Puerto Rico Senate adopts bill to eliminate joint and several liability

 About two weeks ago, the Puerto Rico Senate approved a bill to undo over 120 years worth of precedents and eliminate joint and several liability in Torts cases.  

If you have followed this blog for some time, or are familiar with my work, you won’t be surprised to know that I think this is a bad result.  I have, in fact, authored several law review and law journal articles in defense of joint and several liability.

Interestingly, even though some people think that law review articles are irrelevant and that no one reads them, the preamble to this new bill cites two of those articles of mine and includes a long quote from one of them.  In both articles I explained why it is a bad idea to do what the bill does, but I guess the authors of the bill thought their project would not be convincing unless they explicitly tried to refute my work. 

This is not the first time that lawmakers have tried to eliminate joint and several liability in Puerto Rico.  Most recently, it had been part of the proposal for a new Civil Code in the early 2000s and then again in 2019-2020.  For good reasons, though, both times, the propoal was quickly defeated and did not make it to the new code.

Yet, now, with the backing of the insurance industry, and to the detriment of future injured plaintiffs, they got the bill through the Senate and it now awaits the Governor’s signature.  I heard there is a group of law professors trying to convince the Governor not to sign it, but I don’t know what to expect.  

If you can read Spanish you can take a look at the bill here.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

Connecticut Supreme Court adopts "alternative liability doctrine"

Assume that three men enter an abandoned building without permission.  While there, they drink alcohol and smoke cigarettes.  One of them fails to extinguish a cigarette, which starts a fire that spreads quickly and destroys the building.  As a result, the owners of the building sue the men but then realize they can’t prove which of the three defendants actually caused the fire.  Assuming it is true that only one of the three men caused the fire, none of them should not be liable since the plaintiff has the burden to show that a defendant's conduct caused their injury, right?

Does that sound familiar?  Does it sound like a law school hypo?  Of course it does, because it is essentially the question every law school student talks about when discussing the famous case Summers v. Tice, which you probably don’t remember by name but you do remember the facts:  two hunters shoot in the direction of the plaintiff.  Only one of them hits him, but the plaintiff could not identify which one.  In that case, the court decided to impose liability on both (unless either one could prove they were not the cause of the injury) as if they had both committed the act. 

I am writing today about this because just a few days ago, the Connecticut Supreme Court decided to adopt this same approach and apply it to the case with the fire in the building scenario. 

In doing so, the Court explained how the new rule (sometimes referred to as “alternative liability”) would be applied: 

“...the rule applies only when the plaintiff can demonstrate, first, that all of the defendants acted negligently and harm resulted, second, that all possible tortfeasors have been named as defendants, and, third, that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”

When these three threshold requirements are met, the alternative liability doctrine has been recognized as a limited exception to the general rule that the plaintiff must prove that each of the defendants caused the plaintiff’s harm.

As in Summers, the Court admits that adopting this approach can result in the imposition of liability on a defendant who was actually not at fault.  Yet, it is better to be unfair to a negligent defendant than to leave an innocent plaintiff without a remedy.  As the Court states, “[f]aced with the choice of leaving an injured plaintiff without a remedy, on the one hand, or requiring two wrongdoers, both of whom had acted negligently toward the plaintiff and had created the situation [in which the] plaintiff was injured, [to] bear the burden of absolving themselves on the other, it seems clear that the latter approach represents the fairer, more sensible alternative.”

I should note that the term "alternative liability" is very unfortunate because it suggests that the result of the application of the doctrine is liability, when in fact it isn't.  The result is to allow the plaintiff to support the element of causation without the type of proof that is typically required for it.  If we are going to be technically correct, we could say the doctrine is an "alternative proof of causation" doctrine.

The case is called Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson and you can read it here.

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Should a social media app company be liable for the damages caused by a driver distracted by the app while driving? -- UPDATED

Earlier today I posted a note about a recent case on whether a person who sends a text to someone who is driving should be liable for injuries caused by the driver if the driver is distracted by the text.  Now, here is a story with a similar theme.

Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application.  You should go to AU and read the full report to get the whole story, which I will just summarize here.

