Joint and Several Liability

Joint and several liability is a rule followed in some states, in which two or more parties can be held independently liable for the full amount of a personal injury plaintiff’s damages, regardless of their respective degrees of fault. The parties that are found responsible for the accident are known as tortfeasors. Under the joint and several liability rule, a single tortfeasor can be held responsible for the total amount of damages even if he or she is only responsible for the plaintiff’s injuries to a small degree. If the plaintiff collects from only one jointly and severally liable defendant, that defendant can pursue the other responsible parties for contribution. Usually, the defendants’ liability for damages is reduced to the extent that the plaintiff was negligent. Not all states follow the rule of joint and several liability, and many follow a hybrid rule.

Some states, such as Alabama and Delaware, do follow a pure rule of joint and several liability. This means that if a plaintiff in a multi-vehicle car accident wins a money judgment of $100,000 against four defendants that are jointly and severally liable, each of which was assigned 25% of the fault by a jury, the plaintiff can try to collect the full $100,000 from any one of the defendants. The plaintiff may collect the $100,000 from a defendant that is fully insured or has substantial assets. That defendant can then try to seek contribution from the other defendants.

However, many states follow the doctrine of pure several liability, which makes each person responsible for paying damages only to the extent of his or her proportional fault for an accident. In Georgia, for example, if a plaintiff is partially to blame for an accident, but his or her fault is less than 50%, the total liability is reduced, but each tortfeasor or defendant is only responsible to the extent he or she is responsible for the accident. For example, a tortfeasor that is 60% at fault, when the total damages are $100,000, will only be responsible for $60,000. If that tortfeasor is uninsured and judgment-proof, the plaintiff will not recover that $60,000.

Some states that generally follow the rule of several liability use joint and several liability in cases where defendants act in concert to injure the plaintiff. Some states, such as California and Florida, take a hybrid, variable, or middle of the road approach. If a plaintiff in Florida settles with some of the tortfeasors, the tortfeasor who settles waives his or her right to contribution from the other tortfeasors. However, the remaining tortfeasors are entitled to a setoff for the settlement amount. This means that the settlement amount will be subtracted from the jury’s damages award.

Why Do Some States Follow Joint and Several Liability?

The doctrine of joint and several liability reduces the risk to a plaintiff that one or more defendants are judgment proof. When a defendant is judgment proof, a judgment cannot be collected against him or her because he or she has no assets. Instead of shifting the risk to the injured plaintiff that a defendant is insolvent or uninsured, the risk is shifted to the other defendants because they are partially at fault.

If all defendants are judgment proof, a plaintiff will not be able to recover. In cases involving multiple defendants, however, the chances are good that at least one defendant will have insurance or substantial assets.

Criticism of Joint and Several Liability

The doctrine of joint and several liability is criticized because it can result in severe inequities. For example, a defendant that has only 10% responsibility for an accident who is jointly and severally liable with a defendant that is 90% at fault for an accident may have to bear the financial burden of the full amount of damages, even though his or her mistake was quite minor.