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There is a substantial constituency spearheaded by manufacturers, liability insurance interests, municipalities, and professionals like CPAs that seeks to abrogate or at least modify the joint and several regime.(n200) Advocates for this position argue that the emergence of comparative fault principles makes joint and several liability obsolete and unnecessary.(n201) This "tort reform" group has met with some success in both the courtroom and in state legislatures.(n202)

Opponents of changing the joint and several rule point to another change in the common law that has softened the harshness of the joint and several rule on defendants. Under common law, actions for contribution among joint tortfeasors were not permitted.(n203) Today, however, such actions are allowed under the majority rule.(n204) Therefore, it is argued, the fairest scheme is for culpable defendants to be assigned the burden of seeking relief from the other defendants, rather than forcing an innocent victim to bear the costs of chasing down each and every malefactor in order to collect each one's share of the harm.(n205) To this, the accounting profession responds that a right of contribution or indemnity is a hollow remedy indeed when one's co-defendants are likely to be judgment-proof.(n206)

A second, more traditional argument against the proposal for abrogating joint liability is that in choosing which party on whom to assign the cost of injury that is initially uncollectible, it is better to punish a proven wrongdoer than an innocent victim.(n207) To this, defendants reply that extreme facts expose the fallacy in this moral argument. Can it possibly be just, they ask, to assign a slightly negligent tortfeasor -- say, one percent culpable under a comparative fault determination --to bear 100 percent of the plaintiff's damages when the principal culprit is immune or insolvent?(n208) This is, after all, a risky world for the innocent as well as the culpable. As one court put it, "Between one plaintiff and one defendant, the plaintiff bears the risk of the defendant being insolvent; on what basis does the risk shift if there are two defendants, and one is insolvent?"(n209)

In John Wade's lucid exposition of eight historical steps in the development of the joint and several doctrine,(n210) he notes that each succeeding "step evolved in an effort to be more fair in the treatment of the parties."(n211) He points out that originally, joinder of multiple tortfeasors was possible only when they acted in concert.(n212) If the torts were concurrent, but not concerted, the plaintiff had to maintain separate actions, but could recover his entire damages from whichever defendant he chose to sue. To make things easier for plaintiffs, joinder later was allowed, permitting the plaintiff to receive judgment for the full amount of her damages from each d e fend ant.(n213)

The next development permitted the joining of multiple tortfeasors in a single action, with apportionment of damages when separate (measurable) injuries were incurred.(n214) This was followed by the enactment of statutes permitting pro rata contribution actions by defendants when a single indivisible injury was experienced by the plaintiff, even in cases where joint judgments had not been rendered against the defendants.(n215) Still later, third party practice procedures made it possible for "deep pocket" defendants, if sued alone, to bring in other defendants to "obtain a determination of the appropriate share of liability to be placed on each of them, and obtain contribution."(n216)


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