The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat.  According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video.  Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way).  She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage.  But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.

But now back to whether the plaintiff should have a cause of action against Snapchat.  One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case.  After all, the driver was the one that acted and caused the accident, right?  Why should the social media company be responsible for how the user uses the app?

The problem is that the issue is not that simple.  The fact that one actor is more culpable than the other, does not mean the other is not culpable at all.  The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.

I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."

In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm.  Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.

Whether Snapchat should be as liable as the driver,... that's is different another question.

But whether you can make an argument that Snapchat should be liable at all...  Yes, I think you can...

UPDATE 5/10/16, 8:40 pm:  Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.

New case on whether a person who sends a text to someone who is driving can be liable if the driver gets distracted by the text

Back in 2013 I reported that the New Jersey State Appeals Court had ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. See here, here and here.  To my knowledge, that was the only case that had been decided that way.  Until now.

Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.

Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor

According to Illinois law, when a party settles a claim in good faith against one tortfeasor, the finding of good faith automatically discharges that tortfeasor from any liability for contribution to another tortfeasor.  Now, the Appellate Strategist is reporting that the Illinois Supreme Court had agreed to clarify whether a workers’ compensation settlement eliminates the right to a contribution claim the same way.  Go here for the full story.

Auto accident victim sues the person who called driver on a cellphone

Last year I wrote about a case in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here and here.) In that case, the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable but only if the texter knew that the recipient was driving and likely to read the text message while driving. The case is called Kubert v. Best.

After discussing the case, I wrote that "one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.")"

The opportunity to answer that question has arrived.  The Chicago Daily Law Bulletin is reporting today that the estate of a woman who died in a car accident has filed a wrongful-death lawsuit against a man who called the cellphone of the driver involved in the accident. The case is named Hope Farney v. Matthew Geerdes, et al.

Not surprisingly, the plaintiff has alleged that the caller knew the call’s recipient was driving and that it would provide a distraction from the road.

Also not surprisingly, the defendant has moved to dismiss the case, arguing the complaint failed to allege a recognizable duty against him and failed to allege the negligent conduct was a proximate cause of the accident. 

Kansas legislature adopts bill to increase cap for non-economic damages

A couple of weeks ago, I wrote that the Kansas Senate and House passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250,000 to $350,000.  The Senate and House versions were different in that the Senate version would eliminate the collateral source rule and allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance.  For that reason, I wrote that "[h]opefully, the House version will prevail. One important goal of tort law is to shift the cost of accidents onto the persons who are responsible for the harm. The collateral source rule helps preserve this goal because, without it, it’s likely that costs would be shifted away from the wrongdoer to the injured party and his or her insurance provider. Exonerating the tortfeasor because the plaintiff can "afford" the cost of the accident also does nothing to advance another goal of tort law: deterrence."

Fortunately, the House version did prevail.  The bill (available here) gradually raises the cap and rejected the Senate's attempt to eliminate the collateral source rule.  The gradual change in the cap is described as follows:  $250,000 for causes of action accruing from July 1, 1988, to July 1, 2014; $300,000 for causes of action accruing on or after July 1, 2014, to July 1, 2018; $325,000 for causes of action accruing on or after July 1, 2018, to July 1, 2022; and $350,000 for causes of action accruing on or after July 1, 2022.

Thanks to the TortsProf blog for the update and some links to the bill and other important documents.

Attempts in two sates to increase the amount of caps on damages

In California, consumer advocates have filed over 800,000 signatures to place a voter initiative on the ballot in November 2014 to, among other things, raise the cap on damages in medical malpractice actions, at least allowing it to keep up with inflation.  The PopTort has more information and links.

Meanwhile, the TortsProf blog is reporting that in Kansas  the state Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250,000 to $350,000. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision.

Hopefully, the House version will prevail. One important goal of tort law is to shift the cost of accidents onto the persons who are responsible for the harm. The collateral source rule helps preserve this goal because, without it, it’s likely that costs would be shifted away from the wrongdoer to the injured party and his or her insurance provider.  Exonerating the tortfeasor because the plaintiff can "afford" the cost of the accident also does nothing to advance another goal of tort law: deterrence.

