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2002 FINAL STATELEGISLATIVE PROGRAM CONTROVERSIAL ISSUE ISSUE: JOINT AND SEVERAL LIABILITY SUMMARY: The doctrine of joint and several liability, developed over centuries by English and American courts, provides that when a person suffers an injury as a result of the negligence of two or more defendants, each defendant becomes liable for the entire injury and the total amount of damages. Thus, a defendant whose wrongful conduct has injured the plaintiff cannot avoid liability for the total damage award by showing that some other wrongdoer also was responsible for causing the injury. Supporters of joint and several liability argue that without it plaintiffs would be required to identify every potential wrongdoer, prove the misconduct of each that caused the injury, provide a reasonable basis for apportioning the damages against defendants, and recover a separate judgement against each. These added burdens would deprive many deserving plaintiffs of compensation and allow considerable wrongful conduct to go unchecked. Requiring defendants to be jointly and severally liable recognizes that a plaintiff's injuries would not have occurred at all without each defendant's misconduct. In many cases, injury produced by the combined negligence of several defendants could have been completely avoided had any one defendant not been negligent. The retention of joint and several liability increases the probability that injured parties will receive adequate compensation for damages, thereby ensuring one of the primary goals of tort law. Proponents of abolishing joint and several liability contend it is unfair to require defendants who may be liable for a small part of an injury to pay, in some cases, the entire amount of the award. As a consequence, impecunious defendants or those beyond the jurisdiction of the court where the action is filed may escape responsibility while those who are able and available to pay are disproportionately affected. In the 1987 General Assembly, the MSBA opposed unsuccessful legislation that would have abolished joint and several liability. The issue was referred to the Section of Negligence, Insurance and Workers’ Compensation the next year which recommended NO POSITION until specific legislation was available. As no bills concerning joint and several were introduced between 1989 and 1992, the MSBA did not have the opportunity to voice a position on joint and several liability. In 1993, a bill linking modification of joint and several liability and comparative fault was filed. The MSBA opted to support the bill with amendments, but the proposal was withdrawn before the Association could comment. A similar measure was filed in 1996 and once again withdrawn, but only after the MSBA had testified in support with amendments to abolish joint and several liability if comparative negligence was approved. In 1997 and 1998, the MSBA again testified in support of a comparative negligence bill that would modify joint and several liability. This legislation failed in the House Judiciary Committee in 1997 and 1999, and was defeated in the Senate Judicial Proceedings Committee in 1998. In 2000, there was no legislation concerning joint and several liability and the bill on comparative negligence died so quickly that there was no opportunity for the MSBA to comment on any joint and several liability amendments to the proposal. The MSBA did have the chance to testify on the comparative negligence bill with the recommendation of an amendment on joint and several liability in 2001, but the measure died before the amendment process could begin. MSBA 2002 POSITION: No position until specific legislation is available. SAMPLE LEGISLATION: See Comparative Negligence Section
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