Tuesday, March 15, 2011

Pennsylvania bill seeks to eliminate joint and several liability

Bad news for victims of injuries in Pennsylvania. A story in the Pittsburgh Post Gazette states that a new bill seeks to eliminate joint and several liability as the system for apportioning liability in the state. This is not news in and of itself since joint and several liability is a common target of tort reformers and the arguments for the attack are, of course, the same old/usual ones. 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." A recent article argued this by saying that a defendant found to be "1 percent liable in a lawsuit could potentially be held responsible for 100 percent of the financial verdict." 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. Here is the problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative 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 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 we just can’t tell what part of the injury was caused by either one. That aside, because I am a reasonable man, I am willing to compromise (unlike most tort reformers). So, let’s consider some other options. Simply eliminating joint and several liability is not the only option. Let’s say for the sake of argument that it is unfair for a defendant who is found to be negligent at a very low level to have to pay the full amount of the injury. The first thing to note is that this 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. So what can be done to make it less unfair on the "low level negligent" defendant? 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 that 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. Not surprisingly, at least according to the newspaper story, none of this is being discussed. 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 may be better, though, to consider the alternatives available as a compromise.

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