Podcast on whether there can be liability for texting a driver

I recently reported that the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable for damages caused by the driver if the driver is distracted by the text if the texter knew that the recipient was driving and reading texts while driving.  Here is a link to a 30 minute podcast discussing the case.

New Jersey Appellate Court recognizes cause of action against someone who sends a text to someone who is driving at the time

Back in May, I wrote about a case pending in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here.) The plaintiff argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

As I wrote back then, both plaintiff and defendant had good arguments and the issue depended on the circumstances:  "If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances."

Now comes news that the Appellate Division of New Jersey Superior Court has decided the case holding that the person who sent the text can be liable but only if the texter knew that the recipient was driving and reading texts while driving.  Given the facts of the particular case, though, the court held that no liability could be imposed against the text sender in the case because there was no evidence that the sender was aware the driver would read her text as he was driving or that he would respond immediately.

The court summarized its conclusion this way:

"To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions ... We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time."

Given what I wrote back in May, you can guess I think that is the correct decision.  The case is called Kubert v. Best and it is available here.

Having said all that, one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.") 

It should be noted that the court is not imposing vicarious liability on the texter for the negligence of the driver (as has been reported elsewhere).  The court is clear that the liability imposed on the defendant is based on the defendant's own negligence (and that is why it is limited to those cases where the defendant knew the driver was driving and would likely be distracted).  This is similar to the accepted notion that a passenger could be liable for negligently distracting a driver. 

Liability for Boston marathon bombings?

Could someone other than those who conspired to bomb the Boston marathon be liable for the injuries caused? Probably not, and here is why.

Should there be a cause of action against someone who sends a text to someone who is driving at the time?

The TortsProf blog is reporting on an interesting case before the New Jersey appellate court. In the case, the plaintiffs were injured by a driver who was distracted by a text message. The interesting part is that the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

 

The argument sounds reasonable to me, and it is consistent with tort law principles. However, the argument of the defendant is also valid. A text message (like an e-mail message) is sent so that the recipient can read it whenever he or she can, not necessarily immediately. The defendant-texter apparently argued that she could not control when the message was going to be read.

 

Now, here is the thing. Both arguments are right. The question is what are the circumstances. You can't generalize here. If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances.

 

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not too uncommon.  The plaintiff sued two physicians (and "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  The both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   It is not entirely correct to say that because there is vicarious liability, the resident does not have to contribute to the settlement.  The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

NOTE I posted this in my Professional Responsibility blog too.

California Supreme Court changes rules on apportionment of liability

The Wall Street Journal is reporting (here) that the California Supreme Court has changed a long-standing rule on liability among multiple defendants.  In a case called Leung v. Verdugo Hills Hospital (available here), the court ruled that a plaintiff who settles with one defendant among several does not release the rest from liability.  Although apparently this is a break from a long standing rule, it is not surprising to me since this is the generally accepted rule.

The new rule is fair and attempts to advance the public policy of encouraging settlements. The court explained that the recovery from defendants other than the one who settles will be adjusted by the amount of the settlement, not the percentage of fault of the party that settled, thus preserving the use of the doctrine of joint and several liability and creating an incentive for the non settling defendants to settle.

The incentive to settle is also preserved because once a party settles, the non settling party is not allowed to go after the settling party for contribution.  This is the rule in Illinois and it makes a lot of sense.  Once a party settles, that party should be considered to be out of the picture entirely.   Otherwise, there would be no incentive to settle. 

However, in Leung, the California Supreme Court explained that this should not be the case if the settling party and the plaintiff were found to have settled the case in bad faith.  In such a case, defendants who don’t settle and find themselves with an excess share of liability can sue for contribution against the defendant who did settle.  In combination with the previous rule, this encourages parties to settle and to do it in good faith.

Georgia Supreme Court opinion on apportionment of liability

Here is a link to an interesting opinion by the Georgia Supreme Court on whether a defendant can ask they jury to apportion part of the liability to a person who is not a part to the lawsuit. The jury in the case found the defendant had been negligent in failing to prevent criminal attack on its property.  Then the US District Court for the Northern District of Georgia certified two specific questions to the state supreme court.

