Allocation of Fault Among Joint Tortfeasors: This Is Not Child’s Play

“Your flat screen is shattered!” These are not the words a parent wants to hear from a babysitter after they return home from a night on the town. However, part of every parent’s job is to assess what happened, assign blame, and render the appropriate consequences to the offending party or parties. Sounds a lot like a lawsuit, right? Unfortunately for this columnist, sometimes the best illustrations hit very close to home. Thus begins our introduction into allocation of fault in litigation.

Tortfeasor A is the older brother and tortfeasor B is the younger brother. The only witness was the babysitter, who did not actually see the damage occur. A and B were engaged in an epic battle of Beyblades, while the witness was attending to the baby sister in another room. Beyblades are small but heavy metal discs that spin like a top. They battle by crashing into each other in a confined “stadium,” which is about 24 inches in diameter. The battle concludes when one blade stops spinning and is thus defeated.

In the epic battle, B defeats A, and A defames B by saying, “You are a loser and a liar. I beat you!” B, as he is prone to do, gets angry and purposely throws his Beyblade. However, B’s defense is that he was provoked by A and did not intend to hit the television.

This invokes the ire of the author, who becomes the would-be plaintiff. Are A and B “joint tortfeasors”? Can the author seek damages from—or perhaps, more appropriately, retribution on—both A and B, or just B? The answer lies in the varying laws among states regarding indemnity and contribution. 

A joint tortfeasor is commonly defined as two or more persons whose negligence in a specific event causes damages to the plaintiff. Generally, the tortfeasors must act together to commit the offense. “Contribution” is a claim brought by one joint tortfeasor against another joint tortfeasor to recover some of the monetary damages the first tortfeasor owes to the plaintiff as a result of a settlement or judgment in favor of the plaintiff. It seeks to allocate the amount of damages appropriately based on the degree of fault. “Indemnity,” on the other hand, seeks to shift the entire loss from one tortfeasor to another. 

Most states allow contribution among joint tortfeasors, while a small minority limit or do not allow contribution. Claims for indemnity are frequently allowed by contract. Some states disallow both indemnity and contribution under common law but may provide for limited exceptions.

When more than one tortfeasor is at fault, it is important to have an understanding of the state’s laws on allocation of fault because they can have a big impact on your potential exposure. There are three basic types of allocation of fault in the United States: pure several liability, joint and several liability, and modified joint and several liability.

Pure several liability allows a plaintiff to collect damages from each joint tortfeasor in the amount of their assigned fault. In this situation, the court assigns a dollar amount or percentage of the total verdict to each liable defendant. The plaintiff is then allowed to collect damages up to the assigned amount from each defendant. If one defendant is not able to satisfy his portion of the judgment, the plaintiff is not allowed to make up that shortfall from the other liable defendant(s). This has the disadvantage of preventing the plaintiff from being made whole if a defendant is judgment-proof. However, it protects defendants with assets from paying more than their assigned responsibility for the damages.

Joint and several liability prevents the situation where a plaintiff is not made whole by allowing him to collect his damages from any defendant until he collects the full amount of a verdict. Accordingly, states with joint and several liability do not assign an amount or percentage of a judgment to each liable defendant. Rather, each defendant is liable up to the total amount of the judgment regardless of the amount of fault it bears. However, the plaintiff can never collect more than the total amount of the judgment.

Finally, some states have what is referred to as modified joint and several liability. This is a blend of pure several liability and joint and several liability. States following this approach hold a defendant responsible for the entire verdict (as in joint and several liability) but only if they are found to be at or above a particular percentage of fault.

In our example, if A and B are both at 50 percent fault under pure several liability, the plaintiff could collect half the cost of a replacement television from each. If contribution applied and A could prove B was responsible for his share of the damages, then A could make B pay him back for his share. Under joint and several liability, the plaintiff could collect all of the judgment from either A or B, assuming both were held liable.

Unfortunately for me, both A and B are judgment-proof, and I will be forced to absorb the loss myself.  

SIDEBAR 

A State-by-State Look at Joint and Several Liability

The application of pure joint and several liability is on the decline between the various jurisdictions. That’s the conclusion found in Wilson Elser’s report, “Joint and Several Liability: 50 State Survey,” written by Eugene T. Boulé and Judy C. Selmeci in 2012.

The authors state, “In most jurisdictions, the pure form of the doctrine has given way to modified versions, including those that take into account the plaintiff’s comparative fault. Some states have adopted approaches that protect, at least to some degree, the unfairness that might otherwise befall ‘deep pocket’ defendants who become targets simply because they have the means to satisfy a judgment. Regardless of these shifts, however, states remain mindful of the need to continue to ensure the ultimate goal of the joint and several liability doctrine: an innocent plaintiff’s recovery.”

The full report, including a state-by-state overview, is available at www.wilsonelser.com.