Joint and Several Liability - Arguments For and Against Joint and Several Liability

Arguments For and Against Joint and Several Liability

Joint and several liability is premised on the theory that the defendants are in the best position to apportion damages amongst themselves. Once liability has been established and damages awarded, the defendants are free to litigate amongst themselves to better divide liability. The plaintiff no longer needs to be involved in the litigation and can avoid the cost of continuing litigation. As Dean Prosser observed:

Here again is the typical case that two vehicles which collide and injure a third person. The duties which are owed to the plaintiff by the defendants are separate, and may not be identical in character or scope, but the entire liability rests upon the fact that each has contributed to the single result, and that no reasonable division can be made. —

Defenders of the principle of joint and several liability further argue that it protects victims from being under compensated if one of the defendants cannot pay his or her share of proportionate liability. A tortfeasor, even if only 1% at fault, is the better party to shoulder the burden if the primarily responsible party is unable to compensate the victim fully.

Opponents of the principle of joint and several liability note that its use (instead of proportionate responsibility) has led to cases in which a party with a very minor part of the responsibility unfairly shoulders the burden of damages. The classic example is the uninsured drunk driver who injures someone; the plaintiff will sue both the insolvent drunk driver and the state highway department (or automobile manufacturer), hoping to hold the latter 1% or 2% responsible, thereby forcing them to pay the entire award. Joint and several liability, reform supporters argue, leads to lawyers searching for "deep pockets" to sue (in the expectation that they will settle rather than risk trial), even though those defendants may only be remotely related to an incident.

Richard Wehe, Assistant Chief Counsel at the California Department of Transportation, said:

I can tell you that in many, many settlement conferences or mediations I am confronted with plaintiff's lawyer's statements that, 'I only need to establish that the state is 1 % at fault and I can recover all of my economic damages.' —

Where a financially wealthy party can be joined as a defendant, a plaintiff has a greater chance of recovering damages than when the defendants have very limited economic resources or are financially insolvent, or "judgment proof".