Based on statutory interpretation, the state supreme court found that (1) the jury is allowed to apportion damages among a property owner and the criminal assailant and (2) instructions or a special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights.  Specifically, the court concluded that "[t]he rules of statutory construction, including reliance on ordinary word meanings, dictate that an assailant who evades hotel security to intentionally abduct, rob, and assault a hotel guest is, at the very least, partially at "fault" for the brutal injuries inflicted by the assailant on that guest. As a party at fault, such an assailant must be included with others who may be at fault, e.g., the property owner in a premises liability action, for purposes of apportioning damages among all wrongdoing parties. The case is called Couch v. Red Roofs Inn, Inc and it is available here.

Not all jurisdictions agree with this approach.  Some jurisdictions allow juries to apportion liability only among parties present at trial. For more on this case go here.

New information on Summers v. Tice

The blog Concurring Opinions has a short comment on the classic old case Summer v Tice - the case most law students remember as the case of the hunters who shot the plaintiff in the eye.  The post, by Kyle Graham, states he visited the California State Archive and reviewed the old case file where he found some interesting new information.

The case, as you may remember, is used to discuss the issues that arise when the plaintiff can't identify who from among two negligent actors actually caused the injury.  In the case, there were two negligent actors but  only one could have actually caused the injury. Given these circumstances, the court decided to switch the burden of proof to the defendants to show that they did not cause the injury.

The old case file, apparently, tells a slightly different story.

Apparently, Tice argued that the plaintiff could have identified the person whose conduct caused the injury but lost that chance due to his own negligence.  Tice testified that he had been using No. 6 shot, whereas Simonson (the other shooter) had been using No. 7½ shot. He argued that the two pellets are of slightly different size, and capable of distinction and that the reason that the distinction was not made was that the plaintiff lost the pellet after it was removed.  In fact, the plaintiff himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.

Thanks to TortsProf for the link to the new information.

Pennsylvania eliminates joint and several liability

Bad news for victims of injuries in Pennsylvania.  Gov. Tom Corbett today signed the ”Fair Share Act,”  which does away with joint and several liability.  Tort reform groups are celebrating the announcement as a "major legislative victory."  Unfortunately, what it is, is a shift from a system that erred on the side of protecting injured victims to one that errs on the side of those who injure them.  Both approaches are problematic, and the better option - a compromise through which both sides share part of the loss - was not even considered. 

This is not a major victory for anyone; it is a major disappointment that advances a flawed and, quite simply, bad public policy. 

For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later.

The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury" or, as it is often stated, that a defendant can be made to pay 100 percent of a jury award even if he is only 1 percent liable for the injury suffered by a plaintiff.

The problem is that this argument is based on a fallacy.

The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other.

Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury.  Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair.

One problem with this argument is that the defendant who has to pay has the right to make the other defendant pay him whatever amount he paid in excess of his level of negligence.  So, if the system is unfair at all, it is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence.

Now even assuming that the other tortfeasor is not available, here is the other problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative to each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that part of the injury because it would be contrary to the law to impose liability for something the defendant did not cause.

Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that all defendants caused all of the injury because we just can’t tell what part of the injury was caused by any individual defendant.

Given this, jurisdictions have to decide between two options: in the first option a defendant who caused an injury but who was less negligent the another one may end up paying more than the other defendant.  This may seem unfair to the defendant who pays but it assures that the victim obtains a full recovery.  In the second option, the victim does not get a full recovery while a defendant who caused the injury is relieved from paying for part of the injury they casused.  Pennsylvania has abandoned the first option in favor of the second one.

Although joint and several liability (the first option) is prefereable to several liability (the second one), neither option is the best. 

There are two other possible options that are better.
One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount.

If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts.

Another, alternative that is definitely more fair than simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. 

Now, THAT is fair.  But, of course, not surprisingly tort reformers have no interest in this...  That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury.

If those are the only alternatives, the answer is easy: err on the side of the victim. It would be better, though, to consider the alternatives available as a compromise.

The PopTort has its own comment on this here.