their apportioned liability. If a person is injured, they may have significant unpaid medical bills, they may not be able to support their family or pay their mortgage, or fund their children’s education.
This can not only destroy the victim’s family and lead to tragic results such as innocent injured people losing their homes and not being able to pay for nursing care they need, it can also place a burden on the taxpayers for at least some uncompensated medical care, student loans that can’t be repaid, etc.
The fact is, if joint and several liability is repealed we will all pay for some of what wrong-doers will no longer be responsible for. For other losses, there are no government programs to fill the gap. Victims will just suffer so that big corporations and insurance company can enjoy a “friendlier business climate”.
As I debated this issue when it was last considered, I asked the prime sponsor of the repeal to just tell me what would happen to a victim who couldn’t pay his bills if repeal passed. He refused to answer the question. That’s because currently, there is no answer. Real people will be hurt without any consideration of what becomes of them and their families. That is why repealing joint and several liability without any attempt to address the harm this would do is so horrifically irresponsible.